Judge orders NY Archdiocese to turn over its investigative records on Hubbard

Times Union [Albany NY]

November 21, 2022

By Brendan J. Lyons

The records are being sought in a Child Victims Act case filed by a woman against Hubbard, the Albany diocese and deceased former priest Francis P. Melfe

A state Supreme Court justice has ordered the Archdiocese of New York to turn over roughly 1,400 pages of internal records related to its investigations of Howard J. Hubbard, rejecting the organization’s arguments that the documents regarding the former Albany bishop are constitutionally protected under the religious clauses of the First Amendment.

State Supreme Court Justice L. Michael Mackey, citing court decisions dismissing similar arguments that have been invoked by the Catholic church to try and shield internal files on priests accused of child sexual abuse, noted the case involves allegations of child molestation and not an internal church dispute or employment matter. He said that under pre-trial discovery rules, the records should be treated the same as disciplinary files for a rank-and-file priest.

“To hold otherwise would require courts to conclude that ecclesiastical principles could reasonably impose or suggest different requirements for the protection of children from sexual molestation, than the requirements generally imposed by society,” Mackey wrote in the decision, issued Monday. “If the First Amendment does not shield religious organizations 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 misconduct.”

Mackey will review the documents “in camera” — meaning they are not yet public and he will examine them in private. The judge will determine whether the materials include any probative or admissible evidence that should be turned over to the attorneys for a woman who alleges she was abused by Hubbard, former priest Francis P. Melfe and another priest for three years beginning in 1977 when she was 13.

The records are being sought in connection with her lawsuit filed under the state Child Victims Act against Melfe, Hubbard and the Roman Catholic Diocese of Albany. Melfe, like Hubbard, is a target of multiple child sexual abuse claims.

The archdiocese’s opposition to disclosing the records had centered on its assertion that their release would interfere with and chill the Roman Catholic Church’s constitutionally protected right of self-governance, specifically its “Vos estis lux mundi” investigation into alleged wrongdoing by Hubbard, who was bishop of the Albany diocese from 1977 to 2014.

The decision was issued three days after Hubbard announced he had formally asked the Vatican to permanently remove him from being a member of the clergy. Hubbard’s extraordinary request was made as he is facing multiple Child Victims Act lawsuits that accuse him of child sexual abuse — allegations that he has denied — and of systematically shielding other priests accused of similar crimes.

Mackey did not order the archdiocese to turn over all of its correspondence with the Vatican regarding the investigation of Hubbard. His decision said correspondence between the archdiocese and the Vatican, as well as an “internal memorandum” from the archdiocese to the Vatican and a document titled “Mandate for appointment of Canonical Counsel,” are “constitutionally protected documents and need not be produced.”

But the “enclosures” to those records, which in some cases are hundreds of pages, “must be provided to the court for in camera review because the archdiocese has not given any information for the court to determine whether they are constitutionally privileged,” the judge wrote.

It’s unclear what type of information is in the internal records, where the archdiocese’s investigation of Hubbard stands or what it uncovered, or whether he may have faced the prospect of laicization even if he did not request it.

The archdiocese’s records on the former bishop were created under disciplinary procedures commonly known as “Vos estis” that were mandated by Pope Francis in 2019 to govern 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 the woman identified in the 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.

Martin D. Smalline, an Albany attorney who filed the lawsuit with his law partner JoAnn P. Harri, praised the judge’s decision and accused the diocese and archdiocese of playing a “shell game” with Hubbard’s disciplinary records.

“We believe Justice Mackey struck a proper balance in ordering an in camera review of the enclosures of the Vos estis file of Bishop Hubbard that may reasonably include investigative materials bearing on Bishop Hubbard’s sexual abuse of children,” Smalline said. “This rightly establishes that the victim of a bishop is entitled to the same rights of discovery as the victim of a parish priest.”

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 he had hosted weekend poker nights with other priests. The complaint alleges Melfe, Hubbard and another priest, Albert DelVecchio, sexually abused the plaintiff by masturbating on her. She alleges more serious sexual abuse by Melfe, and accuses DelVecchio — who died in 2017 — of raping her.

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, including records documenting their psychological treatment and counseling at private facilities. 

Terence P. O’Connor, Hubbard’s attorney, did not respond to a request for comment.