Judge Tells Bishops to Release Records
Order Includes Secret Files on Priests Accused of Abuse
By Don Lattin firstname.lastname@example.org
San Francisco Chronicle [Northern California]
August 6, 2004
An Oakland judge ordered Catholic bishops across Northern California on Thursday to turn over an array of internal documents relating to some 150 lawsuits alleging that church leaders negligently allowed priests to sexually abuse children and teenage parishioners.
Alameda County Superior Court Judge Ronald Sabraw gave the bishops and their lawyers until Sept. 10 to provide clergy personnel records, psychotherapist reports, sub secreto (secret) files and other documents on dozens of priests named in the lawsuits.
Sabraw is coordinating legal action in the "Clergy III" cases -- litigation made possible by a state law that temporarily suspended the statute of limitations during the year 2003 for adults seeking damages for decades-old child abuse claims.
Clergy I and Clergy II represent hundreds of additional sex abuse claims that are being jointly processed in Los Angeles and San Diego. Clergy III represent the 150 cases in Northern California.
A small army of attorneys is expected back in Sabraw's courtroom today to chart the next stage in what has already proven to be a seesaw battle between church lawyers and attorneys representing the alleged victims of priestly pedophilia.
Under court pressure to produce church documents, the bishops' lawyers have begun asking the court to begin the mediation process to settle the claims and avoid jury trials on the emotional allegations.
In newly filed court papers, Stephen McFeely, the acting liaison counsel for the bishops, said it is "now time to turn to the question of the potential resolution of these cases."
"Clergy III will likely involve at least 150 cases with more than that number of plaintiffs," McFeely said. "An effective procedure to mediate these cases needs to be identified."
But attorneys for the molestation victims say that may be a stalling tactic.
In his reply to McFeely, attorney Richard Simons, the liaison counsel for the alleged abuse victims, cites "the endless delay in prosecuting cases in Clergy I and II during unproductive 'mediation' sessions."
In his court filing, Simons asks Judge Sabraw for firmly set trial dates in the Northern California cases.
Last month, Simons' hopes for an imminent trial were dashed when church lawyers convinced Sabraw that Simons had not yet produced enough evidence to warrant a trial stemming from the abuse allegedly committed by the late Rev. Arthur A. Ribeiro, a priest at Queen of All Saints Church in Concord in the 1960s.
Among the files Simons and other lawyers have sought are so-called sub secreto documents, the very existence of which are in dispute.
According to the church's Code of Canon Law, bishops are to keep "a secret archive, or at least in the ordinary archive there is to be a safe or cabinet, which is securely closed and bolted and which cannot be removed."
"In this archive, documents which are to be kept under secrecy are to be most carefully guarded," states Canon 489.
"Each year, documents of criminal cases concerning moral matters are to be destroyed whenever the guilty parties have died, or 10 years have elapsed since a condemnatory sentence concluded the affair. A short summary of the facts is to be kept, together with the text of the definitive judgment," church law states.
"Only the Bishop is to have the key of the secret archive," the Canon states.
In his order in the Clergy III cases, Judge Sabraw said he was ordering the review of relevant documents "wherever located and however labeled."
"Documents and information can concern administrative, secular, spiritual, theological, moral, criminal or other matters," Sabraw said.
Sabraw said the clergy-penitent privilege only applies "in a confession expressly seeking absolution."
If an accused priest was sent to a psychotherapist for evaluation or rehabilitation, the doctor-patient privacy privilege will cover communication between the two arising from that referral.
But the church must still provide "privilege logs" showing the dates, authors, recipients and a summary of those privilege documents.
In addition, the judge ordered that the church "produce any documents of or communications with any psychotherapist suggesting that the psychotherapist has reasonable cause to believe that a priest is likely to engage in sexual abuse in the future."
Attorney Jeffrey Anderson, a co-counsel in Clergy III, said access to the church's secret files is necessary to prove church negligence.
"We know the bishops have kept this a secret because canon law requires them to," said Anderson, a St. Paul, Minn., lawyer who has filed numerous sex abuse lawsuits against the church. "They are required to make scandalous material for the bishops' eyes only."
But in an interview Thursday, McFeely said the molestation victims' lawyers are making too much of the sub secreto files.
"They portray the plaintiffs as one big monolithic church where all the bishops and archbishops do the same thing and act the same way," McFeely said. "That is not true. ... The Diocese of Oakland has never had sub secreto files. "
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