Lawyers for Hundreds of Sex-Abuse Victims Have California's Catholic Dioceses in a Dire Financial Bind. Can Church Leaders Finagle an Escape, or Are They...
By Ron Russell email@example.com
SF Weekly [San Francisco CA]
Downloaded June 26, 2003
With absolutely no fanfare, Gov. Gray Davis a year ago signed into law a measure almost certain to have profound financial implications for the Roman Catholic Church, reeling from a clergy sex-abuse scandal that is the worst in modern times. The landmark law -- passed without a single opposing vote in the Legislature -- provides for a one-year window for victims of sex abuse to sue the church during 2003, regardless of how long ago the abuse occurred and whether statutes of limitation have expired.
Dozens of lawsuits have been filed against the state's 10 dioceses and the two archdioceses of San Francisco and Los Angeles as a result of the law, unique among the 50 states. Hundreds more suits are in the pipeline. Some experts say the litigation unleashed by the law has the potential to financially cripple or even bankrupt one or more California dioceses, already shaken by a drop in charitable giving.
Yet in the wake of clergy abuse revelations that led to the downfall of Boston's disgraced former Cardinal Bernard Law last spring, California's politically powerful Catholic leaders scarcely lifted a finger to oppose the measure. Instead, they watched helplessly as it swept through the Legislature at breakneck speed, aided by the co-sponsorship of two Catholic state senators, including San Francisco's powerful Senate President John Burton.
The bishops -- notably San Francisco Archbishop William J. Levada and the most influential of them all, Los Angeles Cardinal Roger M. Mahony -- held their fire while lawmakers enacted legislation that could be as damaging to the church as anything to come out of the state Capitol. But in the ensuing months, they've dug in their heels, quietly launching a counterassault to blunt both the effects of the new law and the increasing restiveness of local prosecutors, even as they offer fresh apologies to abuse victims and pledge openness and cooperation.
On the eve of the law's taking effect Jan. 1, a pastoral letter read in all of the state's 1,100 Roman Catholic churches warned that the church was about to be hit with an onslaught of sex-abuse lawsuits that could threaten the assets of church schools, parishes, and charities. The controversial subtext, articulated more bluntly in diocesan newspapers and by spokesmen for the bishops, was that victims who still considered themselves faithful Catholics should think twice before becoming pawns of greedy plaintiffs' attorneys. Levada's own spokesman warned of "a gold rush to get into the priest litigation business."
"The blame-shifting that the bishops have engaged in as a result of the new law is absolutely outrageous," says Father Tom Doyle, a U.S. Air Force chaplain and perhaps the American church's best-known whistle-blower on the clergy abuse issue. "That letter shows that the California bishops and their lawyers haven't the foggiest notion of the profound damage abuse victims experience."
Meanwhile, victim advocates and prosecutors accuse church leaders -- including Levada -- of trying to thwart their efforts to attain justice by stonewalling on the release of crucial documents related to accused clerics. (See sidebar.) Nowhere has the resistance been fiercer than in the Los Angeles Archdiocese, by far the state's largest, with some 4.5 million Roman Catholics, and widely regarded as a bellwether in the legal tug of war with the church unfolding throughout the state.
After declaring a year ago that "we want every single thing out, open, and dealt with, period," Mahony has done an abrupt about-face. Lawyers for the L.A. Archdiocese have challenged nearly every attempt by plaintiffs' attorneys to obtain internal documents, asserting that to surrender them would interfere with the relationship between bishop and priest and thus violate the constitutional separation of church and state. On the criminal front, although prosecutors have subpoenaed records related to 31 of Mahony's clerics, the documents have remained under lock and key for months on a judge's orders, off-limits to law enforcement investigators while the archdiocese's lawyers fight to keep them sealed.
Such resistance isn't confined to Mahony and Levada. Neither has it been directed solely at victims' lawyers and law enforcement authorities. As former Oklahoma Gov. Frank Keating's recent resignation as head of the church's National Review Board highlights, California's bishops have failed to cooperate even with the blue-ribbon church panel set up to investigate clergy abuse as part of the policy adopted by U.S. bishops in Dallas last June.
