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	Top Ten Lessons Western Massachusetts Catholics January 11, 2009 http://westernmassachusettscatholics.blogspot.com/2009/01/top-ten-lessons.html 10. The Diocese cannot assert privacy and due process rights on behalf of priests - only the priests can do that. 9. The Diocese has a normal employer-employee relationship with priests. 8. Representatives of the state can't interfere with church decision-making - but, they may examine it. 7. If the Diocese wants to protect secret documents in a court of law, they must show why this is necessary. 6. "Corporation sole" exposes the assets of parishes to the claims of creditors of the Diocese – and vice versa. 5. Under civil law, the Springfield Diocese is a corporation - it is not a subsidiary of a larger group. 4. The Diocese has ignored Dallas Norms 3 and 7 about confidentiality agreements and open and transparent communication. 3. The Catholic Observer has consistently misrepresented the truth of the settlement to the parishioners of the Diocese. 2. The Diocesan law firm of Egan, Flanagan & Cohen should be replaced. and.............. 1. The Diocese lost. It lost most of the arguments in court and at least $5,452,814 in unreimbursed cash. Most important, it has lost moral standing. _______________________________________________ 10. The Diocese cannot assert privacy and due process rights on behalf of priests – only the priests can do that. See: Paper 69, pg. 22, Paper 77, pg. 9. The Insurers' argued two points: that the Diocese was not a person, and therefore could not uphold the rights of the priest; and, that the heinous nature of the allegations overrode a nominal right to privacy. They were upheld. In Paper 77 the judge did not address the question directly, but answered it under the "psychotherapy-patient" privilege that the Diocese was also trying to assert. He ruled that the Diocese was not the patient, and therefore could not assert privacy rights of the priest on his behalf. I find this decision important because the vow of obedience is sometimes used as a cover for inaction. The laity have a right to wonder, why are priests so quiet? Why have they not broken ranks with bishops, even when their own rights have been trampled? It is past time for priests to assert their rights to due process and to their own opinions. They have baptismal rights and civil rights that are just as important as the desires of the bishops for a compliant work force. _____ 9. The Diocese has a normal employer-employee relationship with priests. See Paper 62, pg. 5, Paper 73, (not paginated), pp. 7-8, Paper 77, pg. 5. The Diocesan arguments that somehow priests were the equivalent of "super-employees" not subject to civil law did not hold water. Those in pp. 7-8 of Paper 73 are particularly lame. They plead for an exception, without showing any validity for an exception. The judge wisely held the Diocese to the same minimum standards that any corporation has toward its employees. It's probably true, as church officials sometimes claim, that the incidence of sexual abuse among clergy is not much different than among bank tellers, or stock brokers, or teachers. But, the difference is that banks, stock exchanges and schools did not systematically protect their employees from the consequences of their actions, and the Roman Catholic Church, including the Diocese of Springfield, did. To this day, there has been no bishop who has been disciplined – in any way, shape, or form – as a result of the crisis. _____ 8. Representatives of the state can't interfere with church decision-making - but, they may examine it. See Paper 77, pg. 6. The Diocese claimed, using many of the arguments of the Talbot case, that an examination of church decision-making during the discovery process would directly interfere with religious belief and thus have a "chilling" effect on it. The judge thought not. He wrote that the mere examination of decision-making did not have much to do with what the church thought or did. Instead, he found that the examination of chancery papers, especially the personnel files of priests, was an acceptable way for the defendants to find out "…when and what the Diocese knew about the sexual abuse claims in order to bolster their defense…" The appeal judge agreed. She quotes from precedent (Society of Jesus of New England v. Commonwealth, 441 Mass., 668) in denying the claim: "The mere examination of the [Diocese's laicization] documents…does not infringe on the [Diocese's] autonomous decision-making with respect to [its priests'] fitness, discipline, assignments, or any other aspect of [their] relationship with the [Diocese]." _____ 7. If the Diocese wants to protect secret documents in a court of law, they must show why this is necessary. See Paper 77 (Judge Agostini's decision) and Paper 89 (Judge Duffly's affirmation), and Paper 86 (rejection of protective order); also: D.3. Progress of the Suit.4., found at: