I don't have a lot to say about the Wisconsin Supreme Court's decision today in Hornback v. Archdiocese of Milwaukee. The Court affirmed the dismissal of claims against the Diocese of Madison and, by an even split, the Archdiocese of Milwaukee. The Diocese and Archdiocese were alleged to have known that one of its former employers had sexually abused children while working in their schools. The plaintiffs in this case, however, were not students at those schools but alleged they were abused by the former employee while he was working at a school they attended in Louisville Kentucky. The claim was that the Diocese and Archdiocese breached a duty to warn future employers of their former employee's past misconduct.
The Court unanimously (Justice Prosser did not participate)held that there is no such duty under Wisconsin law. That seems reasonable. A duty on the part of employers to seek out and warn unknown future employees of someone's misconduct seems unmanageable.
Marci Hamiliton, a law prof who argued the case for the plaintiffs and whose work focuses on what she regards as the law's excessive deference to religious institutions, says that it is a narrow decision in a rare case with limited future applicability.
Well, yes and no. The case has nothing to do with claims against the employer of someone who commits this type of abuse. (The plaintiffs here had already settled with the Diocese of Louisville.) But had the Court gone the other way, it would have resulted in a geometric increase in liability for Catholic dioceses and other employers.
There were additional allegations made against the Archdiocese of Milwaukee. The plaintiffs said that it had promised parents of the children abused in Milwaukee that it would refer the abusing employee for treatment and begged them not to call involve the police, but then failed to refer him to treatment. That apparently would have been enough to reinstate the claims against the Archdiocese for Chief Justice Abrahamson, Justice Butler and Justice Bradley, presumably on a theory of affirmative misrepresentation. Justices Ziegler, Crooks and Roggensack disagreed and, when there is a tie, the decision appealed from (which went in the Archdiocese' favor)stands.
The case is also significant for something else that it did not do. The Court did not address Wisconsin doctrine regarding the reltionship between cases like this and the dioceses' free exercise rights.