Sealing of Sex-Abuse Lawsuits Rejected
Jefferson Judge Rules State Law Unconstitutional

By Peter Smith
The Courier-Journal [Kentucky]
Downloaded January 28, 2004

Jefferson Circuit Judge Barry Willett has declared unconstitutional a section of a Kentucky law that requires the sealing of lawsuits that allege past sexual abuse.

Willett ruled Monday in favor of The Courier-Journal in a lawsuit filed in 2002 against the state. The newspaper sought to void a portion of a 1998 law that required the sealing of lawsuits alleging sexual abuse that occurred more than five years in the past.

"Obviously, we're very pleased with the decision," said Jon Fleischaker, an attorney representing the newspaper. "It's another recognition that courts are open to the public, and the functioning of the courts is a public issue, not a private issue."

Willett has given Jefferson Circuit Clerk Tony Miller 30 days to unseal any lawsuits that may have been sealed under the 1998 law. But court officials said they don't know of any such cases.

The law drew public attention with the unsuccessful attempt by the Archdiocese of Louisville in 2002 to seal lawsuits alleging past sexual abuse by Roman Catholic priests and other church workers.

Archdiocese spokeswoman Cecelia Price declined to comment yesterday on Willett's decision.

Although most of the church lawsuits have been settled, The Courier-Journal pursued efforts to have the law declared unconstitutional.

Willett's ruling applies at least to Jefferson County and could apply statewide, Fleischaker said, because the newspaper named the state as its defendant. Fleischaker said he is interested to see if anyone appeals the ruling, because no one opposed The Courier-Journal's challenge in circuit court.

Fleischaker said he had no idea how many sealed lawsuits would come to light under the ruling, though he said he had "reason to believe there are others out there."

Debbie Linnig Michals, a spokeswoman for the Jefferson Circuit Clerk's office, said officials there are not aware of any such cases. The court's computer database does not indicate any, and clerks keep track of cases whenever they "see something out of the ordinary," she said.

"We're going to do the best (that is) humanly possible to identify" any such cases within 30 days, Michals said. But "as far as we know, there are no others."

Although The Courier-Journal named the state as defendant, the attorney general's office agreed with the newspaper's position that the law was unconstitutional. The Jefferson Clerk of Courts also had no objection, according to Willett's decision.

"Where the state attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest," Willett wrote.

The law failed the test on numerous grounds, the judge said: It violated First Amendment rights of freedom of press; it amounted to the legislature overstepping its role in regulating the judicial branch of government; and it failed to meet the requirement that a law's title accurately summarize what the law is about. This law's title said nothing about sealing any records, Willett noted.

Attorney General Greg Stumbo's office has no plans to appeal but will "continue to review our options," spokeswoman Vicki Glass said after a preliminary review of Willett's ruling.

"There is an important balancing act between the public's right to know and the protection of child sexual abuse victims," she said.

State Sen. Tom Buford, R-Nicholasville, who sponsored the 1998 law, said he was disappointed in Willett's decision but accepted it

"I understand where the judge is coming from," Buford said, adding that he proposed the bill at the request of women who claimed they were victims of alleged sexual abuse.

"My goal was to protect the victim not the defendant," he added. "People in their 40s and 50s, they may not want what happened to them as a child divulged across pages of newspaper."

Allowing people to file lawsuits confidentially would "probably allow more to come forward if the whole case did not have to be aired in public," he said.

But attorney William McMurry argued the opposite. McMurry, who filed more than 200 lawsuits against the Archdiocese of Louisville without doing so under seal, argued that victims who filed public claims under their own names actually encouraged more victims to come forward.

"When you keep secret allegations of child sexual abuse, you prevent precisely what we did, and that is launch a crusade, gathering victims and getting the word out that we can make a difference with numbers," he said.

After McMurry filed his first lawsuits against the archdiocese in 2002, the church sought to have the cases sealed under the 1998 law. The Courier-Journal intervened, seeking to have the law struck down as unconstitutional.

Jefferson Circuit Judge James M. Shake rejected the archdiocese's request but did not rule on the constitutional question. Instead, he said the law didn't apply because the lawsuits named only the archdiocese as the defendant, not the alleged perpetrator of abuse. The archdiocese did not appeal. McMurry last year negotiated a $25.7million settlement with the archdiocese on behalf of 243 plaintiffs. A handful of lawsuits are still pending.

The one case involving the archdiocese that was known to be filed under seal involved the only two plaintiffs in the archdiocese litigation who are children. Their mother filed suit on their behalf under seal in 2002, naming both the archdiocese and the Rev. Daniel Clark as defendants for abuse of which Clark has since been convicted.

The family's attorney agreed to refile the lawsuit in open court, using the children's initials only, because the law did not apply to abuse that occurred less than five years before a lawsuit is filed. The two boys later shared in the $25.7million settlement.

Willett left intact a part of Buford's 1998 law that The Courier-Journal did not challenge. That portion had extended the statute of limitations for some abuse lawsuits from one to five years after the offense or after a victim of child sexual abuse becomes an adult.

Buford is currently proposing legislation extending the limit to 20 years.

Willett is not the first judge to take aim at the law's sealing provision. In 2002, Fayette Circuit Judge Mary Noble ordered the unsealing of a lawsuit filed by several plaintiffs against the Diocese of Lexington that alleged sexual abuse by priests. Noble also said the law was unconstitutional, but the ruling had no bearing beyond that case, Fleischaker said.

The diocese also temporarily obtained a court seal on allegations in the lawsuit of sexual misconduct by priests, which it deemed scurrilous and irrelevant.

Noble later lifted the seal after The Courier-Journal published the sealed material, which it had obtained independently.


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