http://westernmassachusettscatholics.blogspot.com/2008/09/d3progress-of-suit4.html The laicization files were those most bitterly fought over. This consisted of at least five large files (Ronald Malboeuf, Richard Lavigne, Richard Meehan, Alfred Graves, and Edward Kennedy), and perhaps more. I suspect that somewhere in these files there was a smoking gun that explains the reduction of the reimbursement from 7.75 million to 3.5, or, at the least, had a substantial effect on the reduction. But, there were many types of documents that the Diocese sought to protect. Sometimes, this was allowed, as in the work-product and attorney-privilege issues. Perhaps its revealing that the closer the documents got to "normal" secular correspondence, like attorney-client, the more likely they were to gain protection. The frantic attempt at a "protective order" after the laicization documents were ordered to be produced was probably doomed from the start. It was deemed an "impoundment order dressed as a protective order" by the motion judge and fared no better when the Diocese addressed a petition to the appeal judge, who found the petition a "…collateral attack on the trial court's denial of its motion…" for the protective order. The Diocese had no luck in convincing judges that its privacy rights were more important than the victim's rights to be safe from harm. The appeals judge, quoting from the Leary v. Geoghan decision, wrote that "In view of the legitimate public interest in the issue of sexual abuse of minors by priests, it is difficult to '…conjure up an argument that would persuade a reasonable person that many of the issues raised in these cases and their underlying discovery documents do not lend themselves to public scrutiny…'" _____ 6. "Corporation sole" exposes the assets of parishes to the claims of creditors of the Diocese – and vice versa. I have argued elsewhere that the number one priority for the Diocese is: protect corporation sole (see The Diocesan Playbook). This priority explains their legal strategy, including the insurance trial, better than anything else. And yet, the way that corporation sole works is not widely known. The idea that individual weekly donations to the parishes have nothing to do with the costs of the insurance settlement has been a persistent theme of church officials. Likewise, the "central funds" in Springfield are said to differ from other pots of money. And, it is said that "all of the settlement costs are paid for from insurance". Yet, these assertions are easily discredited. A research paper explains that under corporation sole there is really only one pot. See: The Bishop's Alter Ego", by Bainbridge and Cole, UCLA, online at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=901663 Under corporation sole, the assets and liabilities of the parishes and other units of the diocese become inextricably linked. On pg. 13 we find that: " …The Church, as a matter of doctrine and canon law, is composed of numerous united but distinct entities, subject in varying ways and degrees to ecclesiastical control. Each separate entity possesses rights (including rights of ownership) that are enforceable, under church law, against the other entities. The assets of the Catholic Church, under canon law, thus do not belong to a single owner. Instead, Church assets “belong to many owners: the Apostolic See, individual dioceses, institutes of consecrated life, societies of apostolic life, parishes, other public juridic persons, private juridic persons, and natural persons individually and in association.” Accordingly, centralization of “ownership and control of all church property within a diocese is contrary to the law of the Church. ”, according to the New Commentary On The Code Of Canon Law by Beal, et al., 2000. And on pg. 14: " ...First, and most crucially, it is impossible to square the use of the corporation sole with canon law… incorporation as a corporation sole exposes the assets of parishes and other juridic persons, which in canon law are the property of such persons, to the claims of creditors of the diocese….conversely, by centralizing civil ownership in a single entity, the corporation sole also exposes '…all parochial and other church related assets within a diocese to satisfy creditors’ claims against any individual parish or institution.'” The last part of this quote is from pg. 1457 of the "New Commentary on Canon Law" (2000) by Beal and others, a standard guide to interpreting canon law. In view of this, any bishop would have a hard time keeping the diocese together under the threat of millions of dollars of liability, which is one way to look at the sexual abuse crisis. The fear of trial by jury is probably what led Dupre and other bishops to prefer mediation and settlements. Settlements almost always result in less cost to the diocese. Other advantages are the preservation of secrecy and the appearance of propriety. The true cost of the settlement is therefore a matter of concern to all parishioners, not just chancery accountants. Much of it is not covered by insurance. The Diocese expended $7.75 million, and got back 3.5, leaving a loss of 4.25 million. To this must be added the lawyers fees specific to the settlement, found under "Child Protection" in annual reports: Civil and Canonical Fees 2004 354,948 2005 209,328 2006 101,616 2007 229,000 subtotal 894,892 The 2004 report by Laura Reilly included these figures for Jan. 2004 - Jan. 2005: payment for priests counseling 112,452 payment for victims counseling 145,470 subtotal 257,922 Also, there was an initial grant for future counseling to Behavioral Health Network in 2004 of $50,000. It is not known if this is a recurring annual expense. 