Times Union [Albany NY]
September 3, 2022
By Brendan J. Lyons
Records were created under disciplinary procedures mandated by Pope Francis to govern investigations of child sexual abuse allegations against bishops
The Archdiocese of New York is waging a legal battle to block the disclosure of more than 1,400 pages of internal records related to its investigations of Howard J. Hubbard, who served as bishop of the Roman Catholic Diocese of Albany from 1977 to 2014.
The records are being sought in connection with a Child Victims Act case filed against Hubbard, the Albany diocese and deceased former priest Francis P. Melfe, who like Hubbard is a target of multiple child sexual abuse claims.
The archdiocese’s records on the former bishop were created under disciplinary procedures known as “Vos Estis” that were mandated by Pope Francis in 2019 to govern the investigations of child sexual abuse allegations against bishops or other church superiors. The pope’s mandate also included examinations of any alleged interference with investigations of abuse by a bishop.
In March, attorneys for a woman identified in a civil complaint as “Harper Doe” subpoenaed the archdiocese for Hubbard’s disciplinary files after an attorney for the Albany diocese had informed them they did not have those documents — because “bishops do not investigate other bishops,” according to court records.
In the complaint filed in September 2019, the woman claims that as a young teenager she had worked for Melfe in the rectory of Immaculate Conception Church in Schenectady, where had hosted weekend poker nights with Hubbard and other priests. The complaint says Melfe, Hubbard and another priest, Albert DelVecchio, sexually abused her by masturbating on her. She alleges more serious sexual abuse by Melfe, and accuses DelVecchio — who died in 2017 — of raping her. She said the abuse began when she was 13.
The attorneys for the archdiocese are asserting in arguments filed in state Supreme Court that the records are protected from disclosure under the First Amendment. They contend the “production and review of such documents would necessarily excessively entangle the court in matters of internal church governance and call into question the Archdiocese and Cardinal (Timothy) Dolan’s internal processes in exclusively ecclesiastical matters governed by religious law.”
Martin D. Smalline and JoAnn Harri, the attorneys representing Harper Doe, have accused the Albany diocese and the archdiocese of having engaged in a “shell game” by denying that they were charged with supervising Hubbard during his nearly four-decade reign as bishop.
“Apparently, no one was supervising Bishop Hubbard, which would explain why he is the subject of no less than seven (Child Victims Act) complaints of heinous sexual abuse and rape of children, with two additional claims recently reported,” Smalline wrote in a recent reply brief filed in the case. “Nevertheless, through Vos Estis, the archdiocese was charged with the investigation of Bishop Hubbard for child sexual abuse, and by its own accounting has compiled more than 1,400 pages of records in his sexual misconduct file.”
The archdiocese counters that the records were compiled at the direction of the Holy See — the central government of the Catholic Church — and transmitted to the Vatican “as part of a confidential internal church process.”
“Vos Estis by its nature constitutes an internal church controversy or dispute over the clerical status of a bishop,” the attorneys for the archdiocese wrote in their motions seeking to block the subpoena. “The archdiocese possesses First Amendment protection of its religious processes undertaken pursuant to Catholic law. … Religious leaders of an organized religion should not be forced to disclose their internal judicial processes, the ultimate goal of which is to determine whether a cleric may remain in ministry.”
They further argue that being compelled to release the records would have a “chilling and pernicious effect” by disrupting internal church governance that “would unconstitutionally impede the church’s authority to manage its own affairs.”
Harper Doe’s attorneys note in their arguments that state Supreme Court Justice L. Michael Mackey, who is presiding over hundreds of Child Victims Act cases filed against the diocese or its former priests and employees, issued an earlier ruling — upheld on appeal — that forced the diocese to turn over its “secret” personnel files on an accused pedophile former priest.
Mackey had noted that “ecclesiastical principles” did not impose “different requirements for the protection of children from sexual molestation, than the requirements generally imposed by society.”
