Can the Pope Be a Defendant in American Courts? The Grant of Head of State Immunity and the Judiciary's Role to Answer This Question

Pace International Law Review Volume 18 Issue 2 Fall 2006 Article 5 September 2006 Can the Pope Be a Defendant in American Courts? The Grant of Head of State Immunity and the Judiciary's Role to Answer This Question Dina Aversano Follow this and additional works at: https://digitalcommons.pace.edu/pilr Recommended Citation Dina Aversano, Can the Pope Be a Defendant in American Courts? The Grant of Head of State Immunity and the Judiciary's Role to Answer This Question, 18 Pace Int'l L. Rev. 495 (2006) Available at: https://digitalcommons.pace.edu/pilr/vol18/iss2/5 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact . COMMENTS CAN THE POPE BE A DEFENDANT IN AMERICAN COURTS? THE GRANT OF HEAD OF STATE IMMUNITY AND THE JUDICIARY'S ROLE TO ANSWER THIS QUESTION Dina Aversanot I. Introduction ....................................... 495 II. History of Foreign Sovereign Immunity and Head of State Imm unity ................................. 500 III. Current Heads of State Case Law ................. 507 A. Types of Claims Against Heads of State ....... 512 B. Foreign Sovereign Immunity: The FSIA's Discretionary Function Exception and Heads of State .......................................... 515 IV. Pope Benedict XVI, The Judiciary, and Resolving the Head of State Immunity Doctrine ............. 518 I. INTRODUCTION Since first enunciated by Chief Justice Marshall in 1812, the doctrine of sovereign immunity has been followed by courts that have "waived jurisdiction over certain activities of foreign sovereigns," foreclosing the possibility that a plaintiff may obtain redress from a transcontinental defendant located far from the American courtroom. 1 Marshall's words became the basic t J.D. Pace University School of Law, 2007; B.A. Boston College, cum laude, History and Economics. I would like to thank my parents, Philip and Mary, for their continuous love, support and generosity and my beloved grandmother, Dina Puiatti, for her incessant inspiration. A special thank you to the editors and associates of P.I.L.R. for their hard work and careful eyes in editing this piece. 1 Verlinden v. Cent. Bank of Nig., 461 U.S. 480, 486 (1983). 1 PACE INT'L L. REV. [Vol. 18:495 jurisprudence for the evolution of foreign sovereign immunity. His theory of absolute immunity placed the decisions concerning a foreign nation's immunity within the province of the Executive Branch, specifically delegating to the State Department 2 the task of issuing suggestions of immunity where appropriate. The Chief Justice explained that "as a matter of comity, members of the international community had implicitly agreed to waive the exercise of jurisdiction over other sovereigns in certain classes of cases." 3 His words elucidated the original rationale behind the theory of absolute sovereign immunity: the Executive Branch's control over decisions of immunity was necessary because of the "significant implications" a grant or denial of immunity may have on the United States' relationship with 4 foreign nations. A recent case, initially brought within the Texas state courts and subsequently removed to the federal system, named Pope Benedict XVI as a defendant in an action arising from the alleged sexual abuse of three minors by Roman Catholic clergy. 5 This case was not brought against a foreign state, but rather, only its head of state. The case, therefore, implicates another issue of the foreign sovereign immunity doctrine, namely, whether it applies to foreign heads of state. The three plaintiffs claimed that as the leader of the Roman Catholic Church, Pope Benedict XVI, who at the time of the alleged abuse was known as Cardinal Joseph Ratzinger, "designed and explicitly directed a conspiracy to fraudulently conceal tortious conduct." 6 The case raised the preliminary jurisdictional question of whether the Pope, as head of state for the Holy See, should remain a part of this lawsuit. The particulars of this suit highlight the continuously debated issues of when, if at all, a foreign head of state may be subject to the jurisdiction of a United States court and how suits involving heads of states should be resolved, in light 2 See A, B, C, D, E, F v. Zemin, 282 F. Supp. 2d 875 (N.D. Ill. 2003), affg sub nom. Ye v. Zemin, 383 F.3d 620 (7th Cir. 2004). 3 Austria v. Altmann, 541 U.S. 677, 688 (2004). 4 See Zemin, 383 F.3d at 627. 5 See Brenda Sapino Jeffreys, Pope Wants Head-of-State Immunity from Texas Suit, TExAs LAWYER, Sept. 9, 2005, available at http://www.law.com/jsp/ newswire-article.jsp?id= 1126083917974. 6 Id. https://digitalcommons.pace.edu/pilr/vol18/iss2/5 2 2006] CAN THE POPE BE A DEFENDANT? of the governing principles behind the foreign sovereign immu7 nity doctrine. The United States, along with various other nations, currently adheres to a doctrine of restrictive immunity, which permits courts to withhold immunity from foreign states for acts that are commercial or non-public in nature.8 The 1976 Foreign Sovereign Immunities Act (FSIA) 9 reflects the transformation from an absolute foreign sovereign immunity theory to a restrictive immunity theory. 10 The codification of Marshall's sovereign immunity concept recognizes that when determinining whether immunity should be granted, a distinction exists between a sovereign's public acts taken on behalf of the state and those acts that are primarily private and lack any nexus attributable to statehood." Previously, the executive and the judiciary answered questions regarding sovereign immunity alternately.12 By placing the determination of foreign sovereign immunity solely within the Judicial Branch, as distinguished from head of state immunity decisions, the FSIA creates a jurisdictional bar for litigants in the international legal arena. A plaintiff cannot make use of the domestic courts for redress against a foreign sovereign because subject matter jurisdiction is statutorily divested unless the sovereign's acts fall within the statutory exceptions. 13 However, what appears to be a simple device that clarifies when claims brought against a foreign state will be immune from the jurisdiction of United States courts is less clear when applied to determine whether claims which name a foreign nation's head-of-state as a defendant will be granted immunity. Moreover, Congress' 1976 decision to codify 7 See, e.g., Erin M. Callan, In re Mr. and Mrs. Doe: Witnesses Before the Grand Jury and the Head of State Immunity Doctrine, 22 N.Y.U. J. INT'L L. & POL. 117, 128 (1989); Jerrold L. Mallory, Resolving the Confusion over Head of State Immunity: The Defined Rights of Kings, 86 COLUM. L. REV. 169 (1986); Shobha Varguese George, Head of State Immunity in the United States Courts: Still Confused After All These Years, 64 FORDHAM L. REV. 1051 ( (...truncated)