Mahony Ordered to Release Church Records

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 abusing children.

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 files.

"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 concurred.

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 litigation.

"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 as meritless."

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 privileges.

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 priest's psychotherapy.

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.