Court Delays Release of Diocese Sex Abuse Documents

By Virginia Hennessey
Monterey Herald
February 11, 2014

http://www.montereyherald.com/localnews/ci_25109061/court-delays-release-diocese-sex-abuse-documents.html

An appellate court has delayed at least temporarily the release of documents in the child sexual abuse case involving the Rev. Edward Fitz-Henry.

A two-judge panel from the 6th District Court of Appeals granted the Catholic Diocese of Monterey's request to halt Monterey County Superior Court Judge Thomas Wills' December order unsealing documents in the lawsuit by "John R.J. Doe." The lawsuit was settled before trial with the diocese paying the man $500,000. All records turned over to his attorney during discovery remained sealed.

Justices Franklin Elia and Miguel Marquez stayed Will's decision pending further review of a petition to permanently reverse it.

The diocese's lawyers argued the records were never submitted as evidence in court. They only turned them over in discovery without a legal battle because the plaintiff's attorney said he would not share them with the media. The court agreed to the protective order to ensure the jury pool would not be tainted.

In May, more than a year after the case settled, the Monterey County Weekly moved to lift the protective order, arguing its justification was no longer valid and it was in the public's interest to know Fitz-Henry's history in terms of child molestation, what the diocese knew about it, and what it did in response.

Wills agreed, ordering the records released with redactions to protect the privacy of third parties. He stayed his own ruling to provide lawyers for Fitz-Henry and the diocese time to appeal. Daniel DeVries, the priest's attorney, said his client supports the church's petition to reverse the order, but could not afford to pursue it himself.

The plaintiff in the underlying lawsuit, now in his early 20s, claimed Fitz-Henry molested him when he was a 14-year-old altar boy and choir member at Madonna del Sasso Church in Salinas. When the lawsuit was filed in 2011, Fitz-Henry was the popular pastor of Mission San Juan Bautista. Delving into the claims, the church's investigator concluded there had previously been a credible claim of sexual abuse by Fitz-Henry involving another youth.

DeVries said in December that Fitz-Henry voluntarily stepped away from his assignment in San Juan Bautista and counter-sued the diocese after it quickly settled with the plaintiff. The priest's lawsuit was settled, said the attorney, with the diocese making a payment to Fitz-Henry and the alleged victim covering his legal costs.

In his petition to the 6th District Court of Appeal, the diocese's attorney, Brendan Begley, again argued that releasing the records would violate the privacy rights of the church and others. He said the records, which include depositions and Fitz-Henry's personnel file, are not public record because they were never filed as evidence. And he said the alleged victim's lawyer "lulled" the diocese with promises he would not release the documents and was now using the Weekly as a means to publicize them.

"The impact from the plaintiff's back-peddling will be immediate and devastating on (the diocese) as (it) will be forced to submit to media bashing based upon an incomplete record or 'try the case in the press,'" he wrote. The diocese "will be forced to choose between the specter of responding publicly ... or risk the danger that a 'no comment' statement will be seriously misconstrued.

"Either way," he said, the diocese "is sure to face a deluge of negative press coverage from the Weekly without any semblance of an even playing field."

In his opposition to the petition, the Weekly's attorney, Roger Myers, said Wills had protected the privacy rights of third parties by issuing detailed instructions for redacting the records. The diocese, he argued, does not have a fundamental right of privacy.

Myers said the diocese failed to show the required "good cause" for keeping the records sealed. Wills, he argued, had correctly concluded the public's interest lay not only with the potential danger posed by Fitz-Henry, but also in what the diocese knew and "what action, if any, was taken in response."

He said Wills' ruling was supported by courts around the country that have found "extraordinary public interest" in the release of records surrounding abuse by Catholic priests and what dioceses did to protect children. The Archdiocese of Chicago, he noted, was recently required to release thousands of pages of documents detailing abuse over decades there.

The 6th District's website did not indicate when a final ruling was anticipated.

Contact: vhennessey@montereyherald.com