Unsung judges lead way in priest
By Joseph A. Reaves - The Arizona Republic
Feb. 23, 2003
Prosecutors made some progress.
Investigative reporters dug up a little more.
And the attorneys who fought for years on behalf
of thousands of victims deserve much credit.
But the biggest breakthroughs in the nationwide
sex abuse scandal rocking the Roman Catholic Church have come
through a series of rulings by a small group of mostly unheralded
judges in 10 states, including Arizona.
The judges have invoked the First Amendment
and public interest to unseal court documents, release personnel
records and prod slow-moving grand jury investigations.
Their rulings have provided a window into the
scope of sexual abuse by priests and the ways many cases were
covered up by church leaders.
"These rulings are a great victory for
the public," said Phoenix lawyer Paul Eckstein, a First
He notes Arizona recently amended its judicial
rules to make more information open to the public.
"The presumption in this state today is
that court documents are not confidential," Eckstein
said. "This benefits the public in a whole array of legal
matters, from product liability cases to those involving the
A staunchly independent Irish Catholic judge
in Boston has been far and away the most aggressive in ordering
once-secret documents be made public.
But judges in Connecticut, Illinois, Kentucky,
Ohio, New Hampshire, Tennessee and Wisconsin also have issued
big rulings against the church.
Federal courts in South Carolina recently banned
sealed settlements in lawsuits, a practice routinely used
by the church to keep sex abuse cases from the public.
And in Phoenix, Superior Court Judge Eddward
Ballinger and three members of the Arizona Court of Appeals
have combined to move a stalled grand jury investigation forward
by ordering the Phoenix Diocese to surrender 2,286 documents.
Church lawyers had argued the documents should be protected
by client-attorney privilege.
"We applaud the courage of Judge Ballinger
and the other judges who are holding institutions like the
church accountable for their actions," said Paul Pfaffenberger,
president of the Valley chapter of SNAP, the Survivors' Network
of those Abused by Priests.
Many of the most dramatic recent judgments have
come at the request of aggressive newspapers and long-suffering
The Boston Globe led the way in 2001 when it
persuaded Judge Constance M. Sweeney to unseal thousands of
court records from 86 civil lawsuits against defrocked serial
pedophile priest John J. Geoghan.
Attorneys for the Boston Archdiocese had argued
that the U.S. Constitution allows the Catholic Church to operate
under canon law and grants it power to regulate internal affairs
Sweeney disagreed. She ruled that canon law
"does not automatically free (church leaders) from the
legal duties imposed on the rest of society."
In ordering the records released, Sweeney declared
the public had a clear interest in lawsuits alleging sexual
abuse by a priest.
Sweeney's ruling was the first ripple in what
Los Angeles District Attorney Steve Cooley has called a "a
tsunami" of legal decisions against the church.
Last May, a judge in Connecticut followed Sweeney's
lead and stressed public interest in ordering the release
of thousands of documents from 23 lawsuits against priests
accused of sexually abusing minors. The ruling by Superior
Court Judge Robert F. McWeeney came in response to motions
filed by the New York Times and Hartford Courant.
"In a matter of such widespread public
interest, the judicial system should not be party to a coverup
by denying access to such information," McWeeney wrote.
The church appealed McWeeney's order, and a
decision is expected later this year.
An explanation wanted
In agreeing to hear the case, the Connecticut
appellate court asked McWeeney to explain his reasons for
ordering the files opened. The judge responded bluntly, accusing
the courts of helping church officials keep files secret.
"The church's sexual abuse scandal has
not been exposed by the courts," McWeeney wrote.
"Courageous victims and enterprising investigators
have circumvented a judicial model of cooperation with the
diocese in endlessly delaying litigation, sealing files and
coercing victims into non-disclosure settlements."
Pay, pray and obey
For most of church history, Catholic faithful
have been encouraged to pay, pray and obey. Church leaders
generally discouraged lay involvement in ecclesiastic and
But the continuing sex abuse scandal has spawned
growing calls for accountability.
Cardinal Bernard Law was forced to resign as
archbishop of Boston on Dec. 13 after Sweeney ordered still
more documents released.
And in the two months since, another judge,
Ralph D. Gants, unsealed records in five other lawsuits, citing
"legitimate public interest."
The Tennessean newspaper in Nashville, the Lexington
Herald in Kentucky and the Milwaukee Journal Sentinel all
have gone to court and persuaded judges to unseal records
since last April. And attorneys for victims won similar rulings
in Cincinnati and Joliet, Ill.
The Arizona Republic filed motions with the
state Court of Appeals last month and won access to documents
related to a grand jury investigation of the Phoenix Diocese.
The Republic also has a request pending in Tucson to gain
access to records in a civil suit that accuses Phoenix Bishop
Thomas O'Brien of covering up for a colleague who was a known
pedophile priest in the mid 1960s.
"This started as a trickle of water, built
to a stream and now it's a pretty strong river," said
Phoenix attorney Richard Treon, who represents several abuse
"We hope these rulings eventually lead
to an ocean of truth about what has gone on in the Phoenix
Paul Bender, a law professor at Arizona State
University, said courts generally have agreed to parties'
requests for confidentiality during the discovery phase of
civil cases. What makes the recent rulings against the church
different is that judges now are more likely to put public
interest ahead of confidentiality.
"These rulings open up to public view information
that has long been secret," Bender said. "The resulting
negative publicity may be more important to the church than
any money damages that may be awarded against them."
Bracing for more
Church leaders are bracing for still more criticism
in the coming days.
Under terms of an agreement reached with the
New Hampshire Attorney General's Office last year, the Diocese
of Manchester is scheduled to release about 9,000 pages of
investigative files on March 3.
The diocese agreed to make the files public
in a settlement in which the church admitted its handling
of sexually abusive priests harmed children.
There is "enormous public interest"
in court records being produced, said Eric MacLeish, a Boston
attorney who has represented 135 sex abuse victims.
"What's happening here in Boston and, hopefully,
in Arizona and elsewhere around the country, will make this
a better church. I think it's already made it a better church,
though some people may not agree."
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