The Boston Globe | Abuse in the Catholic Church

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Verbal OK could bind church, professor says

By Michael Rezendes, Globe Staff, 5/8/2002

If attorney Mitchell Garabedian and Boston Archdiocese lawyer Wilson Rogers Jr. orally agreed to a settlement of 84 molestation lawsuits against former priest John J. Geoghan, the settlement could well be binding even though church officials didn't sign it.

On the other hand, if the church is able to use a provision of canon law to show that Rogers did not have the authority to negotiate on behalf of church officials, the settlement may be invalid, according to Suffolk University School of Law professor Michael Avery, the author of a widely used manual on Massachusetts evidence.

''Massachusetts case law is clear: A verbal agreement is sufficient to settle a claim. You don't need to have a signed agreement,'' Avery said.

But the overarching issue of whether civil law trumps canon law in the heated dispute over the shattered $15 million to $30 million Geoghan settlement is unlikely to be settled for weeks - after a planned hearing before Superior Court Judge Constance M. Sweeney that has yet to be scheduled.

In the meantime, Garabedian will prepare for a civil trial of the 84 lawsuits filed by 86 individuals against Law and 16 other church officials by taking a highly unusual sworn deposition from Cardinal Bernard F. Law today.

''The archdiocese's lawyers had apparent authority to bind their clients into a contract,'' said Garabedian. ''They informed me that the cardinal was aware of all the details and restrained me from conducting additional discovery to the detriment of my clients. Now I'm going to trial.''

Yesterday, a motion by the Globe and other news organizations to attend Law's deposition was denied by Sweeney without a hearing.

Law and other church officials trumpeted the Geoghan settlement on March 12, following nearly a year of negotiations directed by mediator Paul A. Finn, of Commonwealth Mediation. ''This settlement is an important step in reaching closure for these victims who have long endured the damage done to them by John Geoghan,'' Law said in a prepared statement that day.

But on Friday the obscure archdiocesan Finance Council rejected the agreement on a 10-3 vote. Church officials said that in taking the action, council members had brushed aside recommendations from Law and Rogers to approve the Geoghan settlement, adding that the council's vote marked the first time in Law's 18-year tenure as archbishop of Boston that one of his recommendations had not been followed by the board.

Buttressing the argument that the Geoghan settlement might be valid in spite of the council's vote, Avery and other legal analysts said that if lawyers for the church asserted in court that a settlement had been reached, the agreement could be binding even without the signatures of Law and 16 other church officials.

''If the lawyers stood up in court and said they had a deal, it makes it more likely there's an enforceable settlement,'' said Eric Green, a professor at Boston University Law School and a federal mediator in the Enron case.

''There is real ground for claiming the archdiocese was bound, even though Law didn't sign the agreement and the Finance Council didn't approve it,'' said Mary O'Connell, a contract law professor at Northeastern University School of Law.

Garabedian said Sweeney's belief that a settlement had been reached is evident in her decision, made after the settlement was announced, to delay his initial notice to depose Law.

Garabedian also accused Rogers and the church of acting in bad faith, saying he now believes church officials negotiated a settlement they did not believe they would have to implement. To complete the agreement, Garabedian had to obtain the consent of the 86 plaintiffs, who had differing claims and would be entitled to different amounts of money.

''In retrospect I think they were banking on me not being able to obtain all 86 signatures,'' Garabedian said. He said he delivered the signatures to Rogers on April 16.

Rogers did not return a call requesting comment yesterday, and an archdiocesan spokeswoman said he would not be available to discuss the settlement.

Canon law experts said yesterday that in voting down the agreement, the Finance Council acted correctly under canon law. Charles M. Wilson, executive director of the St. Joseph Foundation, a Texas group that assists Catholics in canon law procedings, said church law requires expenditures by larger American dioceses of $3 million or more to be approved by a diocesan Finance Council, College of Consultors, and the Vatican.

Under canon law, members of a Finance Council are appointed to five-year terms by the lead bishop, or archbishop. A College of Consultors is composed mainly of senior clergy in a diocese.

But Garabedian said he believes canon law does not apply in the Geoghan case because the alleged sexual abuse victims sued Law and the other church officials as individuals and did not sue the archdiocese.

Lawyers and others involved in settlements of clergy sexual abuse lawsuits said they had never heard of the requirement that a settlement be approved by a diocesan Finance Council.

''I don't even know if the Dallas diocese has one,'' said Sylvia Demarest, an attorney who helped negotiate a $31 million settlement for 11 victims of the Rev. Rudolph Kos in 1998. ''If there was a finance council involved, it was behind the scenes.''

A.W. Richard Sipe, a former priest who has testified for alleged victims in 62 clergy sexual abuse lawsuits, dozens of which have been settled, said the issue of Finance Council approval ''has never come up in my experience.''

But Bronson Havard, a spokesman for the Dallas diocese, said the Kos settlement was approved by the Finance Council and College of Consultors for the diocese. He did not know if the pact also had been approved by the Vatican.

Michael Rezendes can be reached at rezendes@globe.com.

Matt Carroll, Stephen Kurkjian and Walter V. Robinson of the Globe Staff contributed to this story.

This story ran on page A16 of the Boston Globe on 5/8/2002.
© Copyright 2002 Globe Newspaper Company.


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