Still Keeping Secrets

From the Fall 2009 issue of The News Media & The Law, page 22.

Years after a flood of abuse cases came to light, some Catholic groups still try to keep court records sealed.

A seven-year quest to unseal documents in 23 clergy sex abuse suits reached an end in late October, when the U.S. Supreme Court refused to review a Connecticut order unsealing more than 12,000 previously unreleased pages of court documents.

The high court refused to hear the Diocese of Bridgeport’s challenge to a Connecticut Supreme Court decision to release the depositions of an influential cardinal and other documents related to the abuse suits. The high court’s decision means the newspapers seeking the records have cleared the final legal hurdle and the diocese is out of options for stalling the records’ release.

The length of time it took to win access to the documents reflects how tenaciously the church and its various dioceses fight such access battles. They often argue that they are protecting the privacy of the innocent, and that revealing litigation information violates their First Amendment protections for the free exercise of religion.

Seven years in the making

In 2002, four newspapers — The New York Times, The Washington Post, The Hartford Courant, and The Boston Globe — asked a Connecticut trial court to release more than 12,000 pages of sealed documents filed in connection with civil clergy abuse lawsuits. The charges, made by 23 former altar boys and youth group members against seven priests in the Bridgeport Diocese, cover a period from the late 1960s to the early 1980s.

A judge initially sealed the records out of concern for the defendants’ ability to receive a fair trial. But years after the cases settled in 2001, the documents remained hidden from public view.

David Clohessy, national director of the Survivors Network of those Abused by Priests (SNAP), said the group believes the records “contain names of current and former church staffers who suspected or knew of child sex crimes, and ignored or concealed them.”

The most hotly contested documents are depositions of Cardinal Edward Egan — who led the Bridgeport diocese before becoming Archbishop of New York — and the trial court ordered that his depositions, in particular, should be kept secret.

But a Connecticut trial court judge, Robert F. McWeeny, ordered the documents released in 2002, saying that “the judicial system should not be a party to a cover-up by denying access to information concerning a matter of such widespread public interest.”

The Connecticut Supreme Court agreed that all the documents should be released, save 15 letters, articles, notes and other papers that “could not have been relied upon in the course of adjudicatory action.” It said that “it is evident that all of the documents, except for a handful of items, are judicial documents … subject to the presumption of public access.”

The diocese filed an emergency request with U.S. Supreme Court Justice Ruth Bader Ginsburg, who oversees emergency requests arising from Connecticut, to stay the state court’s order until the diocese could petition the high court for review. Ginsburg declined the stay request on Aug. 25.

When the diocese re-filed the same request with Justice Antonin Scalia — a procedure the high court allows but says “is not favored” — it raised eyebrows among those who saw it as an attempt to find a more sympathetic audience in the conservative Catholic justice, whose son is a priest. An attorney for the diocese denied that charge, telling American Lawyer Media that “Scalia has written on the issues posed by the certiorari petition” and “[r]eligion had nothing to do with it.”

Scalia referred the second stay request to the full Court, which again rejected it without comment on Oct. 5. Later that month, it likewise denied the diocese’s underlying request to review the case as a whole.

Tenacious litigators

The seven-year fight to keep the Bridgeport records secret shows the extraordinary efforts still used to hide clergy abuse records.

For example, the diocese tried to get a judge removed from the case because he was serving on the judicial branch’s public access task force. The state supreme court rejected this argument, writing that “membership in a task force concerning a particular legal issue does not justify the disqualification of a judge simply because the judge’s service happens to be coincident with his participation in a case dealing with the same issue.”

The diocese also claimed that releasing documents would violate the First Amendment’s protection for the free exercise of religion. The state supreme court did not rule on whether such a First Amendment privilege exists, finding that any privilege had been waived when producing the documents. But the diocese pressed the argument in its U.S. Supreme Court papers, writing that “a church may not be compelled to disclose internal documents relating to hierarchical determinations regarding fitness for ministry” without violating the First Amendment.

“Civil juries and civil courts are not to be allowed, in retrospect, to conclude that the Diocese’s weighing of these factors resulted in a misguided or negligent decision about how to handle the allegations against the individual minister,” it continued. “[E]ven if allegations are confirmed.”

In a statement released after the U.S. Supreme Court denied its stay requests, the Diocese noted that it had years ago “disclosed the names of offending priests and confirmed that all credibly accused priests had been removed from ministry.” It added that it continued to contest the case because of the freedom of religion issues at stake and because “the indiscriminate release of pre trial documents concerning matters long settled will harm the reputations of innocent people.”

SNAP’s Clohessy said that aggressive litigation tactics “now more than ever” are par for the course in clergy abuse cases.

“In recent years, as public attention to the church’s child sex abuse and cover up scandal has waned a bit, more Catholic officials are willing to spend tens, even hundreds of thousands of dollars, donated by parishioners, to get or keep embarrassing records sealed,” he said. “In 2002, bishops adopted a first-ever national abuse policy pledging openness, but with pledge, as with so many others, many bishops have been dramatically and consistently backsliding in recent years.”

Gagging reporters

Another Catholic group took more unusual measures to quell media coverage recently when it attempted to obtain a court order restraining journalists from reporting on abuse litigation. The Marianists Province of the U.S. last April asked a federal judge in Denver to issue an order preventing coverage of an open court hearing in a lawsuit over paying for settlements made with high school students.

That request came in Marianists Province of the U.S., Inc. v. ACE USA, a civil dispute between the Catholic group and an insurer about who must pay the costs related to sex abuse lawsuits involving a Marianist brother. Attorneys for the Marianists tried, but failed, to close a hearing attended by freelance reporter Robert Boczkiewicz. The same day, they asked the court for a temporary restraining order prohibiting Boczkiewicz or anyone else from publishing any information about the hearing. Chief Judge Wiley Y. Daniel denied the request without comment.

At the time the request was denied, Boczkiewicz’s lawyer said it was a clear violation of the First Amendment.

“You cannot restrain the press in advance of publication absent a state interest of the highest order, which was not present here,” said Ashley Kissinger of Levine Sullivan Koch & Schulz. “And you cannot punish after the fact — much less restrain in advance — the publication of information disclosed in open court.”

“It was an egregious attempt to gag reporting on what happened in open court,” Boczkiewicz said in an interview, adding that it “would result in an illegal prior restraint.”

Nor was the Denver prior restraint attempt unique. In 2002, the Diocese of Lexington, Kentucky, asked a judge to hold The Courier-Journal in contempt for writing about sex abuse litigation. The diocese argued that the paper improperly discussed the contents of sealed records. But the Kentucky Supreme Court rejected the claim, ruling that “[an] order sealing a record or part thereof should not be read as creating a prior restraint on publication of the contents of the sealed material, unless the order expressly says so.”

Courts push back

Though church groups often still work to keep abuse records behind closed doors, the avalanche of information about secret settlements has made courts less likely to go along. The Bridgeport diocese’s requests to the Supreme Court were all denied without comment, as was the request to gag Boczkiewicz. Indeed, it appears that judges are warier now when it comes to sex abuse documents. “If I had been aware of how widespread this issue was, I might have had a very different reaction to it,” Superior Court Judge Margot Botsford told The Boston Globe regarding her 1995 order sealing clergy abuse records in a Boston case. SNAP’s Clohessy agreed, writing in an email that “judges are increasingly deciding that more secrecy leads to increased risk and that more openness leads to abuse prevention.” But he added that the Bridgeport Diocese and other defendants have “already won a massive victory, simply by keeping records of predator priests and complicit colleagues hidden for decades or (at the very least, in these cases) for seven years.”