In considering a motion by the Archdiocese of Milwaukee for summary judgment to disallow certain claims made against it in the Chapter 11 reorganization, Chief Judge Susan V. Kelley of the U.S. Bankruptcy Court for the Eastern District of Wisconsin granted summary judgment Wednesday, March 4, on nine of the 10 claims that comprised the motion.
In granting the judgment for claimants known as A-270, A-397, A-455, A-474, A-352, A-14, A-121, A-511, A-454 and A-459, Kelley asked attorneys representing the archdiocese whether or not these claimants would be entitled to therapy under the plan for reorganization.
Daryl Diesing, an attorney with Whyte Hirschboeck Dudek representing the archdiocese, replied, “It’s our intention that anyone who could legitimately benefit from therapy would receive it.”
Frank LoCoco, also from Whyte Hirschboeck Dudek and representing the archdiocese, added, “Many claimants have asked for therapy since Chapter 11 began.”
Archbishop Jerome E. Listecki has insisted since the start of Chapter 11 that any plan of reorganization establish a therapy fund for abuse survivors. This would provide ongoing therapy and counseling for victim survivors for as long as they are needed.
Counseling and therapy have been provided by the archdiocese since it began its outreach to victim survivors in 1989, and continued when it established the independent mediation process in 2004. In 2011, in the early months of the bankruptcy proceedings, the court approved an archdiocesan request to continue providing counseling and therapy to victim survivors.
In a written statement following Kelley’s ruling, Jerry Topczewski, chief of staff for the archbishop, termed therapy “the backbone of outreach and support for abuse survivors.”
“The therapy fund was a central piece of the archdiocese’s Plan of Reorganization and the archdiocese will insist that the therapy fund be widely accessible by abuse survivors in its amended plan,” he wrote.
‘No reason to delay’
Early in the hearing, during an exchange with Patrick Brennan, attorney for some of the claimants, Kelley, noting his request for a delay in making a decision, said the issue was whether or not the archdiocese knew the priest was abusing before abuse happened to Brennan’s client (A-474).
“At some point we have to have an end to this and today is that day. … Nothing shows me the archdiocese was derelict,” she said. “There’s no more reason to delay.”
The most intense discussion during the hearing focused on A-352, a claimant abused by Fr. Lawrence Murphy at St. John School for the Deaf. The claimant’s attorney, Michael Finnegan of Jeff Anderson and Associates, maintained the archdiocese knew that Murphy was an abuser before A-352 was abused.
To Kelley’s question whether the archdiocese had records that showed it knew that Murphy was an abuser, LoCoco responded, “We do not think these are admissible.” He added that if the documents were to come into court, what they revealed would be subject to interpretation and unable to support a fraud claim, which is what had been claimed. The documents included letters reporting hearsay about the priest’s behavior. Those writing, referred to and receiving the letters are deceased.
Kelley said, “If there’s a fact issue, I cannot grant summary judgment.”
During the discussion regarding the fraud claim of A-14, the first person to report abuse by Fr. Daniel Budzynski in 1971, Finnegan said, “if summary judgment is granted, we’ll have to appeal it.” This drew a sharp response from Diesing.
“There is no need to appeal the court’s decision. There’s been no effort to negotiate on any of these points,” he said. “It’s not fair to us to have to consider them all the same. We’re trying to balance these so we get to a legally fair result.”
No ‘negative misrepresentation’
In granting the summary judgment for A-121, Kelley refuted Finnegan’s arguments that each claim was a matter of “negative misrepresentation.”
“There is no evidence in the record that the archdiocese knew there was evidence of abuse before 1976,” she said. “If there was no evidence the archdiocese knew, then there is no ‘negative misrepresentation.’”
That there was no evidence in the record that the archdiocese knew the priests who abused claimants A511, A-454, A-459 had been abusers prior to the dates they were made aware of it by these claimants was grounds for Kelley to grant summary judgment.
Kelley noted that the claims of A-270 and A-397 had been dismissed with prejudice and on their merits by the Wisconsin Supreme Court.
“Neither has received a settlement from the archdiocese. These people haven’t had their day in court,” Finnegan replied. “You can set aside these cases (from the summary judgment).”
LoCoco responded, “We’re at a point of applying the law. If somebody won’t talk to you, we can’t negotiate.”
Kelley, in giving summary judgment to the claims, reiterated her concern that victims get therapy.
“I don’t want these people to feel like their claims are unworthy of providing them with accountability. If that means therapy, then they should receive it,” she said.
Topczewski said Kelley’s ruling affirmed what the archdiocese had said regarding “the majority of allegations of clergy sexual abuse, namely, that the vast majority of abuse was not known to the archdiocese until years after it occurred.”
