Mahony Ordered to Release Church Records
Court affirms ruling that documents dealing with abuse
by priests must be disclosed.
By Jean Guccione - LA Times Staff Writer
July 26, 2005
A state appellate court ordered Cardinal Roger M. Mahony on Monday
to comply with grand jury subpoenas seeking the internal church
records of two former Roman Catholic priests accused of sexually
It was the second time in a year that a court has told Mahony to
turn over the records.
A three-judge panel from the 2nd District Court of Appeal in Los
Angeles rejected the archdiocese's argument that it was constitutionally
protected from having to disclose documents from priest personnel
"While it is true the right to religious freedom holds a special
place in our history and culture, there also must be an accommodation
by religious believers and institutions to the rules of civil society,
particularly when the state's compelling interest in protecting
children is in question," Presiding Justice Joan Dempsey Klein
wrote in a 49-page opinion. Justices Walter Croskey and Patti Kitching
The ruling marks the latest installment in the three-year legal
battle over the disclosure of church documents sought by prosecutors
investigating clergy sexual abuse. The ruling, which affirms a ruling
made last September, is expected to affect both civil and criminal
"This is a clean-sweep victory for the people," said
William Hodgman, the deputy district attorney in charge of the investigation.
"Every single argument has been shot down in flames, described
Lawyers for Mahony and the priests, whose names have not been made
public because they are being investigated in secret grand-jury
proceedings, said they expect to appeal.
Mahony has taken the position that any review of confidential communications
between a bishop and his priests by prosecutors would violate the
church's rights under the 1st Amendment.
The appellate panel rejected that argument, finding that enforcing
the subpoenas "will not result in excessive entanglement"
by the government. The court cited rulings in other states that
forced the Catholic Church to turn over similar documents. The panel
also rejected church arguments that the disclosures violated state
laws establishing both clergy-penitent and psychotherapist-patient
The opinion gives greater insight into the kinds of documents Mahony
sought to protect. One was described by the court as a memo to Mahony
from his vicar of clergy that reported on an accused priest's "cooperation
with his therapists, strategized about possible legal problems and
discussed church assignments." Another discusses an accused
Mahony's lawyer, Donald F. Woods Jr., said the opinion supports
Mahony's belief that bishops should be allowed to talk privately
with their priests without fear of their communications' being disclosed.
The court said such communications are protected under state law
if they are intended to be in confidence and are made to someone
authorized by the church to hear them and keep them secret.
"In general, the court did recognize that the bishop can have
a confidential communication with a troubled priest as long as they
recognize the parameters of the privilege," he said. "And
that the bishop can disclose to psychotherapists information relating
to the priest which is protected."
The court ruled, however, that only one of the 20 pages of documents
Mahony sought to protect was covered by the psychotherapist privilege
and could remain secret.
Woods said he hoped a higher court would take a different view
of the priest-penitent privilege and allow three-way communications
between the bishop, his vicar and an accused priest to fall within
it. "It's like having two priests in the confessional instead
of one," he said.