Wisconsin Law Blog

Date: 07/16/2008 05:03 PM

By SCOTT BAUER
Associated Press Writer

MADISON, Wis. (AP) _ The Wisconsin Supreme Court on Wednesday dismissed a lawsuit filed by five men who claimed two Roman Catholic dioceses should have reported sexual abuse claims against a teacher before he moved on to a Kentucky diocese and molested them.

The lawsuit alleged that the Diocese of Milwaukee told Gary Kazmarek to “leave Milwaukee quietly” in the 1960s before he moved to suburban Madison and later Kentucky, where he is serving a 13-year prison sentence for abusing the five men between 1968 and 1973.

The high court unanimously rejected the men’s claims that the Madison diocese was negligent in failing to contact police or warn employers that Kazmarek was known for sexually abusing children. The justices said the men did not allege that the diocese even knew Kazmarek was teaching at a Catholic school in Louisville, Ky., or that the archdiocese there had ever asked for references.

“Reasonable and ordinary care does not require the Diocese to notify all potential subsequent employers within dioceses and parochial school systems across the country, along with all parents of future unforeseeable victims,” Justice Louis Butler wrote for the court.

The Supreme Court said the Madison diocese’s failure to warn potential victims in other states did not constitute negligence. It deadlocked 3-3 on the portion of the lawsuit pertaining to the Milwaukee diocese, but a lower court ruling throwing out the case on different grounds still stands.

“Obviously I think it’s unfortunate because this is a teacher that molested students in two different locations and went on to do it again,” said Wendy Gunderson, the attorney for the men.

Attorney Donald Heaney, who represented the Madison diocese, said it wouldn’t make sense for any employer to have to track former workers for the rest of their lives.

“We don’t have a continuing duty to try to find out who in the world needs to be warned about something that may or may not happen,” he said.

The Diocese of Milwaukee did not immediately return messages seeking comment.

The plaintiffs accused the Wisconsin dioceses of covering up the teacher’s abuse of dozens of children in the 1960s while he taught at Catholic schools in Madison and Milwaukee.

The men were among 243 plaintiffs compensated under a $25.7 million church abuse settlement with the Archdiocese of Louisville. They were all under age 15 when they were sexually abused by Kazmarek, a Catholic school teacher and coach in Louisville.

After the settlement in Louisville, the men filed the lawsuit in Wisconsin.

The appeals court ruled the lawsuit was barred because the three-year statute of limitations for negligence claims started ticking no later than the last assault more than 40 years ago. The men argued that they did not learn of the alleged cover-up until 2002, so the statute of limitations should not apply.

The court said it was unnecessary to address the issue of the statute of limitations as it related to the Madison diocese because the men failed to state a negligence claim under Wisconsin law upon which they could be granted relief.

Justice David Prosser did not participate in the ruling. He withdrew from the case following reports that while serving as district attorney in Outagamie County in the 1970s he declined to prosecute a priest accused of child molestation.

The decision raises the question of whether Kazmarek’s victims in Wisconsin will get justice, said Peter Isely, Midwest director for the advocacy group Survivors Network for Those Abused by Priests. For that to happen, the state Legislature would have to loosen the statute of limitations, he said.

Mark Salmon, who says he was abused by Kazmarek in Milwaukee and who received $600,000 in a 1995 lawsuit, said insurance companies should force the Catholic Church to set up a bulletin board notifying other dioceses and schools when they fire sex offenders.

The Associated Press does not normally name victims of sexual abuse, but Salmon issued a public statement reacting to the court decision.

Copyright 2008 The Associated Press.