4,250,000 + 894,892 + 257,922 + 50,000 = $5,452,814 Thus, the unreimbursed cost to the Diocese of the sexual abuse crisis, so far, is nearly $5.5 million. This is a conservative figure because it does not include the first settlement in 1993, confidential settlements that have not been disclosed, benefits for Bishop Dupre, and the last four years of "clergy on involuntary leave" ($676,705). _____ 5. Under civil law, the Springfield Diocese is a corporation - it is not a subsidiary of a larger group. See Paper 62, pp. 5, 6, Paper 77, pg. 7. The Diocese pretends that the canonical Diocese (the one sanctioned by Rome in 1870) and the legal Diocese (created by the laws of Massachusetts in 1898) are the same, and tries to exploit their combined rights in pursuing its objectives. The insurance trial found a narrower role. The judge ruled in Paper 62 that the Diocese of Springfield is not a subsidiary of a larger group (the Church of Rome). In Paper 77, addressing the privacy area, he held that " …privacy mandates by ecclesiastical authorities are not, standing alone, binding on this court." Instead, he found that the Diocese was a corporation subject to the laws of Massachusetts. This ruling undercut the "alter ego", trade association, and subsidiary/corporation analogies put forth by Diocesan lawyers. The judge said that "…nothing in the record supports an inference that the dioceses stand in an organizational relationship to each other such that one diocese's liabilities directly affect those of the other dioceses, in contrast to the relationship between parent and subsidiary companies…" The Diocese is accountable to U. S. citizens through civil law. It is also accountable to both parishioners and the Vatican through canon law. The affiliation with Rome, though true theologically, cannot be used by a Diocese to cover up criminal activity, or to encroach where it should not be. This was a good ruling because it reinforces that the Diocese is accountable for its actions. _____ 4. The Diocese has ignored Dallas Norms 3 and 7 about confidentiality agreements and open and transparent communication. Stories of the survivors have not appeared in the press in the wake of the settlement, and there is only one reason I can think of: that such truth-telling is prohibited in confidentiality agreements that Diocesan lawyers forced on the victims as a condition of settlement. It is remarkable how little coverage of the settlement has appeared in the Catholic Observer, the official newspaper of the diocese. It falls far short of what was supposed to happen, according to the Dallas Norms. Shortly after the 2004 settlement, Stobierski commented: "The Dallas norms set forth the fact that these settlements will not be done in secret any longer. To that end, my clients want the names of priests who allegedly abused them made public". ARTICLE 3. Dioceses… will not enter into confidentiality agreements except for grave and substantial reasons brought forward by the victim/survivor and noted in the text of the agreement. ARTICLE 7. Each diocese… will develop a communications policy that reflects a commitment to transparency and openness. Within the confines of respect for the privacy and the reputation of the individuals involved, dioceses… will deal as openly as possible with members of the community. Openness and transparency across the board is called for. And yet, if you go to the Diocesan web site right now (www.diospringfield.org) you will find nothing about the settlement. It is as if it had never happened. It's clear that publishing a list of credibly accused priests is just about the last thing on the mind of Springfield officials. In fact, they claim it is illegal, though the Archdiocese of Chicago seems to be able to pull it off. http://www.archchicago.org/c_s_abuse/report_032006/list.pdf But, since this type of disclosure is certainly encouraged, if not mandated, by the Dallas Norms, why did the Diocese not follow suit, and publish such a list in 2004? Why did no information about the 2004 settlement get posted and remain on their web site? And why has the Diocese not used their web site to publish information about the 2008 settlement, and list the accused priests? Sometimes it's hard to demonstrate why confidentiality agreements