Judge Rules Mahony Must Provide Files
Prosecutors want to see records of two ex-priests
accused of molesting children.
Archdiocese plans to appeal, a step that could take years.
By Jean Guccione - L.A. Times Staff Writer
September 9, 2004
A state judge, rejecting claims by Cardinal Roger M. Mahony
that the Constitution gives the Roman Catholic Church a right
to withhold personnel files, on Wednesday ordered the Los
Angeles archdiocese to turn over confidential records of two
former priests accused of sexually abusing children.
Prosecutors have sought the files for 27 months, part of
a county grand jury investigation of allegations that the
two priests molested children. Citing grand jury secrecy,
prosecutors have declined to name the two priests or say how
many children were allegedly molested.
Lawyers for the archdiocese said they would appeal the ruling
by Judge Thomas F. Nuss, a move that could delay, perhaps
for years, the actual delivery of files to the grand jury.
"We believe that Judge Nuss' ruling is novel, is inconsistent
and should be considered by a higher court," said
Donald F. Woods Jr., one of Mahony's attorneys.
Mahony has taken the position that any review of confidential
communications between a bishop and his priest by prosecutors
would violate the church's rights under the 1st Amendment.
That stand goes beyond what other American dioceses have
argued and has drawn extensive criticism.
Earlier this year, an independent Catholic national review
board said in a report that Mahony's legal argument "did
little to enhance the reputation of the church in the United
States for transparency and cooperation."
More recently, however, others among the 195 Catholic dioceses
in the United States have begun to resist disclosure using
some of Mahony's legal arguments, said Thomas Doyle, a retired
military chaplain who was the co-author of a report to U.S.
bishops in 1985 warning of problems with abusive priests.
"The hardest fight was in L.A., and I think everyone
is waiting to see how it will come down," said Doyle,
who worked as an expert witness for prosecutors in this case.
Wednesday's ruling offered some limited victories for Mahony,
but mostly bad news.
Nuss agreed that church officials could withhold some documents,
such as those involving discussions between psychotherapists
and patients and between priests and penitents.
Church documents having to do with counseling of priests
could be withheld, he said, but not those that describe the
church's own internal investigations of alleged crimes. In
cases where church officials mingled counseling with investigation,
the documents would have to be disclosed, he said.
Nuss, a retired Los Angeles County Superior Court judge who
was appointed to referee the dispute, rejected Mahony's 1st
Amendment argument and ruled that any potential problems for
the church were outweighed by the state's compelling interest
in prosecuting child molesters.
"The archbishop may not keep confidential the potential
evidence or proof of a crime by asserting that such disclosure
would interfere with the communications between priests and
bishops," Nuss wrote.
Los Angeles County Dist. Atty. Steve Cooley, whose office
is seeking the church files, praised the decision.
"I once again urge Cardinal Mahony, as I first did in
2002, to give priority to the protection of children from
child molestation by providing the fullest possible disclosure
of evidence of sexual abuse by clergy," he said.
But "if they want to continue the battle in the appellate
court, we will be there armed with a very well-reasoned opinion,"
Tod Tamberg, Mahony's spokesman, said the archdiocese's "arguments
in court relate to issues of constitutionality and fairness
under the law."
"They should not be confused with our ongoing commitment
to protect children through our comprehensive abuse policies
and procedures, lay oversight of these policies, abuse prevention
training for parents and teachers, and permanent removal of
offenders from ministry."
Donald Steier, an attorney representing the two priests under
investigation by the grand jury, declared victory.
"We are pleased because the most sensitive documents
have been protected," he said, adding that he would appeal
on other issues.
Under the ruling, prosecutors would gain access to 483 of
750 pages of documents that they were seeking, according to
Woods. Prosecutors estimated that more than half the documents
would be turned over.
No files will change hands for at least 30 days while lawyers
for Mahony and the two priests file an appeal.
Mahony's lawyer said the cardinal sought to block those portions
of the files that involve psychotherapy reports and confidential
communications among the bishop, vicar for clergy and priests.
Steier, on the other hand, argued against any disclosure,
citing his clients' privacy rights.
David Clohessy, president of the Survivors Network of Those
Abused by Priests, a leading advocacy group for alleged victims
of molestation, criticized the archdiocese's plans to appeal
"Once again, Mahony's promises and his actions are at
odds," he said. "You simply can't credibly claim
to be interested in exposing the truth while your high-priced
lawyers are fighting tooth and nail to conceal the truth."
In addition to the two criminal cases under review by the
grand jury, the archdiocese's ability to withhold files is
also being tested in civil court, where lawyers for more than
500 alleged victims of more than 200 priests argue that the
church hierarchy failed to protect children from known molesters.
The lawyers say church personnel files are needed to prove
Nuss' ruling does not apply to those civil cases, but his
legal reasoning is consistent with recent decisions in other
civil cases in which church officials were ordered to turn
over documents in Northern California, Massachusetts, Illinois,
New Hampshire, Wisconsin and Arizona.
Woods, however, said Nuss' ruling was inconsistent with an
action by a Ventura County judge, who quashed grand jury subpoenas
for similar church files.
Cooley initially subpoenaed all archdiocese records of 30
clerics. Mahony turned over almost 3,000 pages of records
to the court, saying he would cooperate with the grand jury
inquiry. A few months later, his lawyers asserted an array
of legal reasons for keeping those documents from prosecutors.
The investigation suffered a major blow last year after the
U.S. Supreme Court rejected a California law that had revived
decades-old childhood sexual-abuse cases. Los Angeles prosecutors
were forced to dismiss child molestation charges against 10
priests and an ex-seminarian. Nuss then quashed subpoenas
in 30 pending cases, ending grand jury investigations of those
After that decision, prosecutors opened the two new cases
and issued the subpoenas at issue in Wednesday's ruling.
Despite setbacks, William Hodgman, the prosecutor leading
the criminal clergy-abuse investigation, said the investigation
is continuing and more subpoenas could be issued. He said
church files may provide the names of additional victims,
witnesses and even possible admissions by accused priests.
In his opinion, Nuss, whose brother is a Roman Catholic priest
in New York, quoted church canons the church's internal
laws which require that church records be maintained
in part to prove to civil authorities "that the church
handled an accusation responsibly."
Because the church itself considered possible release of
the files, Nuss wrote in his 32-page decision, disclosure
would not violate the constitutional doctrine of the separation
of church and state.
Nuss also rejected Mahony's claim that disclosure would interfere
with communications between bishop and priests and disrupt
the religious development or "formation" of clerics.
Mahony's claim of a "formation privilege" has been
the focus of some of the harshest criticism against him.
Nuss reviewed church doctrine and found no provision that
would support the cardinal's argument.
Woods had argued in court that priests would not talk openly
with their superiors about personal matters if everything
they said could be turned over to criminal prosecutors. Some,
he said, have brought their own legal counsel to church meetings
convened to discuss allegations of misconduct.
The issue has been litigated almost entirely behind closed
Nuss decided to make his ruling public after The Times went
to court to try to gain access to some of the secret proceedings.
Both prosecutors and archdiocesan lawyers have said the appeal
by The Times further delayed the already-lengthy proceedings.