Preachin’ to the Judiciary in Texas

Attorneys Weigh in on Priests’ Defamation Case

Four priests are fighting Bishop Michael Mulvey after their names were published on list of accused clergy

CORPUS CHRISTI, Texas – A Texas court has dismissed defamation lawsuits filed by priests who accuse their archdiocese of defaming them by erroneously publishing their name on a list of credibly accused priests.

Bishop Michael Mulvey of the diocese of Corpus Christi published the list of accused priests in January. Of the 20 names, three of the priests on the list — Msgr. Michael Heras, Fr. John Feminelli and Fr. Jesús García Hernando — maintain their innocence and sued Bp. Mulvey and the diocese over their inclusion on the list. A fourth priest is considering filing suit.

According to the suit, “Defendants knew the statement was false and acted with reckless disregard for the truth. The publication of the statement was made with malice.”  Greenwell is appealing the ruling on behalf of his clients.

On Monday, a Texas district judge dismissed the lawsuit, ruling that it involves a Church matter over which a secular court has no jurisdiction.

Church Militant spoke with Andrew Greenwell of Harris and Greenwell, who is representing the four priests on the list. He said he is disappointed by the ruling but wasn’t surprised by it.

Greenwell said “Texas law is unsettled in this area,” and even though he believes he has the evidence to prove Bp. Mulvey and the diocese had wronged his clients, the judge believed the jurisdictional question should be answered first. Greenwell is appealing the ruling on behalf of his clients.

Canon Law Violations

Two of the priests suing were accused of “boundary violations.” One of them has an “air-tight alibi” that proves he was not even in the country at the time the alleged victim claimed. The police even dismissed the criminal investigation, deciding not to pursue the case.

The other priest was accused by an adult and shouldn’t have been included on the list, as it confined itself to those who allegedly molested minors.

By publishing their names and the allegations against them, the priests’ canonical rights were arguably violated. According to a new 21-point sex abuse investigation guidelines published by Pope Francis in February, Point 11 advises caution in the event of false allegations to “consolidate the collaboration with all people of goodwill and with the operators of mass media in order to recognize and discern real cases from false ones and accusations of slander, avoiding rancor and insinuations, rumors and defamation.”

Point 14 protects the right of clergy to their good name:

[T]he principle of natural and canon law of presumption of innocence must also be safeguarded until the guilt of the accused is proven. Therefore, it is necessary to prevent the lists of the accused being published, even by the dioceses, before the preliminary investigation and the definitive condemnation.

Monsignor Heras was placed on administrative leave after the allegation was made. He has remained in priestly limbo, unable to exercise his priestly duties for years. Greenwell said after they filed the defamation lawsuit “was the first time they [the diocese] interviewed anyone.”

“Four and a half years without any kind of resolution,” Greenwell said. “There is very little remedy as a priest to hurry things up.”

Monsignor Heras has also been prevented from raising funds for his defense; Greenwell is representing him pro bono.

Greenwell noted that all of these priests are beloved and are suffering greatly from the loss of their vocation. He asked for prayers for the four priests, “who are definitely going through a dark night.”

Church Autonomy Doctrine

Church Militant spoke with Richard Thompson, president and chief counsel of the Thomas More Law Center and an expert on the separation of Church and State.

Thompson said that for the most part, courts have declined to hear cases on matters pertaining to the internal workings of religious organizations. Called the ecclesiastical abstention doctrine or church autonomy doctrine, it forms the basis for courts to determine if they should intervene.

He said this was not the first defamation case that priests have brought against the Catholic Church: “If it can be shown that the Church was applying its own internal standards, then this is a matter of Church governance, then the priests are going to lose, even if they appeal it.”

“The issue is not what Texas law states, but what does the Supreme Court say, because ultimately, the Constitution prevails and is the supreme law of the land,” he explained.

“Historically, the courts are very reluctant to get involved with Church issues,” Thompson said. “They don’t want to get entangled in trying to determine whether the bishop is right or whether the priests are right.”

Thompson said the First Amendment and the Establishment and Free Exercises clauses were written to protect all religious institutions from interference from the federal government. Later, the 14th Amendment applied it to state governments.

The courts tend to give “special deference” to internal church governance, preferring members to work out differences within their own structures, such as through the canon law process.

Last year the U.S. Supreme Court refused to hear a defamation case brought by Fr. John Gallagher against the diocese of Palm Beach, Florida.

Father Gallagher’s lawyers argued that the Supreme Court should hear the case, as the lower courts are in “disarray” over the matter, and because these claims could “be resolved under neutral principles of law and did not require any determination of church doctrine nor interference in the internal operations of the church.”

The diocese argued it was a matter of “internal priestly discipline” and “Civil courts must abstain from reviewing the diocese’s ministerial decisions and serving as an arbiter of truth in a dispute over internal priestly discipline.”