“If the First Amendment does not shield the diocese from actions involving alleged sexual misconduct, then it follows that it does not protect against application of discovery rules to uncover relevant material in files related to that alleged sexual misconduct,” Mackey wrote in that decision.
The archdiocese is asserting that Mackey’s decision involving the release of the personnel files of an accused priest is not binding in the bishop’s situation.
Smalline countered that they are not seeking to “interfere with the canonical process” and are requesting that Mackey review the files on Hubbard and decide whether there are materials that are subject to disclosure under pre-trial discovery.
“This ruling applies whether the perpetrator is a bishop or a priest,” Smalline wrote. “In fact, if the argument put forth by the archdiocese were permitted, then victims of a bishop would have less rights to disclosure than victims of a parish priest.”
The archdiocese’s legal efforts to keep secret its internal files on Hubbard follow similar court battles waged by the Albany diocese to not release its files documenting the handling of pedophilia allegations leveled against priests and others.
Terence P. O’Connor, Hubbard’s attorney, did not respond to a request for comment.
In June, the Times Union reported the allegations of two brothers who grew up in Warren County in a devout Catholic family and alleged that Gary Mercure, a former priest in their childhood parish who was later convicted of raping young boys in Massachusetts, had sexually abused them on multiple occasions over a period of years and that Hubbard took part in some of the assaults.
The men, now in their 40s, for the first time publicly asserted that Mercure and Hubbard sexually abused the older brother on multiple occasions during encounters at Lake George motels, in the rectory of Our Lady of Annunciation in Queensbury, and in Mercure’s vehicle in Albany.
“The bishop forcefully denies the allegations; he has never abused these gentlemen, never met these gentlemen, never abused anyone, whether it be a minor or an adult,” O’Connor, whose firm is representing Hubbard in the sexual abuse cases, said in June. “The bishop wholeheartedly denies these allegations.”
The new allegations increased the number of individuals accusing Hubbard of sexual abuse to at least nine — seven of whom have filed lawsuits against the former bishop, the Catholic church or the Albany diocese. The lawsuits were filed under New York’s Child Victims Act, which lifted the statute of limitations for two years to give alleged victims the opportunity to sue their abusers or the institutions that may have harbored them.
Hubbard’s handling of sexual abuse in the diocese as bishop has faced further scrutiny when it was revealed that he had testified under oath in a deposition last year that he and the diocese systematically concealed incidents of child sexual abuse and did not alert law enforcement agencies to avoid scandal and preserve “respect for the priesthood.”
The former bishop also confirmed that many of the records documenting the sexual abuse allegations were kept in secret files that only he and other top church officials could access. He said the “sealed” files included allegations of abuse as well as records on priests accused of other forms of wrongdoing, such as financial misconduct or alcohol abuse.
The deposition, which was released after attorneys removed the names of alleged victims, confirms the efforts by the former bishop and the diocese to conceal incidents of sexual abuse when Hubbard was bishop of the 14-county district.
Hubbard also testified about his reluctance to adopt a “zero-tolerance” policy for child sexual abuse perpetrators, and he acknowledged that despite the diocese keeping the sealed files on priests accused of child sex abuse, he did not review the files kept by his predecessor to confirm whether any priests active in ministry during his tenure were child predators.
“There was a sense in those days that these crimes should be handled with a minimum of publicity that might re-victimize a minor,” Hubbard had said, adding that church leaders’ “failure to notify the parish and the public when a priest was removed or restored was a mistake.”
A hearing on the archdiocese’s request to block the disclosure of Hubbard’s personnel files is scheduled to take place Sept. 9 in state Supreme Court.
Brendan J. Lyons is a managing editor for the Times Union overseeing the Capitol Bureau and investigations. Lyons joined the Times Union in 1998 as a crime reporter before being assigned to the investigations team. He became editor of the investigations team in 2013 and began overseeing the Capitol Bureau in 2017. You can reach him at firstname.lastname@example.org or 518-454-5547.