are so important. Don't the victims deserve privacy? Certainly they do, as much as they want and need. But, we need to remember that the claimants were not the parties. It was the Diocese that sued the insurance carriers. The Diocese and the insurers fought it out over who should pay what, leaving us with a cash settlement that will resolve the legal claims of the victims. But, masking the terms under which the legal fight was resolved has nothing to do with the privacy of the victims. On the contrary, it has everything to do with the privacy of the Diocese and its insurers - both of whom should be reporting to parishioners. The problem is, once the suit is settled, it's not easy to know how and under what conditions it got settled. This is why the Dallas Norms stipulated that confidentiality agreements in settlements should be confined to protecting the victims, and not used to protect bishops and institutions. Unfortunately, management at the Diocese of Springfield has apparently chosen to do that very thing. _____ 3. The Catholic Observer has consistently misrepresented the truth of the settlement to the parishioners of the Diocese. A regular reader of the Catholic Observer or a visitor to the Diocesan web site will find virtually no trace of the scandal that has consumed over 14 million dollars, 5.5 million of it reimbursed. The scandal includes over 50 credibly accused priests, over 100 victims, a time span back to the Eisenhower era, and yet – it is as if it had never happened. And, as time marches on and events slip into the past, this willful decision to forget seems more and more like a plan. The Catholic Observer is important in presenting the Diocese to the public, because it does this in the form of "news". The Observer aspires to the same journalistic criteria of any respectable news organization. In particular, it subscribes to the code of the Catholic Press Association (CPA), which states: "This Code follows certain moral principles. Truth must be the cornerstone of all our work. Pursuit of the truth will lead to the Truth that is God. So telling the truth must be our first priority…any breach of this prime directive hurts ourselves and other people, sullies reputations, damages the credibility of our publishing institution and the Church." Truth demands that we pay attention to the local story that is not there, but should be, just as much as the local stories about bake sales and 4th grade field trips. Just because a story is placed by church authorities, that does not mean it always rises to the level of news. It is not enough for the Observer to carry stories from the CNS about "Milk Grottos" and pilgrimages and print an unending stream of press releases from the Vatican. The Observer is called to a higher truth which involves sifting stories to be sure they are comprehensive, relevant and proportional. Because the Catholic Observer has not lived up to these ideals, it is the subject of a formal complaint to the CPA. There are many signs of bias in the Observer's reporting, particularly that of Rev. Pomerleau. The complaint alleges that the Observer's coverage of the $8.5 million settlement has been untrue. For the last several years, the settlement has been the elephant in the pages of the Observer. Yet, it is almost never mentioned. For an example, I mention only one particularly egregious example of mixing fact with opinion, in the article called "Springfield Diocese Offers All Its Abuse Documents To Insurers" from the issue of Feb. 2, 2007. This article appeared shortly after the court order which effectively ended the attempt by the Diocese to shield 7,700 pages from discovery. It was an important turning point, but those looking for real news were disappointed. Not only did the Diocese not offer the insurers' all of its abuse documents – it did the opposite. It continued to withhold most of the documents, and in doing so was in direct violation of the Jan. 3 court order. This article is shot through with the legal points and arguments of Egan & Co. and is nothing more than an attempt to reargue the case in print after the arguments had been found wanting on Jan. 3. In so doing the author and the editors displayed a shameful disregard for the truth. The article states that "… He [Judge Agostini] is expected to rule on whether the second group of documents….should be given to the insurers…" without informing the reader that the judge had already ruled on the matter. Readers of the Observer were entitled to learn what was going on in the trial without any tilting of the playing field toward either the insurers or the Diocese. As it is, the readers got a luke-warm rehashing, filled with half-truths, about the legal team's frantic efforts to thwart the court order to produce documents. None of the documents ordered produced were found to be "privileged" by the court on Jan. 3, yet Egan, in the legal court, and the Observer, in the court of public opinion, clung to this position. These acts