The Supreme Court did not explain its reason for declining the case.

Thompson said this is a controversial issue because of all of the claims of sexual abuse, “but it is also an issue that has some historical grounding to it.” He mentioned states’ recent attempts to intrude into the confessional.

“How would you like it if all at once the government says this is an important enough issue for us to ferret out sexual abuse, that we’re going to bring a priest into a grand jury and ask him to testify about what parishioner A said to him about a sexual encounter that parishioner had?” Thompson asked.

“In one sense, you might be helping a priest who has been defamed, but in another sense, you might be creating a large problem getting the courts involved in ecclesiastical scope,” he explained. “Once you allow that to occur, even for some good reasons, you’re going to create a greater mess.”

While sexual abuse of a child is a canonical delict, it is also a violation of the state penal code.

Greenwell said that although he generally agrees with Thompson in the ordinary case, this defamation claim is different in that “it involves accusations that the priest is credibly accused of a crime under Texas law.”

While sexual abuse of a child is a canonical delict, it is also a violation of the state penal code.

In other words, whether the priest is or is not credibly accused of sexual abuse of a minor can be determined without reference to canon law, but with reference to the State penal code.

This differs, for example, from a priest who would claim defamation for having been involved in a homosexual relationship with an adult and thereby removed from the ministry, because this, while a canonical offense, is not a criminal offense under State penal law.

In a letter brief submitted to the court, Greenwell cited case law showing similar challenges surviving the jurisdictional question.

Anti-SLAPP Defense

Greenwell explained in addition to the First Amendment defense, dioceses are also using anti-SLAPP laws (strategic lawsuits against public participation). Anti-SLAPP statutes are laws to protect people from meritless lawsuits arising from defamation, tortious interference or related claims arising from exercising their First Amendment rights.

Anti-SLAPP laws vary from state to state, and in Texas, it’s covered under the Texas Citizens Participation Act (TCPA), considered among the broadest in the country.

Anti-SLAPP statutes are supposed to help the little guy.

Passed with bipartisan support, lawmakers revised the law to curtail what has become an overuse of the law and which created a backlog of cases. It’s been applied to all kinds of employment issues unrelated to the First Amendment.

The revised TCPA laws are slated to take effect on September 1.

Currently, TCPA is being used to file motions to dismiss cases in the early stages, thwarting plaintiffs’ chance to move forward with their lawsuits, with the immediate impact of putting the case on hold.

In the case of Msgr. Heras, Greenwell had filed a motion for discovery that would force the diocese to hand over all documents pertaining to the allegation and the diocese’s investigation.

In the published list, the diocese claimed that Msgr. Heras admitted to child abuse and sex with a minor. Greenwell wanted to see Msgr. Heras’ alleged confession for himself, along with any other relevant review board documents.

Monsignor Heras has denied the allegation in court documents: “Heras asserts that he has never sexually abused a minor, abused a minor in any way, nor molested sexually any victim, underage or otherwise.”

The diocese filed a motion to dismiss under the anti-SLAPP statute and essentially put an end to the plaintiffs’ ability to obtain further documents. Greenwell said it was ironic they’re being applied in this case, as “anti-SLAPP statutes are supposed to help the little guy.”

Greenwell explained the judge had to do a balancing act between the rights of the parties involved. Unfortunately, he sided with the Church’s First Amendment rights versus his clients’ rights to open access to the courts.

According to Greenwell, Bp. Mulvey “painted himself with an immunity he doesn’t have.”

By explaining to the courts that whatever they did was done according to the Church’s internal procedures, “they weasel their way into these gray areas” that fall under the church autonomy doctrine, Greenwell said.

Since “there’s no case in Texas that clearly delineates what the test is … trial judges would rather have the court of appeals guide them,” he explained.

One of the weaknesses of our judicial system is that trial judges are elected officials, he said. These cases are a political nightmare; on the one hand, the judge can be seen as persecuting the Catholic Church, and on the other, he can be seen as going soft on “abusers.”

Greenwell believed he has a solid case to present. As there was no precedent in Texas, he based it on a similar appeal in Austin that established the test needed to move forward.

Greenwell argued he was able to prove that his clients were tortiously harmed because the credibly accused list was published online and accessible to media. A tort (personal injury) can be proven since the accusation of child sex abuse is so extreme and heinous that their names will be forever linked to it.

Bishop Mulvey also held a press conference and spoke to reporters to explain why he released the video.

Greenwell believes this moves the issue into the public arena and it is no longer an internal Church matter.

Greenwell thinks Bp. Mulvey released the list as a self-protective measure and as a public relations move to prevent an attorney general investigation. In November, the archdiocese of Galveston-Houston was raided by Texas law enforcement officers.

In May, the diocese of Dallas was raided.