A Novel Tack by Cardinal

Enmeshed in a high-stakes battle to maintain the secrecy of church documents involving priests accused of molesting children, Los Angeles Cardinal Roger M. Mahony has adopted a legal strategy more aggressive than that of any other bishop in the country, according to scholars and attorneys.

At the center of the fight are thousands of pages from priest personnel files that Mahony has succeeded for more than a year and a half in keeping from prosecutors, lawyers for victims and the public.

Officials at the Roman Catholic Archdiocese of Los Angeles concede that the files include evidence that Mahony and other church leaders improperly handled some cases involving abusive priests.

“We believe that our early decisions were correct at the time they were made but, as our understanding grew, we concluded that those early decisions had generally been too tolerant,” said spokesman Tod Tamberg. “In retrospect, then, some of our early policies were mistakes.”

Tamberg said that, overall, Mahony should be seen as a national leader in reforming the church’s sexual abuse policies. But the cardinal’s opponents say that, if all the files became public, they would hobble his leadership of the largest Roman Catholic diocese in the United States.

To keep the files secret, Mahony’s legal team is pushing a novel argument in both criminal and civil courts -- a claim of what his chief lawyer, J. Michael Hennigan, has called a “formation privilege” between a bishop and his priests.

The archdiocese asserts that the privilege stems from a bishop’s ecclesiastical duty to provide a lifetime of formative spiritual guidance to his priests. As claimed by the archdiocese, the privilege would require that sensitive communication between a bishop and his priests involving counseling -- including documents relating to sexual abuse of minors -- be kept confidential.

Any action by the state to breach that privilege would violate both state law, which shields communications between a priest and a penitent, and the state and federal constitutions’ guarantee of religious freedom, the archdiocese’s lawyers argue.

“I cannot and will not jeopardize those privileged communications,” the cardinal wrote in a Feb. 28 letter to Los Angeles priests and other church leaders. The files could include items such as notes by the cardinal or church investigators on their conversations with victims, witnesses and accused priests; psychological evaluations of alleged abusers ordered by the church; letters about priests’ conduct; and assessments by supervisors.

Using the privilege claim, Mahony’s lawyers have effectively employed the secrecy of grand jury proceedings as a shield against public disclosure, not only of the disputed files, but of the church’s legal arguments as well.

Some church lay leaders and canon law experts -- as well as victims’ advocates and prosecutors -- have expressed reservations and, in some cases, outrage about the cardinal’s stance.

Marci Hamilton, a law professor and church-state scholar who has advised lawyers suing the archdiocese, summed up her description of the formation privilege this way: “It just doesn’t exist.”

Norman Abrams, interim dean of the UCLA School of Law and a privilege expert, said he had never heard of a formation privilege.

Last month, Mahony’s legal tactics were criticized by an independent Catholic national review board that issued a report on the sex scandal.

“This argument did little to enhance the reputation of the church in the United States for transparency and cooperation,” the report stated. The document also advised bishops and others that “the church cannot and should not hide behind its lawyers or the law blindly and in all circumstances.”

The report triggered a fresh round of criticism of Mahony, one of only four bishops it referred to by name as having harmed the church’s moral standing during the scandal.

The priest abuse scandal won’t go away “unless we have transparency and openness,” said William Donohue, head of the Catholic League for Religious and Civil Rights, a conservative advocacy group based in New York. “I see a need for Cardinal Mahony to be more cooperative” and to stop fighting prosecutors.

Hennigan defended the archdiocese’s legal tactics.

“There is no suggestion in the report that our positions are not principled or lack authority in law,” he said, referring to the National Review Board’s statement. The formation privilege is “close and sometimes identical to the priest-penitent privilege,” Hennigan said.

In one case last year, he said, Ventura County Superior Court Judge Vincent James O’Neill Jr. ruled that Mahony had been correct in arguing that files of an allegedly abusive priest were protected by a privilege and did not have to be turned over to a grand jury in that county. O’Neill’s ruling is sealed, because it involves a grand jury.

The review board’s report was “enormously unfair ... and not well-informed” about the grand jury investigations the church faces, Hennigan said.

The board’s criticism will not change Mahony’s legal tactics in either the criminal or civil cases, Hennigan went on. “Our strategy is to get these [civil] cases settled.”

Mahony’s opponents, however, insist that the cardinal’s tactics have to do, not so much with sacred church doctrines, as with an attempt to save himself from further scandal.

Critics point out that Catholic confessions, by church law, can’t be written down and that superiors, such as bishops, are barred from hearing confessions from priests they supervise. Also, in secular courts, privileges are broken once a third party reviews the material in question -- for instance, some could argue, if a bishop receives a psychological report on a pedophilic priest.

The critics see a parallel between Mahony and Cardinal Bernard F. Law of Boston, who resigned in 2002 after the court-ordered release of 45,000 pages of church records showed that the bishop and others had routinely covered up for pedophilic priests.

“Cardinal Mahony and other bishops in the Catholic Church really believe they are above the law,” said Father Thomas Doyle, a North Carolina priest who co-wrote a controversial 1985 report warning U.S. bishops of a looming priest sex scandal. “Their fundamental goal is self-preservation. Once those files are disclosed, it’s the beginning of the end.”

Mahony has admitted to having kept in ministry at least eight priests whose records included credible allegations of sexual abuse. Some stayed in the ministry for years. Three of those whom the cardinal kept on the job allegedly committed additional acts of sexual abuse or had “boundary violations” with 10 children, according to a report issued by the archdiocese last month. By February 2002, those priests had been retired or removed from ministry.

