Buffalo Diocese negotiating to settle attorney general’s lawsuit

Buffalo News [Buffalo NY]

February 10, 2022

By Jay Tokasz

The Buffalo Diocese appears to be closing in on a negotiated settlement of the state attorney general’s 2020 lawsuit over the diocese’s decadeslong cover-up of child sexual abuse allegations against clergy.

Lawyers for the diocese and the Attorney General’s Office have been going back and forth for months on a draft settlement agreement, according to documents filed in U.S. Bankruptcy Court.

Bishop Michael W. Fisher declined to discuss those negotiations, beyond saying that the diocese was committed to “strict enforcement” of policies put in place to ensure the protection of children and vulnerable adults.

“I’m not trying to be evasive or secretive about things, it’s just at this time, it’s not appropriate for me to discuss the attorney general’s case in the media or how we’re responding to it. When that time comes, believe me, we will do so,” Fisher said in a recent interview with The Buffalo News about his first year as 15th bishop of the Buffalo Diocese.

A spokeswoman for the Attorney General’s Office declined to comment. Both sides signed an agreement in May to keep settlement talks confidential.

In an hourlong interview, Fisher addressed recent developments in the diocese’s nearly two-year-old Chapter 11 bankruptcy case, a new plan to rejuvenate parish life, and efforts to reach a final determination from the Vatican on the fates of several priests who were credibly accused of abusing children.

Attorney General Letitia James filed the lawsuit nearly 14 months ago, alleging that the diocese, retired Bishop Richard J. Malone and retired Auxiliary Bishop Edward M. Grosz protected more than two dozen priests who had credible accusations of child sexual abuse lodged against them.

The lawsuit was the culmination of a two-year investigation in which the Attorney General’s Office’s Charities Bureau, which oversees nonprofit organizations, subpoenaed thousands of pages of internal diocese records. Court papers allege that the diocese and its officials violated multiple provisions of the state’s Not-for-Profit Corporation Law and the Estates, Powers and Trusts Law by not administering itself in a manner consistent with state public policy.

It is the first Attorney General’s Office probe in the country to use such an approach in a lawsuit against a Catholic diocese over its handling of sex abuse claims and offending priests.

The lawsuit, filed in New York County State Supreme Court, was transferred to the U.S. District Court Southern District of New York when the diocese raised potential religious freedom questions.

U.S. District Court Judge Ronnie Abrams put the litigation on hold in September to allow time for a negotiated settlement. Both sides were slated to provide an update to Abrams in late January, according to court papers filed in federal bankruptcy court, where attorneys hired by the diocese are required to report their billable hours of work.

As part of its lawsuit, the Attorney General’s Office sought a court order that will require the diocese to comply with its own policies and procedures related to investigating abuse and removing offending clergy and employees. It also asked the court to order that the diocese hire an independent compliance auditor to monitor and review those policies and procedures.

Fisher in September interviewed Kathleen McChesney to do the monitoring and independent audit, court papers said. McChesney is a former FBI executive assistant director who led the U.S. Conference of Catholic Bishops’ Office of Child Protection and helped dioceses implement the Charter for the Protection of Children and Young People. She now runs Kinsale Management Consulting.

Multinational firm Jones Day is doing the legal defense work for the diocese on the attorney general’s lawsuit, which has cost more than $1 million. Malone and Grosz have their own lawyers.

Other legal and professional work, primarily related to the diocese’s bankruptcy and defense against sex abuse cases brought under the Child Victims Act, has already cost an additional $6 million.

“That’s one of the most frustrating parts of all of this: The lawyers are the ones making all the money. It seems like the diocese or the Catholic Church doesn’t have any problem hiring the best of the best law firms and maybe even more law firms than they need,” said Gary Astridge, a member of the Buffalo Survivors Group, which advocates on behalf of clergy sex abuse victims.

Astridge said while money doesn’t heal the trauma of abuse, some victims whose cases would be worth millions if they went to trial are going to get severely shortchanged because of all the diocese’s legal maneuvering.

“Through all this you just find out how tactical the diocese or the Catholic Church is,” he said. “it doesn’t seem like they follow the rules of, ‘What would Jesus do?’ I don’t think he’d being doing this.”

Fisher said he welcomed the potential for mediated negotiations among the diocese and its insurers, parishes and schools and creditors to bring about a speedier conclusion to the bankruptcy.

In December, Chief Judge Carl L. Bucki of the U.S. Bankruptcy Court Western District of New York approved the diocese’s request for global mediation, but he gave insurers until the end of January to continue litigating. Bucki last week ordered mediation to move ahead, and he appointed retired federal Judge Michael J. Kaplan as mediator.

“This was aimed at arriving at a settlement,” said Fisher. “I see this as a very encouraging movement forward in our Chapter 11 bankruptcy case.”

More than 900 child sex abuse claims were filed against the diocese in bankruptcy court, double the largest number ever filed in the more than 20 prior diocese bankruptcies in the U.S. since 2004.

Fisher said he looked forward to a settlement that “can provide a just and equitable compensation to the survivors of sexual abuse who have filed claims.”

Astridge said he hopes the mediation will move the bankruptcy along.

“It’s doing something,” he said. “Prior to this, it just seemed like a lot of time wasted.”

A report that accompanied the Attorney General’s lawsuit blasted diocese leaders for not referring the cases of more than two dozen priests accused of abuse to the Vatican, which can decide to remove them from the priesthood.

Fisher said that he has worked to get any pending cases to Rome by seeking canon law help from outside the diocese. The Vatican has yet to decide in those cases, but when it does, the decisions will be made public, he said.

He said it was important to keep moving those cases forward “for the benefit of the victims, but also for, I think our priests are looking for due process, that it’s moved along in a timely manner.”