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Abstract

In Swanson v. Roman Catholic Bishop of Portland, Albert and Ruth Swanson sued their former pastor, Father Maurice Morin, after the couple's marriage counseling sessions with Father Morin led to a sexual relationship between Father Morin and Mrs. Swanson. The Swansons brought claims against Father Morin for negligent and intentional infliction of emotional distress and negligent pastoral counseling. They also sued the Roman Catholic Bishop of Portland, a corporation, and Bishop Joseph Gerry in his personal capacity (collectively referred to as the “Church”) for negligence in selecting, training, and supervising Father Morin. The Maine Superior Court dismissed the claims against the Church for negligent selection and training of Father Morin, holding that enforcement of those claims in a religious setting would violate constitutional protections of free exercise of religion. The Superior Court did, however, allow the Swansons' claim of negligent supervision to proceed against the Church. The Swansons' negligent supervision claim against the Church then came before the Maine Supreme Judicial Court, sitting as the Law Court, on interlocutory order based on the motion of the parties. A divided Law Court held that secular agency principles requiring employee supervision cannot be applied to a church and its clergy because state enforcement of a church's duty to oversee its employees violates the free exercise of religion clauses of the United States and Maine constitutions. This Note will argue that, although the First Amendment ruling in Swanson has not been overruled, its force, minimal in the first place, has diminished in light of recent current events--most notably, the sexual abuse scandals within the Catholic Church. Swanson's broad, seven-year-old constitutional holding lacks value as a precedent and should not be upheld under the doctrine of stare decisis. Accordingly, the Swanson decision should be overturned the next time a similar case comes before the Law Court. Before this can happen, however, the Law Court will have to deal with an antecedent issue that the Swanson Court avoided: whether Maine agency law recognizes the tort of negligent supervision as a cause of action under agency principles in any employer/employee situation.

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