Through Tamberg, Mahony declined to say whether the release of documents would reveal further errors he had made in dealing with sexual abuse by priests.

The Los Angeles Archdiocese is fighting in two different sets of legal proceedings to keep priests’ records out of the hands of both prosecutors and attorneys for alleged victims.

On the criminal side, the Los Angeles County Grand Jury has subpoenaed nearly 2,000 pages of documents related to the alleged crimes of as many as 31 priests. Mahony has refused to turn the documents over to prosecutors, although he has publicly said he was cooperating with them.

Los Angeles County Dist. Atty. Steve Cooley has disputed Mahony’s claim of cooperation.

“Archdiocese lawyers and lawyers for the accused priests have asserted for several months that certain documents sought by the grand jury are somehow protected and privileged,” Cooley said in a statement. “It is my position, both in court and in public, that this claim is not well founded in law.”

In a recent letter to priests, Mahony said he had provided law enforcement agencies with all the information they had historically used to put child molesters behind bars, such as names of victims and accused priests, the years of alleged abuse, records of the priest’s assignments and each priest’s current status and location.

Los Angeles County Deputy Dist. Atty. William Hodgman, who is leading the investigation of allegedly abusive priests, said that sort of limited release of information was not enough. “I won’t allow the Archdiocese of Los Angeles to dictate how we will run our investigations or our cases,” he said.

In fact, however, Hodgman has little choice for now. In January 2003, the archdiocese and prosecutors agreed to give the disputed documents to a referee -- retired Los Angeles Superior Court Judge Thomas F. Nuss -- to decide whether a legal privilege shields the documents from disclosure.

Under the terms of the agreement, which was approved by Superior Court Judge Dan Oki, Nuss is being paid $350 an hour by the archdiocese for the time he spends on the case.

Hodgman said he had agreed to the arrangement because it had been “designed to expedite resolution of these issues, not exacerbate or prolong them.”

“No one could have foreseen the tortuous route it has taken,” he said.

Nuss has held a series of closed-door hearings on the documents and has issued some preliminary rulings, which remain sealed.

Last September, The Times went to court seeking to open Nuss’ decisions and hearings to public scrutiny. That petition was rejected by the state appellate courts, and both prosecutors and the archdiocese’s lawyers have said that the newspaper’s appeal caused further delays in the proceedings.

Nuss’ rulings, when they come, will remain sealed, because they relate to closed-door grand jury proceedings. Whichever side loses before Nuss is expected to appeal, which would further delay any release of documents.

Hodgman, however, has now brought charges against one priest, Michael Wempe, and intends to seek Wempe’s personnel records in open court. Doing so might not bring any documents to light, but it could force the archdiocese to argue its case fully in public for the first time.

Beyond the criminal proceedings are civil suits in which at least 42 attorneys representing about 500 alleged victims are seeking the personnel records of about 225 priests in the Los Angeles Archdiocese. Lawyers for the plaintiffs and the church are under a gag order during mediation talks aimed at settling the cases. Those talks are expected to continue into the summer.

Sources familiar with the civil mediation proceedings say the archdiocese is following a pattern established in the grand jury probe. It has turned the records of sexually abusive priests over to another retired Los Angeles Superior Court judge, Lester Olson. He will review the documents and make recommendations to the jurist supervising the mediation, Superior Court Judge Peter Lichtman, who will ultimately decide what records are privileged.

Mahony continues his legal assertions as other U.S. bishops are losing the battle to conceal documents in courts of both law and public opinion. State court judges in Massachusetts, Arizona, Iowa and Kentucky have ordered dioceses to release thousands of pages of church documents, after finding that the church could not seek immunity under its 1st Amendment right to free exercise of religion.

In Boston, Associate Justice Constance M. Sweeney ruled in 2002 that the church’s argument would “have the practical effect of granting to hierarchical church representatives unqualified immunity from secular legal redress, regardless of how negligent, reckless or intentional the representatives’ supervision over their subordinates might be and regardless of the severity of the injuries suffered by claimants.”

Others dioceses, such as those on Long Island, N.Y., and in Manchester, N.H., have voluntarily turned over boxes of priests’ personnel files to local grand juries for review.

In California, Bishop Tod D. Brown of the Diocese of Orange has rejected use of a formation privilege and voluntarily provided most documents sought by prosecutors and lawyers for victims in recent months, the involved parties said.

Five years ago, Brown and Mahony were on the losing end of a costly court battle that forced the release of incriminating documents about alleged sexual abuse by Msgr. Michael Harris, a popular priest from Orange County. In that case, courts rejected many of the privileges asserted by the church, although not the formation privilege, which Hennigan had not yet developed. The dioceses later settled the case with one victim, Ryan DiMaria, for $5.2 million.

Officials in the California dioceses of Fresno, San Jose and Santa Rosa say they are not making the same legal argument as the Los Angeles Archdiocese.

One problem, scholars say, is that there’s no mention of the formation privilege in canon law, the internal code of rules that governs the church.

“In these matters canon law has little to say in one way or another,” said Ladislas Orsy, a Jesuit priest and visiting professor at the Georgetown University law school in Washington, D.C., who has also taught canon law at the Gregorian University in Rome. Canon law takes “for granted that in a legitimate criminal investigation, church authorities should cooperate with state agencies.”