Unsung judges lead way in priest investigations

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 Amendment expert.

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 Catholic church."

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.

Judges lauded

"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 abuse victims.

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 and discipline.

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.

Tidal wave

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 administrative matters.

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.

'Legitimate interest'

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 victims.

"We hope these rulings eventually lead to an ocean of truth about what has gone on in the Phoenix Diocese."

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."

Reach the reporter at [email protected] or (602) 444-8125