Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]gmail.com.

The Vatican's Sex Abuse Oversight - Operational or Discretionary?

During Condoleezza Rice’s recent visit to the Vatican, the Holy See’s own Secretary of State, Angelo Sodano, asked that the US State Department intercede on its behalf in a class-action sex abuse lawsuit filed in Kentucky that the Vatican is not entirely comfortable with. As the National Catholic Reporter article helpfully points out, suing foreign entities in United States courts is mostly a fruitless task.

Mostly.

The Foreign Services Immunities Act allows for a few exceptions, “commercial nexus” being the most commonly employed (§1605(a)(2)). But the under utilized (and rarely successful) “non-commercial tort” section (§1605(a)(5)) would seem to cover the Vatican’s hand in the numerous sex abuse cases filed here:

(5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment;

However… that leads us to the exception of the exception:

except this paragraph shall not apply to –
(A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused[.] (emphasis added)

The question therefore will boil down to: Assuming the Vatican bears some oversight responsibility for the sex abuse crimes occurring on American soil (because plaintiff’s complaint will be viewed in a light most favorable to him/her when considering a motion to dismiss), is the Vatican’s oversight responsibility a discretionary function?

My gut instinct would be to say that the answer to that question changes according to circumstance. While the Vatican was not originally in the business of overseeing child molesters, it can no longer claim ignorance that a transformation of sorts has taken place. Indeed, despite its many contortions meant to pretend the problem does not exist, the Vatican’s main arguments (It’s the fault of gays and/or promiscuous American culture) will fall on deaf ears in an American courtroom. And not because the eevil secular humanists have taken over, but because those arguments are patently ridiculous.

It’s not entirely apparent how ‘discretionary’ would be interpreted in this statutory context, and and underabundance of case law doesn’t help focus things. The 9th Circuit distinguishes between “operational” and “discretionary” acts of a government. This test has been employed in Thompson v. US, 592 F.2d 1104, 1111 (9th Cir. 1979), Olsen v. Mexico, 729 F.2d 641, 648 (9th Cir., 1984), and derives from a a pre-FSIA case, Dalehite v. US, 346 U.S. 15 (1953), where the Supreme Court defined discretionary as:

“[M]ore than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion.”

In Olsen, perhaps the most promising case in helping the sex abuse complainants get past the motion to dismiss, plaintiffs were relatives of prisoners being transported to Mexico as part of the Prisoner Exchange Treaty between Mexico and the United States. Because the Tijuana airport was so ill equipped, the plane crashed. The court found that the negligence of the Government in maintaining the airport was “operational” in nature as opposed to “discretionary.”

So then, is covering up decades of child abuse a matter of policy? Does running a pedophilic dating service require government decisionmaking at the highest levels?

Or is negligence, which has surely been elevated to recklessness by this juncture, operational by nature? States don’t plan to act negligently nor recklessly pursue goals as a matter of policy.

The Holy See would argue that they have confronted the issue of sex abuse as a state as evidenced by issued various public statements which resulted from meetings meant to establish a coherent policy positoin. Categorically then, the Vatican would claim that sex abuse is a discretionary function simply because it has considered the matter and confronted it as a matter of policy.

(Many would certainly (and fairly) argue with this, but realize that categorical tests employed by the courts do not consider related factual issues or even the particular nature of the state – the issue would be restricted simply to whether oversight by a sovereign entity (any sovereign entity) regarding sex abuse occurring in United States is, by its nature, operational or discretionary for the purpose of extending liability to the negligently overseeing state.)

It’s worth researching more deeply and perhaps in a subsequent post I’ll examine the entire line of §1605(a)(5) cases (there aren’t many) to see if I can’t discern a more exact doctrine.

But I can’t help but think that had the Mexican government decided, in prior meetings, as a matter of policy, to let the Tijuana Airport rot, that their motion to dismiss would have prevailed. I could be wrong, but I would like to think that gross negligence would have somehow trumped.

One wildcard here is the fact that the Vatican is only a state in the loosest sense of the term. It fits almost none of the objective criteria of statehood (a permanent population (you only live in Vatican City if you work in Vatican City); a defined and substantial territory (1/8 the size of Central Park); a government (ok, they have one.. but who are they governing?); and capacity to enter into relations with other states (ok, they can have this one too… but the treaties they do enter into are notoriously one-way – who in the Vatican can be bound?)). Many states indeed recognze the Holy See as a state, and the UN sees them as a non-member permanent observer, like Switzerland. This gives the Holy See enormous pull, including a de facto veto in all conferences.

But what if the United States ceased recognizing the Holy See as a state? While this doesn’t seem like a likely possibility this week, it could be on the horizon. The Holy See is unlike any other state in that it more closely resembles a religious mission, and in that capacity, controls agents operating in various other states, in a respondeat superior sense. Those agents enjoy protection, take orders from, and pay outside allegience to their corporate body politic. Under the same circumstances confronting us today, replace “Holy See” with any other state that comes to mind, and you get the idea. But these reasonable points have an uphill climb in this country, where so much deference is granted to religion that it has long since gelled into a blind-spot.

And a court cannot derecognize a state for the purpose of assigning liability under the FSIA as a purely constitutional matter, especially where numerous treaties between this coutnry and the Vatican exist.

But the Kentucky class action has Sodano unnerved enough to have asked the Bush administration to intercede. And if they do, all the parties should be shamed right onto the carpet.