Keating was forced out after comparing Mahony and other bishops to "La Cosa Nostra" for the way they have tried to cover up the abuse scandal. Part of his frustration was with Mahony's alleged attempt to sabotage a survey commissioned by the review panel to identify accused priests -- a survey in which, at the time Keating spoke out, not a single one of California's dozen presiding hierarchs had elected to participate.
Even now, state Sen. Joe Dunn is still amazed at the ease with which the law relaxing the statutes of limitations for sex-abuse victims sailed through the Legislature.
An attorney who represented numerous clergy abuse victims before being elected in 1998, the Orange County Democrat -- who is Roman Catholic -- played a pivotal if unsung role in the law's passage. He hooked up longtime friend and Minnesota attorney Jeff Anderson, who has represented more than 700 sex-abuse clients in lawsuits against the church, with key lawmakers. And he was instrumental in bringing together the measure's two co-sponsors, Burton and state Sen. Martha Escutia of Los Angeles.
Even after the measure emerged from both legislative chambers without opposition, supporters feared there would be a last-ditch bid by the powerful California Catholic Conference of Bishops, which has long lobbied effectively in Sacramento, to persuade Davis, another Roman Catholic, to veto it. "The fact that the shoe never dropped says something about the extent to which the church has lost political leverage in this state as a result of the sex-abuse scandal," Dunn says.
The bishops were scarcely in a position to show opposition. Davis signed the measure on the eve of the momentous meeting of U.S. bishops in Dallas, at which the church's new sex-abuse policy was adopted. With media attention at its zenith, many of the nation's 195 Roman Catholic hierarchs were scrambling to demonstrate reformist tendencies. That was especially true of California's two clerical heavyweights, Mahony and Levada.
In the wake of embarrassing revelations that Mahony -- like Boston's Law -- had knowingly harbored pedophile priests, the Los Angeles cardinal hired a high-powered public relations firm to advise him and took the lead in pushing "zero tolerance" for priestly sex abusers just as the measure was wending its way to the governor's desk. Levada would have been no less vulnerable to being perceived as insensitive to victims had he chosen to publicly oppose the measure. San Francisco's archbishop had distinguished himself in Dallas by preaching openness and demanding that his fellow bishops examine their own conduct in dealing with sex-abuse cases involving clergy. Soon after the conclave, Pope John Paul II chose Levada as one of four U.S. church leaders to work with the Vatican in crafting a compromise sex-abuse plan that His Holiness could accept.
But as 2003 neared, the bishops counterattacked. During Sunday Masses in December, priests throughout the state read their flocks the letter signed by California's presiding bishops sounding the alarm that the church was about to be exposed to potentially severe financial hits. Catholic San Francisco, the house organ of the San Francisco Archdiocese, carried a story with the headline "Lawyers Aggressively Seek Sex Abuse Business." The paper's editor, Maurice Healy, who doubles as Levada's spokesman, offered his "gold rush" analogy to a New York Times reporter. Levada sounded a similar note, albeit with more gentility, in the archdiocesan newspaper. Referring to the new law, he said, "We are concerned about the difficulties of arriving at the truth in very old cases and the incentives that trial lawyers have for filing lawsuits under the new law."
The bishops' public relations offensive angered child welfare advocates. "In my 18 years working with victims and their lawyers, I've yet to meet a single one who was just out to bleed the church for money," says whistle-blower Doyle, a canon lawyer now stationed with the U.S. military in Germany. Formerly a top aide to the Vatican's ambassador to the United States, Doyle co-authored a groundbreaking -- and in many ways, prophetic -- report on the pervasiveness of clerical sex abuse that was distributed to every U.S. bishop in 1985. The once-secret document, which came to be known as "the manual," was largely ignored by the American hierarchy until the current series of scandals erupted, starting in Boston in 2001.
But California's bishops have not limited themselves to mere PR in trying to counteract the new law.