of defiance in twisting the plain meaning of words is unworthy of any publication, especially one that purports to hold the Truth especially dear and indeed, as the very cornerstone of its mission. On the contrary, the Observer on this occasion seems to have confused the Truth with fidelity to corporate sole. The Observer has fallen short in other ways as well. It shows an unusual antipathy to free expression, even Catholic free expression. For example, victim-support groups such as SNAP are regularly snarled at. The only occurrence of the words "Voice of the Faithful" over the last few years was a solitary article gloating about the problems the group has encountered. And throughout the three-year insurance trial, it is doubtful that a single letter to the editor, editorial, or commentary can be found on the trial issues. At least, I have not found any. This is quite remarkable, considering the high stakes involved. It is as if this organ of communication has become paralyzed. _____ 2. The Diocesan law firm of Egan, Flanagan & Cohen should be replaced. See Paper 77, pg. 5, Paper 86, pg. 4, 8. It's clear from studying court papers that the Diocesan legal team was not up for the match. The Diocese lacked a plan and fought a stubborn rear-guard action, even though it was they who initiated the suit. The strategy appears to have been based on denial, obfuscation, and, as the judge noted, "sweeping statements" and "declaratory assertions" rather than facts. But even assuming that the Diocese was simply outmatched, it's more difficult to understand why they were not prepared for the litigation. For example, if the suit was filed in June, 2005, after almost a year of growing resistance on the part of the insurers, and if the discovery was ordered to conclude by Oct., 2006, why, over this nearly two-year span, was the Diocese unable to come up with a single document for the insurers? What could explain this extraordinary delay, other than the argument made by the insurers, namely, that the delay was a deliberate strategy? It is extremely odd that having provided 80,000 documents only a few years before, in what must have been a Herculean effort at locating, reviewing, copying, and collating, that the Diocese really had such a hard time producing the documents. Diocesan lawyers consistently acted as if they were burdened with an sudden and overwhelming task (though, again, it was the Diocese who had initiated the suit). It strains credibility to the breaking point (mine, anyway) that they were unable to produce even one document before the Emergency Motion to Compel was filed. The firm's defense of the so-called "privileged" papers, the core of the litigation, was hapless. The several prongs of defense were largely based on the Talbot case (Jesuits v. Mass.), but, in the end, practically all of the 7,700 secret papers had to be turned over, including such items as unpaid bills, an undated newspaper article and a FedEx airbill. Even the one clause of Talbot that won in the original case turned out to be a loser for the Diocese. See pg. 8 of Paper 89. The legal team was even lectured by the appeals judge for completely missing arguments in their own favor. See the "anticipatory breach" argument cited by Judge Duffly in Paper 89. Pg. 4. Egan's campaign to get Nixon Peabody thrown out was particularly embarrassing. There proved to be only 2 attorneys that were members of the NAAD out of the 600 or so attorneys employed at Nixon Peabody. Egan couldn't even get the acronym of the organization right (as the judge wrote, the proper short form of the National Association of Attorneys of Dioceses is NAAD, not NADA). If you try and find the NAAD on the internet, you will soon come to the conclusion that it is anything but a powerful organization poised to strike terror into the hearts of progressive Catholics. On the contrary, it hardly seems to exist at all. And nothing during the trial dispelled this impression. The more we learn about the Nixon Peabody campaign, the weaker Egan's arguments appeared. Neither lawyer had used the list serve for discussions of sexual abuse, one of the core issues that Egan complained of. Also, neither man had been at NAAD conferences to discuss the supposedly critical legal strategies about staving off liability claims from victims of sexual abuse. All of this leads to the conclusion that the Nixon Peabody dismissal effort was designed mainly, if not solely, to frustrate and delay the forward movement of the case. Thus, far from Nixon Peabody "…holding our case hostage…" as Egan claimed, the reverse was true. See the "Diocesan Playbook" section for other reasons why Egan, Flanagan & Cohen, the law firm for the Diocese since around 1950, should be replaced immediately. and.............. _____ 1. The Diocese lost big. It lost most of the arguments and at least $5,452,814 in cash that is not coming back. Most important, it has lost moral standing.
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