Documents in Case of Sexual Abuse by a Priest to Be Made Public, under C.a. Ruling

Metropolitian News-Enterprise
August 4, 2015

Edward Fitz-henry

The Sixth District Court of Appeal has affirmed an order that confidential discovery responses by the Roman Catholic Diocese in Monterey, in an action by a man who was a minor when he was allegedly sexually abused by a priest in 2004 and 2005, be turned over to a local newspaper.

The opinion was handed down Friday and was not certified for publication. Justice Franklin D. Elia authored it.

The Diocese had obtained a protective order in 2011 when it was sued by “John RJ Doe” in connection with the purported abuse of him by then-Father Edward Fitz?Henry. The order said:

“Until further notice, no records produced in discovery shall be disseminated or their contents disclosed to third persons prior to trial or adjudication on the merits.”

According to news reports at the time, an investigation commissioned by the Diocese did not bear out allegations by Doe, but did find that there was credible evidence of sexual abuse by Fitz?Henry of a youth 20 years earlier.

This substantiated the averment in Doe’s complaint that the Diocese knew of Fitz?Henry’s “dangerous sexual propensities and status as a child molester.”

Doe and the Dio­cese reached a settle­ment, reportedly for $500,000, and the action was dismissed on Feb. 22, 2012.

Fitz?Henry brought a cross-complaint against the Diocese based on public disclosures it had made concerning the matter, including divulging that he had received counseling. That action, also, was settled, and was dismissed on May 31, 2013.

Newspaper Enters Case

In May of 2013, Milestone Communications, doing business as the Monterey County Weekly, filed a motion to intervene. It sought to have the protective order rescinded or modified.

Elia’s opinion says the filing was on “May 20 or 21, 2013.” The Monterey Superior Court’s online register lists hearings, by date, but not the filings of papers.

The newspaper’s website contains a Sept. 12, 2013 posting which provides background information on the case. It reveals:

“In exchange for his resignation, Fitz-Henry received a financial settlement from the Diocese, the terms of which have never been disclosed. Patrick Wall, a former Benedictine monk and ‘bishop’s man’—a guy sent to clean up church messes, including sex-related scandals—says the amount could be enough for a laicized priest [a priest returned to the laity] to live in relative comfort for the rest of his life.”

What It Seeks

Explaining the reason for the newspaper’s involvement, the posting says:

“Given the case ended in a settlement and the risk of tainting a jury no longer exists, the Weekly has sought full and legal access to all of the documents—those filed under seal per Wills’ order, the depositions given by Fitz-Henry and Don Cline [the investigator for the Diocese], and any other depositions that may have taken place—in the case. The paper seeks to tell the full story of Edward Fitz-Henry, including what was discovered and reported during the Diocese’s investigation; any responses offered by the Diocese’s Independent Review Board (a team comprising church members that looks at personnel issues involving clergy); how the Diocese of Monterey dealt with a veteran priest accused of molestation; and how it handles victims of alleged sexual assault at the hands of clergy.”

It adds:

“The Weekly’s motion contends that, in balancing the competing interests, Fitz-Henry’s right to privacy is outweighed by the public interest in disclosure of information concerning allegations of sexual assault against minors and of a cover-up by the Diocese. Other courts around the country have found that the public’s interest warranted disclosure of information about sexual assault in the Catholic Church and a decades-long pattern of deception and cover-ups by the church when it comes to protecting their own.”

Diocese Lawyer Argues

Attorney Paul Gaspari, of the San Francisco law firm of Weintraub Tobin Chediak Coleman & Grodin, argued at a Dec. 9 hearing in support of the Diocese’s position. He questioned whether there was legitimate public interest in events long in the past, especially in view of Fitz-Henry no longer being a priest.

Gaspari said:

“And publishing what someone from the Diocese may have in good faith done in 1990 but should have done something different based upon the sensibilities of 2013 is going to do nothing to protect the public.”

He added:

“The Weekly is sure to run articles selectively choosing from any and all allegations that can be used to cast aspersions on the Diocese of Monterey. The Diocese of Monterey, in turn, will be forced to choose between the specter of responding publicly and, thus, continue to prolong and extend a matter that was long-ago resolved, or risk the danger that a ‘no comment’ statement will be seriously misconstrued. Either way, the Diocese of Monterey is sure to face a deluge of negative press coverage from the Weekly without any semblance of an even playing field.”

San Juan Bautista attorney Daniel J. De Vries, representing Fitz-Henry, told the judge:

“There is no public interest because he wasn’t found to be guilty of anything.”

Monterey Superior Court Judge Thomas Wills said it was “not an easy decision,” but opted to adhere to his tentative decision to modify the protective order so as to allow disclosure of the documents, with specified redactions and exceptions.

His stayed his order to maintain the status quo until the appeals court could act.

Appeals Court Decision

In affirming, the Court of Appeal agreed with the Diocese that the statutory requirements for intervention by the newspaper were not met. That had no effect on the outcome, however; Elia explained:

“Nevertheless, aside from its challenge to the intervention on procedural grounds, the Diocese does not cite authority precluding the Weekly’s standing to request access to the discovery materials. The court was presented with an issue over which the parties themselves disagreed: Doe wished to release the documents, while the Diocese vigorously opposed it. Whether or not the procedural device of intervention was correct, the modification order itself can be reviewed for jurisdictional and substantive sufficiency.”

The jurist wrote:

“On this record we cannot find an arbitrary or unreasonable exercise of the superior court’s discretion. The court identified relevant privacy and public interests, and it carefully screened the materials to ensure that individual identities were protected.”

Diocese Protests

The Diocese argued that it would not have been as forthcoming as it was in providing discovery if it had known there would have post-trial disclosure, and would have sought a document-by-document determination as to discoverability. Elia responded:

“The Diocese’s assumption that it could rely on the permanence of the protection was not reasonable, both under the law and under the terms of the order itself, which was subject to modification upon “further notice.” The court was not bound by Doe’s stated intent in any event; once the litigation ended, the preservation of an impartial jury pool (and thus of defendants’ right to a fair trial), which was the predominant reason for the protective order, was no longer a reason for the restriction.”

Elia said the Diocese “is understandably concerned” about news media coverage in the event the documents are disclosed and the dilemma of having to “try the case in the press” or suffer adverse consequences from not commenting. He wrote:

“We cannot, however, presume the inevitability of this scenario. The possibility of unfavorable press coverage does not mean that the Weekly’s readers would necessarily accept a negative slant imposed on the subject or be confused about its relevance. While some readers may find the Weekly’s reporting newsworthy and of current concern, others might question its accuracy, reject it as sensationalistic journalism, or regard the subject as obsolete and uninteresting in light of the 10-year interval since the underlying events and the termination of Fitz-Henry’s service. And the Diocese, should it choose to respond, is well equipped to repel any statements it believes to be inaccurate or in the nature of unwarranted “smear tactics.” The superior court was entitled to accord these concerns less weight than the public interest in ‘avoiding future harm’ through knowledge of the Diocese’s awareness of and response to alleged clergy misconduct—even while filtered through the post hoc (and possibly even speculative and unreliable) reporting by the media.”

The case is Doe v. The Roman Catholic Bishop of Monterey, California, H040662.








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