On the day before last Christmas, a half-dozen lawyers who together represent hundreds of abuse victims met privately in the chambers of Los Angeles Superior Court Judge Peter Lichtman. The gathering, one of several such meetings toward the end of 2002, was not an official court proceeding. Rather, it was an informal discussion, moderated by the judge, to sound out plaintiffs' attorneys and lawyers for the L.A. Archdiocese -- acting more or less as a stalking-horse for the state's other Catholic jurisdictions -- about possibly consolidating hundreds of sex-abuse cases in a single courtroom under one judge's purview.
Opinions differ as to who instigated the talks, but sources say J. Michael Hennigan, the Los Angeles criminal defense attorney brought in by Mahony last year after the L.A. Archdiocese became engulfed in scandal, was an early and enthusiastic proponent of the idea. (Hennigan did not respond to interview requests for this article.) The consolidation approach, several participants say, is intended to serve as a model for the entire state, involving lawsuits in each of the dozen dioceses.
It's a model that makes many abuse victims nervous, however. Some express concern that coordinated settlements -- if that's what the effort leads to -- may be good for limiting a diocese's exposure to potentially devastating payouts but could end up shortchanging individual victims. Those who want church leaders brought to justice for knowingly protecting pedophile priests are also concerned that some bishops will try to negotiate blanket settlements as a way of hiding misdeeds that might otherwise be exposed if they were forced to surrender sensitive documents as part of court trials.
"The bishops in California who are the most culpable will do everything they can to avoid surrendering documents," says David Clohessy, national director of Survivors Network of those Abused by Priests. "They've already seen how quickly [Boston Cardinal] Law had to step aside as soon as church documents from the civil trials leaked in the press. And nobody wants to be the next Bernie Law."
California Supreme Court Chief Justice Ronald M. George last spring gave his blessing to the coordination idea, assigning a Los Angeles judge to hear cases involving the L.A. Archdiocese and the adjacent Diocese of Orange. Earlier this month, the justice ordered cases from the dioceses of San Diego and San Bernardino to the same Los Angeles venue.
After plaintiffs' attorneys exercised a one-time privilege to disqualify an earlier appointee, George last week named Superior Court Judge Marvin M. Lager to hear the cases. Attorneys and victim advocates estimate that there could end up being as many as 400 lawsuits brought against the L.A. Archdiocese, with another 100 to 200 involving other dioceses in the southern part of the state.
In Northern California far fewer cases are presumed to be in the pipeline. So far, there are roughly 50 lawsuits involving the San Francisco Archdiocese and the dioceses of Oakland, San Jose, and Santa Rosa.
Those engaged in the talks speculate that a consolidation effort may also be attempted in Northern California should the number of cases increase significantly, which some lawyers expect. "You're going to see a real rush to file these cases toward the last three months of the year," says Hayward attorney Rick Simons, who is part of a consortium of lawyers involved in at least 40 of the sex-abuse cases in Northern California.
Yet nearly halfway through the extra year for suing the church, only a few dozen new suits have been filed statewide. That's because as part of the consolidation talks, a handful of plaintiffs' attorneys with the lion's share of the cases entered into a "gentlemen's agreement" last December with the Los Angeles Archdiocese.
The lawyers agreed to hold off filing court actions in return for the archdiocese's conducting discussions with them aimed ostensibly at negotiating what documents church officials would be willing to surrender without a struggle. The upshot has been a virtual moratorium on lawsuits brought under the new statute, not only in the sprawling L.A. Archdiocese, but throughout the state, as lawyers for alleged victims wait to see what shakes loose in Los Angeles.
The answer so far: practically nothing.
"I've had it with the church and its lawyers," says John Manly, an Orange County attorney who represents more than 80 sex-abuse victims from several dioceses, and a participant in the so-called gentlemen's agreement. Saying he was tired of waiting for church officials to fork over documents, he and his law partner broke ranks with other major plaintiffs' lawyers this month, filing 10 suits against the church in Southern California, with more to come. "They weren't giving me anything that I couldn't have gotten out of public records."
