Church, State Meet before Judge
Sides look for intervention in audit

By Eric Moscowitz
Concord Monitor
January 21, 2005

Manchester - More than two years after the state's Catholic church leaders avoided criminal charges of child endangerment by settling with the attorney general's office, the church audit that was supposed to be at the heart of the agreement remains stalled. Yesterday, the two sides asked a judge to intervene.

In Hillsborough County Superior Court, a lawyer for the Diocese of Manchester said the church is ready to proceed with the audit on its terms, arguing that the state's vision of the audit would be a violation of the separation of church and state. The attorney general's office countered that the audit would be ineffective unless the state is given a chance to gauge whether church personnel are familiar with - and actually following - the church's new abuse policies.

Under the terms of the December 2002 settlement, the two sides agreed that the state could conduct an annual review of church policies and abuse-related documents, starting with 2003. But the agreement did not spell out the specifics of who should pay for the audit or what the scope of the audit should be, which is how both parties wound up in court.

The church insists that the state should pay for the six-figure audit, which the state wants performed by KPMG, an international accounting and auditing firm. The state contends that it's common practice for the audited party to pick up the tab -especially when the audit is part of an agreement not to prosecute criminal charges - but has since offered to pick up half the cost. Both parties also disagree over the extent of the questions KPMG can ask.

The two issues have defined the pleadings from both parties since the church filed a lawsuit in May 2004, asking the court to enforce the agreement on its terms, andJudge Carol Ann Conboy has been asked to rule on both matters. But at a hearing before Conboy yesterday, the two sides kept the argument to the nature of the audit.

In interviewing church personnel - including local parish volunteers and priests and administrators - the state wants to be able to ask questions about the effectiveness of the church's new training and abuse-reporting policies. But that would violate the First Amendment, argued David Vicinanzo, attorney for the diocese.

An audit seeking to gauge the "perceptions and behaviors" of church staff and volunteers would amount to "micromanaging the church,"said Vicinanzo, of the Manchester firm Nixon and Peabody. "This is a difficult, complicated issue, and it's one of the reasons why we have a Constitution," he said. He added that he thought the state had "shown an insensitivity, even a blitheness," about the importance of separating church and state.

Associate Attorney General Ann Larney said the issue had nothing to do with freedom of religion. The church avoided facing criminal charges by acknowledging in the 2002 settlement that it had protected abusive priests for decades through its internal handling of sexual-abuse allegations. Now, the state needs to make sure that the church is upholding its end of the settlement through the audit, Larney said.

"There are no First Amendment issues. The (settlement) contract is completely secular," she said. "Religious entities are not immune from the criminal law or the civil law."

Vicinanzo said the state should be able to ask only checklist-style questions that seek yes or no answers, like asking Sunday school teachers if they are aware of the training program or if they had read the policies and procedures about reporting. Larney said the audit needs to be able to gauge the effectiveness of the new church policies, which means asking additional questions about whether church personnel actually understand the policies and know how to follow them.

In June, a group of lay Catholics and other interested parties filed a motion to intervene. Conboy has not ruled on their status as interveners, but yesterday she allowed their attorney, David Braiterman, to address the court after Larney and Vicinanzo. Braiterman submitted a list of definitions of the word "audit"from a series of legal dictionaries to show that audits are supposed to be verifications of compliance.

Braiterman, of Concord, has offered his legal services free to the interveners, who include the Survivors Network of Those Abused by Priests, the New Hampshire Voice of the Faithful - an organization of churchgoers who support the victims and try to bring change to the church from within - and others. He reminded the court that the settlement "did not arise in a vacuum." Seeing the church try to limit the audit or avoid paying for it has been difficult for many who care about the church and want reassurance that the abuse is history. For them, a comprehensive audit is "the only way for the church to purge itself of what it perpetrated here," he said.

Conboy did not make a decision after the two-hour hearing and set no timetable, asking for patience. In the interim, she encouraged the two parties to try to reach an agreement.

Afterward, Vicinanzo proclaimed the success of the church's new child-safety policies, external audit or otherwise. "There is no entity in this state - or I would say any state that I'm aware of - that does as much as we do for the protection of children," he said. "You ask most lay people in the Catholic church today, and they know that the Catholic church is the safest place for kids. I'm one of them, and I know that's the case."

The church-state disagreement amounts to a debate over the meaning of a pair of words, "compliance" and "effectiveness," he said. The two parties are close, and if they could get together privately, Vicinanzo said, "I swear we could get this thing done in a Nextel minute."

Kelly Ayotte, the state's attorney general, seemed less certain that the matter could be resolved without Conboy. The parties wound up in court because their long settlement negotiations proved unsuccessful, she said. "We firmly believe that the audit has to measure effectiveness and has to measure whether the policies that they do, in fact, have in place are protecting children," she said. "They want to limit that portion of that, and we just simply cannot agree to that limitation."


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