Judge Orders Milwaukee Archdiocese to Release Cemetery Documents

By Annysa Johnson
Milwaukee Journal Sentinel
August 8, 2013

http://www.jsonline.com/news/milwaukee/judge-orders-milwaukee-archdiocese-to-release-cemetery-documents-b9971211z1-218889311.html

The Catholic Archdiocese of Milwaukee, which faces more than a dozen civil fraud lawsuits over its handling of clergy sex abuse cases, filed for Chapter 11 bankruptcy protection in January. As the case proceeds, we'll have updates, analysis, documents and more.

The Archdiocese of Milwaukee must release to its bankruptcy creditors documents that could show whether a federal judge, who sided with the church on a key issue involving its cemeteries, might have had a conflict of interest that should have been disclosed, U.S. Bankruptcy Judge Susan V. Kelley ruled Thursday.

Kelley issued the ruling after a brief hearing Thursday, stressing that it was not a commentary on U.S. District Judge Rudolph T. Randa's July 29 ruling or whether he should have recused himself from the case.

"This should not in any way, shape or form be construed as a ruling on the appropriateness of Judge Randa's recusal or nonrecusal, or whether he has a financial interest or not" in the archdiocese's cemetery litigation, Kelley said.

Randa ruled last week that forcing the church to use even some of the more than $50 million it set aside in a trust for the perpetual care of cemeteries to pay its bankruptcy debts — primarily sex abuse settlements — would substantially burden its free exercise of religion under the First Amendment and a 1993 law aimed at protecting religious freedom.

Randa's ruling, which overturned an earlier decision by Kelley, was a key victory for the archdiocese in that it eliminated one of the last major assets available for a settlement with sex abuse victims who filed claims in the bankruptcy.

In a rare — and some would say risky — move just days after the decision, lawyers for the archdiocese's creditors questioned whether Randa and his wife, Melinda, have financial interests in the cemeteries, and therefore the bankruptcy.

As part of the bankruptcy, Milwaukee Archbishop Jerome Listecki, the cemetery trust's sole trustee, filed a claim — a statement of financial interest, essentially — on behalf of everyone who owns cemetery space or is an heir or beneficiary of those who do.

On Thursday, Kelley granted the creditors' motion asking her to compel the archdiocese to release records that would show whether the Randas own plots, crypts or other interment space in an archdiocese cemetery or are listed as heirs or beneficiaries of anyone else who does.

Depending on what they find, the attorneys said, they may seek to vacate Randa's order and ask him to recuse himself from the cemetery trust case.

An attorney for the archdiocese did not comment Thursday. But a lawyer for the trust last week called the motion "an attack on a federal judge."

Challenging a federal judge can be a risky move, according to legal observers, especially when that judge still has related issues before him, as Randa does in the archdiocese bankruptcy.

In addition to the cemetery trust, Randa is also expected to rule soon whether the archdiocese's insurers are liable for certain sex abuse claims filed in the bankruptcy, and on appeals of decisions by Kelley on the archdiocese's efforts to throw out certain abuse claims.

"It is always dicey to challenge a federal judge on ethical grounds. On the other hand, you have a right to bring the challenge," said Laurie Levenson, a professor at Loyola Law School in Los Angeles.

"In other words, you'd better be right when you bring this type of challenge," she said. "This is something they take very seriously. And if they see it as a frivolous tactical maneuver, it may impact on them for future rulings."

Jim Stang, lead attorney for the creditors committee, said he has no plans at this time to seek Randa's recusal on any of the other issues pending before the judge.