Bridgeport Rulings Impact
Lawyers Discuss Historic Records Release Case
BY ROBERT KUMPEL
January 3-16, 2010 Issue | Posted 12/27/09 at 7:00 PM
BRIDGEPORT, Conn. — While the court-ordered release of a 1999 deposition of Cardinal Edward Egan is not the first time sealed testimony from a clerical sex-abuse case has become public, it appears to be just the beginning of more embarrassment for the Church.
More than 12,000 pages of documents were released by the Diocese of Bridgeport, Conn., with the media focusing on remarks by Cardinal Egan, who was at that time the diocese’s bishop. The remarks chosen by the media make him appear aloof, indifferent and hesitant to take any claim of clerical sexual abuse seriously.
More testimony and private files from other abuse cases are beginning to become available. And at least two Catholic attorneys believe this could signal a new strain in church-state relations, especially by bishops who do not want the government intruding into Church affairs.
Mark Chopko, former general counsel to the U.S. Conference of Catholic Bishops, said the Church will litigate cases differently out of necessity and this will raise the bar on confidentiality orders, resulting in cases that are even more contentious.
“No party should simply count on the good faith of the parties or even the adequacy of promises of confidentiality made years ago,” Chopko said. “Notably (as I remember the case), the initial trial judge in the case granted an order of confidentiality. But that judge no longer was assigned to the case when The New York Times and others sought the records. That [second] judge, who lacked the connection to the case, redid the first judge’s orders against different facts and circumstances. So hereafter I expect that parties will want better assurances and regularly revisit those matters.”
Chopko doesn’t think the Church ever imagined that transcripts from any sex-abuse case would be publicly released. “In late 2001 The Boston Globe won a similar lawsuit against the Archdiocese of Boston, which resulted in the release of records from Father John Geoghan, a serial offender,” he said. “So this ruling is not precedential. I suspect there are secular examples as well where media go back to seek records from otherwise closed and completed cases.”
But he said that what is troubling is the question of whether the diocese would have approached the case differently were it aware that some media outlet, a decade later, would try to open closed files, he said. There are many reasons to seal a case, Chopko said, including protecting the privacies of supposed victims and perpetrators and their families.
University of Notre Dame Law School professor Richard Garnett, who focuses on issues of religion in the public square, said that the Church has reason to be more guarded than ever.
“The nature of the balance is very different in a civil case than in a civil case when the government is prosecuting,” he said. “If they [the plaintiffs] have already won release and got recovery [their award], it’s not clear that what’s in that file is going to be useful in helping them get that recovery. The church autonomy principle and the church self-government principle does, it seems to me, give us good reason to worry about ‘fishing expeditions.’”
The right of church self-governance is important, said Garnett, but there are limits to church autonomy. “The Church has its own jurisdiction when it comes to membership, ordination and matters like that. Where you get in trouble, obviously, is that it doesn’t mean that the Church is exempt from or immune to civil laws,” he said. “In some of these cases about disclosures, it’s sometimes hard to figure out which side of the line we’re talking about. The government is entitled, as a general matter, to relevant evidence about crimes. The mere fact that that evidence is embarrassing to the Church doesn’t mean that their religious liberty is being violated. The question is often going to hinge on ‘What is this information for?’ ‘What’s the relevance of it?’”
“I remember a couple of years ago, the attorney general of Massachusetts started making some noise about the possibility of the state getting into the business of overseeing who is selected for ordination to make sure that they were ‘kid safe,’” he continued. “It wouldn’t be appropriate for the government trying to get that kind of evidence from the Church for that kind of regulation, because it’s not entitled to do that kind of regulation. But if we’re talking about getting material relating to something over which the government does have jurisdiction, like, say, an assault on a child, then I’m not so sure that the church autonomy principle is going to shield the Church.”
So, does the release of a sealed deposition constitute an intrusion of the state into church affairs? Chopko contended that under certain circumstances, it can.
“If the court were ordering the Church to release certain confidential information, the matter could certainly be an interference in what the Church considers confidential. I suspect (but do not know) that the media did not look to get the supposed victim records in the Connecticut case, only the diocesan records,” Chopko said. “That’s certainly unfair and unbalanced. But if the material is already on file with the court as part of the discovery materials or other records lodged by the diocese in support of its case, the court already has possession of the material. If there were not an opportunity for the Church to assert its constitutional interests in certain records, that too would raise constitutional questions, not just church-state issues, but due process, as well.”
Bishop Blase Cupich of Rapid City, S.D., chairman of the U.S. bishops’ Committee on the Protection of Children and Young People, said he would like to make sure that the laws that are being applied to the Church in abuse cases is being equally applied to other institutions: “If, in fact, there is going to be an opening of sealed documents in the case of the Church, I would like to make sure that whatever standard is being used would be applied equally to the rest of society.”
Robert Kumpel writes from
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