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," Cooley said.

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 the ruling.

"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 their case.

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 priests.

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 doors.

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.