Holy liable

“Amer­i­cans don’t appre­ci­ate the vast pow­ers that inves­ti­gat­ing mag­is­trates have in Europe. It only takes one who wants to make a name for him or her­self to issue an arrest war­rant for the for­mer Pope.” —Nicholas Cafardi, Pro­fes­sor Duquesne Univ. School of Law “So much of this is unprece­dented so there’s noth­ing set in stone about it.” —Pamela Spees, Attor­ney Cen­ter for Con­sti­tu­tional Rights Immu­nity is a pow­er­ful thing. Granted to cer­tain gov­ern­ment offi­cials, judi­cial offi­cers, polit­i­cal ambas­sadors and other peo­ple in posi­tions of author­ity, it can also be given to sub­jects of crim­i­nal inves­ti­ga­tions, wit­nesses and other tar­gets of the crim­i­nal sys­tem. It can pre­vent lia­bil­ity, reduce it or shift it all together to a dif­fer­ent per­son or entity. Judges and mag­is­trates enjoy a lim­ited form of immu­nity for deci­sions that they make in the course of their duties on the bench. They are granted a per­sonal immu­nity over their pub­lic deci­sions. In essence, if you dis­agree with a deci­sion that a court has ren­dered, you may appeal that deci­sion to a higher court, but absent a show­ing of per­sonal mal­ice or malfea­sance, you may not bring a law­suit against the judge who issued the deci­sion. To allow those kinds of law­suits would bring the jus­tice sys­tem to a halt. Sim­i­lar pro­tec­tion from lia­bil­ity is granted to the charg­ing deci­sions of pros­e­cu­tors. A crim­i­nal defen­dant may appeal those charg­ing deci­sions, but absent a show­ing of pros­e­cu­to­r­ial mis­con­duct, they may not pre­vail in a suit directly and per­son­ally against the pros­e­cu­tor who made the charg­ing deci­sion. That’s not to say that lia­bil­ity may not lie with the state. Con­victed crim­i­nals who are exon­er­ated after spend­ing years in prison for crimes that they did not com­mit often sue and receive large set­tle­ments from the states that con­fined them. These awards arise out of deci­sions made by those pros­e­cu­tors and judges along with duly impan­eled juries but there is no per­sonal lia­bil­ity for offi­cials who made rea­son­able, though ulti­mately incor­rect, deci­sions along the way. With the recent and unprece­dented res­ig­na­tion of Pope Bene­dict XVI, legal schol­ars have asked whether the Pope’s res­ig­na­tion exposes him to civil lia­bil­ity by remov­ing a for­mer cloak of immu­nity that came with his title. The Jour­nal of the Amer­i­can Bar Asso­ci­a­tion addressed that issue recently in a piece by Debra Cassens Weiss. Attor­neys for the Vat­i­can argued that the Pope’s res­ig­na­tion doesn’t change his legal sta­tus at all. Their argu­ment goes like this: The Pope is the head of State of the Holy See, Vat­i­can City. The rela­tion­ship of Vat­i­can City to the U.S. is no dif­fer­ent than that of any other for­eign nation, be it Canada, Rus­sia or North Korea. Just as the high-ranking offi­cials of those coun­tries would have immu­nity (both from pro­vi­sions of Amer­i­can law and of inter­na­tional treaties) so too would the Pope. And because the Pope would almost cer­tainly be sued for deci­sions made in his offi­cial role or for respon­si­bil­i­ties aris­ing from that role, his immu­nity would remain intact despite his res­ig­na­tion. Attor­ney Jeff Ander­son, who has rep­re­sented plain­tiffs in law­suits against the Vat­i­can, agreed that the res­ig­na­tion would not affect any civil law­suits pend­ing in the U.S. or else­where. He expressed con­cern, how­ever, if the Pope emer­i­tus should decide to travel out­side of the Vat­i­can, par­tic­u­larly if any for­eign gov­ern­ments or their judi­cial sys­tems decided to inves­ti­gate the role of the Vat­i­can in any in civil or crim­i­nal case. Advo­cacy agen­cies are, not sur­pris­ingly, some­what more aggres­sive in their claims. The Asso­ci­ated Press reports that the Cen­ter for Con­sti­tu­tional Rights in New York has asked the Inter­na­tional Crim­i­nal Court to inves­ti­gate the Vatican’s response to priest sex abuse claims. The ICC doesn’t rec­og­nize inter­na­tional immu­nity, how­ever, so the Pope’s res­ig­na­tion has no effect on any action (unlikely as it may be) by the ICC. The Vat­i­can, gen­er­ally neu­tral polit­i­cally, is not a sig­na­tory to the ICC and so that court has no juris­dic­tion within the Vatican’s bor­ders. The Vatican’s legal rela­tion­ship is strongest with Italy due to treaties and agree­ments between the nations. And while the Pope’s sta­tus is likely no dif­fer­ent than that of any for­mer gov­ern­ment offi­cial who might travel after they leave office, the fact that there has not been a Papal res­ig­na­tion in mod­ern legal times means that this is a whole new world of legal inter­pre­ta­tion. David Hej­manowski is a Mag­is­trate and Court Admin­is­tra­tor at the Delaware County Juve­nile Court and a for­mer Assis­tant Pros­e­cut­ing Attorney.

Posted by Halley Miller on Mar 8 2013. You can follow any responses to this entry through the RSS Feed. Comments can be made below.