Sovereign Immunity

• Author: International Law Group, PLLC
• Pages: 180-182

Page 180

In June 2004, alleged victims of sexual abuse by Roman Catholic clergy filed a class action in Kentucky federal court against the Holy See. Among the Plaintiffs is James O'Bryan who claimed to have been sexually abused by a Catholic priest in the 1920s, and who was allegedly acting within the authority granted by the Holy See. The Holy See is both a foreign state and an unincorporated association. It is also the central government of the Roman Catholic Church. In 1962, it issued a confidential policy to keep secret any reported instances of sexual abuse (the "1962 Policy").

The U.S. intervened as amicus curiae and supported the legal immunities of the Holy See as a foreign state. The district court partially granted the Holy See's motion to dismiss the claims due to lack of subject matter jurisdiction as the Holy See is immune on several claims under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602. Plaintiff s appealed, arguing that the FSIA does not immunize the Holy See from suit on the grounds alleged in their complaint, and the district court thus does have subject matter jurisdiction. The U.S. Court of Appeals for the Sixth Circuit affirms the district court.

As for proving immunity, "[t]he burden will remain on the foreign state to produce evidence in support of its claim of immunity. Thus, evidence must be produced to establish that a foreign state or one of its subdivisions, agencies or instrumentalities is the defendant in the suit and that the plaintiff's claim relates to a public act of the foreign state - that is, an act not within the exceptions in §§ 1605-1607. Once the foreign state has produced such prima facie evidence of immunity, the burden of going forward would shift to the plaintiff to produce evidence establishing that the foreign state Page 181 is not entitled to immunity. The ultimate burden of proving immunity would rest with the foreign state." [Slip op. 5]

"The district court correctly applied the FSIA's burden shifting process. It first determined that the Holy See was a foreign state and thus eligible for immunity from suit under the FSIA. ... Having done so, it considered the allegations in Plaintiff s' complaint that a number of exceptions to FSIA immunity applied and concluded that the tortious act exception did in fact apply. ... As the district court correctly noted, the Holy See could still retain immunity if it could 'prove that the exceptions do not apply.' ...Such proof would...