Manly says the talks amount to a well-crafted charade by Mahony and his lawyers. He credits them with "a brilliant strategy" in sidelining victims' attorneys for nearly six months "while dampening the prospect for other victims to come forward by guaranteeing that there would be fewer stories about people suing the church splattered across the pages of newspapers."
State lawmakers responded to another presumed facet of the church's strategy in April, enacting emergency legislation extending indefinitely the time limit for prosecutors to bring criminal charges against sex abusers in cases where a subpoena has been issued to obtain potential evidence. Until the law was changed, district attorneys had only a year from the time an accusation was brought to the attention of authorities to seek prosecution.
Los Angeles County DA Steve Cooley, who led the push for the law, accused Mahony of trying to run out the clock on potential criminal cases by refusing to surrender records sought as evidence. "We were about to lose the ability to file on some of these cases," says L.A. Deputy District Attorney William Hodgman, who heads a task force charged with investigating priestly sex abuse in Mahony's archdiocese. "Fortunately, the Legislature saw fit to come to the rescue."
Frank Keating's ouster as head of the National Review Board came at an especially awkward time, during the run-up to the just-concluded U.S. bishops' conference in St. Louis and in tandem with the arrest and resignation of Phoenix Bishop Robert J. O'Brien in connection with a fatal hit-and-run accident. (Just two weeks earlier O'Brien had narrowly averted a criminal indictment after admitting to a lengthy cover-up in his handling of pedo-priests. As part of an extraordinary plea bargain, he relinquished key aspects of his clerical authority.) Because it was rooted in the dispute over the bishops' survey, Mahony's call for Keating's removal inevitably focused attention on the entire corps of California bishops.
In the aftermath of the cardinal's strident criticism of the survey, Bishop Sylvester Ryan of Monterey, president of the California Catholic Conference -- and a Mahony protégé who served as an auxiliary bishop in L.A. -- issued a statement seeking to smooth things over. Both Ryan and Ned Dolejsi, the conference's executive director, insisted that despite the sentiments attributed to Mahony in press reports, it was the bishops' intention all along to cooperate with the survey.
But Mahony's April 23 letter to the U.S. Conference of Catholic Bishops, a copy of which was obtained by SF Weekly, not only suggests otherwise, it shows the depth of the cardinal's concern that prosecutors and the public might learn the identities of accused priestly sex abusers. "The forms were very poorly designed by people who have no understanding of the Roman Catholic Church, ecclesiastical culture, hierarchical structure, or the language of the Roman Catholic Church," Mahony wrote.
"One could even surmise that the ill-conceived and poorly thought-out questions were designed to create a further media feeding frenzy," he wrote. "Most seriously, this means that statistics -- and indeed, individual records, will be attached to reporting Dioceses and that individual Diocesan and/or Religious Order records will become discoverable in both criminal and civil legal actions."
It's the second time in three months that the mercurial cardinal has created a stir with regard to the abuse scandal. In April, he went to the steps of L.A.'s new $200 million cathedral to greet abuse victim Manuel Vega, an Oxnard police officer who had staged a hunger strike to protest Mahony's refusal to surrender documents to law enforcement authorities. Later, during another of his several public apologies since the sex scandal erupted, Mahony designated a chapel in the cathedral in honor of abuse victims -- a gesture that was quickly denounced by victim advocates as grandstanding.
Levada has fared little better on the apology circuit.
At a special ceremony at the Presidio June 14, the archbishop endured 4 1/2 hours of barbs from victims who excoriated him for his "lack of transparency" in dealing with the issue. As he sat stone-faced in the audience of about 125 people -- including two dozen or more priests and archdiocese personnel -- victims challenged his handling of priestly sex abusers. Among other things, they demanded that he lift the veil of secrecy surrounding the archdiocese's so-called Independent Review Board, which is supposed to investigate cases of alleged clergy misconduct, and asked him to appoint victims to the panel.
Their pleas were alternately angry and poignant. When it was finally Levada's turn to speak, he reached into his coat pocket and read from a prepared script, never once responding directly to anything that he had heard.
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