The Law That Could Hold Catholic Bishops Accountable

By Rick Casey
Rivard Report
February 5, 2019

https://therivardreport.com/the-law-that-could-hold-catholic-bishops-accountable/

The list of credible sexual abuse cases listed by the Archdiocese of San Antonio last week was long and depressing. It was also incomplete.

It included the names of 54 priests and one deacon whose alleged crimes ranged from six decades ago to recent. The details were sterile. They did not include accounts of the actual abuses, but the bare bones of where the men served and how they were dealt with: sent to Mexico for treatment, suspended from priestly duties, or in a very few cases, referred to law enforcement and prosecuted.

Missing was any account of how bishops and other church authorities actively covered up sex crimes involving minors, often leaving the perpetrator to victimize more children.

Yet these church authorities are as responsible for the devastation of lives that now confronts the church as the perpetrators themselves. And they should be held just as accountable.

We don’t know the details of the many ways in which church authorities covered up the scandals, often leading pedophiles to be transferred to other parishes where they were free to victimize more children. But here is one example of such efforts, and of a law passed by a young San Antonio legislator in an attempt to pierce the secrecy.

In 1988, the Archdiocese of San Antonio settled a lawsuit filed by the family of two young boys, 10 and 16, who had been molested by a Franciscan priest named Federico Fernandez. Five years earlier Fernandez allegedly had been reported to then-Archbishop Patrick Flores for swimming naked with two young girls.

An unknown number of such lawsuits have flown under the radar without public notice, but the media were aware of this one because Fernandez had been indicted. When Kim Fox, the excellent courthouse reporter for the San Antonio Express-News (and now a journalism professor at Texas State University), discovered that the lawsuit had been settled, she asked for the file. She was told the judge had ordered it sealed at the same time he entered a final judgment.

Mark Cannan, one of the state’s top media lawyers (he’s kept me out of trouble numerous times), filed to intervene in the case in order to unseal the file. But the judge ruled the newspaper couldn’t intervene in the case because the final order had been issued. The case was closed.

But this was a “Catch-22,” Cannan said. The newspaper didn’t have anything at stake in the matter until the sealing order was issued. Therefore it didn’t have “standing” to intervene. But since the order sealing the case was filed at the same time as the final order, the paper couldn’t intervene at that point either.

The newspaper took the case to the Fourth Court of Appeals and lost. In a dissent, Justice Carlos Cadena (after whom the courthouse is named) argued powerfully for open court records and criticized the majority’s argument as “either circular or the majority has managed to pull itself off the ground by strenuously tugging at its own bootstraps.”

Lawyers for defendants in such cases will say the file was sealed for the sake of the victims, or because defendants such as the church don’t want other potential litigants to know how much they paid the victims.

But there are other considerations. For example in this case, the criminal charges were dropped three days later, apparently at the request of the parents. Was that a condition of the settlement? The public couldn’t know.

Perhaps even more importantly, in order to go after the deep pockets of the church rather than just the limited assets of the priest, lawyers for the victims had to detail what the church knew, when church officials knew it, and what actions they took or failed to take. Keeping this information secret was very much in the interest of church authorities.

When he learned of the case, Orlando Garcia – then a state legislator and now a federal judge – was outraged.

“It was ridiculous,” he said in recalling the case. “How could you keep the name of an abuser – especially a priest – secret? It was just one case that I happened to read in the paper. I thought, that’s illogical and unjust.”

In this case, the abuser was named in the newspaper, but Garcia knew that didn’t happen in other cases. He discovered that Texas had no rules regarding the sealing of court papers, so he set out to cure that. In the 1989 Legislature he filed a bill requiring the Texas Supreme Court to formulate a set of rules. The bill passed without opposition on a voice vote in the House and unanimously in the Senate.

Garcia said a friend told him he would “get in trouble with the church.”

“I wasn’t worried,” he said. “In any legislative district there are more abused children than there are priest abusers.”

Justice (now U.S. Rep.) Lloyd Doggett led the court in drafting a tough set of rules, codified now as Rule 76a. It establishes a “presumption of openness” and provides a limited set of exceptions to documents in the file that can be kept from the public. An example: “documents filed with a court in camera, solely for the purpose of obtaining a ruling on the discoverability of such documents.” Also documents restricted by law or, in particular, the Family Code.

It also provides that any motion to seal must be posted at the required place for all court notices. A public hearing also must be held and anyone can participate.

The rules are tough enough that they barely passed the Texas Supreme Court on a 5-4 vote. Filing a joint dissent were Justices Nathan Hecht (now Chief Justice) and Raul Gonzalez. They agreed that rules were needed, but wrote that these “are excessive.”

One final section of the rules deserves special attention. It says that when it comes to sealing files, the case is never closed: “Any person may intervene as a matter of right at any time before or after judgment to seal or unseal court records.” And the burden of demonstrating the need to keep the records sealed “shall be on the party seeking to seal records.”

For Kim Fox’s journalism class, a survey of lawsuits against the church could prove a rich vein to mine.