Defamation - Protective Orderstrial Court Properly Entered Protective Order to Bar Parties from Revealing Identifying Information or Names of Alleged Victims of Sex Abuse by Priest Because It Was Drafted Narrowly Enough to Protect Alleged Victims and Permit Both Parties to Engage in Full Pretrial Investigation and Discovery

Chicago Daily Law Bulletin
July 20, 2004

The Illinois Appellate Court, 3d District, has affirmed a ruling by Peoria County Circuit Judge Scott A. Shore.

On May 30, 2002, the Catholic Diocese of Peoria issued a press release stating that the diocese had asked certain priests to step down from public ministry based on recent allegations of sexual misconduct against them. The release listed plaintiff Edward Bush as one of the defrocked priests: "Edward Bush, 70, former pastor of St. Patrick, Colona."

Bush filed a multi-count complaint against the diocese, Bishop Daniel Jenky and Monsignor Steven Rolphs, alleging defamation per se and per quod, false light, public disclosure of private facts and breach of contract. The plaintiff claimed that the defendants falsely and publicly accused him of sexually assaulting two young girls in the early 1960s.

The defendants moved for a protective order to keep the identities of the alleged sexual abuse victims confidential and to prevent the parties from revealing the alleged victims' names or other identifying information to the general public or media.

The trial judge entered a protective order in May 2003 stating that the victims' statements "should not be reproduced in full, in part or in summary form and information contained therein shall not be re-disclosed, outside of their attorneys ... without prior leave of court."

The trial judge denied the plaintiff's motion to vacate the protective order, but the judge did order the defendants to provide the names and addresses of the alleged sexual abuse victims, as well as the names and addresses of witnesses and people claiming to be witnesses to sexual abuse by the plaintiff.

In response, the defendants filed a motion for an emergency order for protection to extend the original order to cover any information that identified the alleged victims and witnesses.

The judge allowed the motion and amended the order of protection to provide that the parties were permitted to conduct discovery and investigate the claims and defenses, and to interview witnesses.

The plaintiff filed an interlocutory appeal pursuant to Supreme Court Rule 307(a)(1). The plaintiff argued in his appeal that by obtaining the protective order, the defendants were protecting the rights of the alleged victims, not their own. Therefore, the plaintiff contended, the defendants lacked standing to request the order because their interests were not implicated nor could they suffer injury from disclosure of the information.

The appeals court rejected that argument and affirmed the protective order. The appeals court said Supreme Court Rule 201 permits a trial court to issue a protective order as justice requires. The rule provides that "the court may at any time on its own initiative, or on motion of any party or witness, make a protective order as justice requires ... to prevent unreasonable annoyance, expense, embarrassment, disadvantage or oppression."

The court rejected the plaintiff's argument based on traditional principles of standing -- whether the defendants have a legal interest entitling them to the relief provided by the protective order. Traditional notions of standing required when seeking judicial relief are not present in this case, the appeals court said.

"Rule 201(c) empowers the court to issue protective orders as justice requires, without regard to who requests the relief," the appeals court said. "The rule does not require the petitioner to establish or even assert standing to seek the order. This order protecting alleged victims of sexual abuse is directly related to the goals of Rule 201(c), that is, preventing unreasonable annoyance, embarrassment or oppression."

The appeals court also rejected the plaintiff's argument that the protective order constituted an unconstitutional prior restraint on free speech under the First Amendment and that it was overly broad.

Edward E. Bush v. Catholic Diocese of Peoria, et al., No. 3-03-0775. Justice Tom M. Lytton wrote the court's opinion with Justices Kent Slater and Mary W. McDade concurring. Released June 29, 2004.


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