In a last-minute effort to shield thousands of pages of church records on priests accused of sexual misconduct, the Boston Archdiocese yesterday asked a judge to bar public access to the files until she decides on a church motion to dismiss all clergy sexual abuse lawsuits on First Amendment grounds.
The church made its emergency request in Suffolk Superior Court late yesterday afternoon, as it was delivering about 11,000 pages of potentially explosive church records involving 65 accused priests to lawyers representing alleged victims of the Rev. Paul R. Shanley.
Since August, the church has sought to delay releasing the documents. Earlier this month, for instance, church lawyers turned over only records of complaints against the 65 priests instead of entire files, which included how the church handled the complaints.
Earlier efforts by the archdiocese to have sexual abuse cases dismissed on First Amendment grounds have been rebuffed by trial court judges, although the constitutional merits of the argument have not been tested in Massachusetts appellate courts.
Jeffrey A. Newman, an attorney for scores of alleged victims, said that if the church wins the First Amendment argument, “it would mean that the courts would be saying to the church, `Do whatever you want, even if it violates our civil and criminal laws.’ “
And Roderick MacLeish Jr., an attorney working with Newman, said the documents delivered yesterday are likely to be highly controversial, and similar to those previously aired in the lawsuit by alleged Shanley victims, as well as those publicized in lawsuits filed by victims of former priest John J. Geoghan.
One file delivered yesterday, MacLeish said, contains an acknowledgement by a church official that a priest was transferred to the Boston Archdiocese even though he had a previous “problem with little children.” Nevertheless, the file shows, the priest was accepted by Boston church officials and assigned to a parish where he abused more children.
“That’s from the first file that I picked out at random,” MacLeish said. “I can’t say the name of the priest and I can’t say if he’s still in ministry because of the church’s emergency motion, and that’s very upsetting.”
In their motion, church lawyers asked the court to prevent public access to the records on accused priests - which were delivered yesterday under a court order - until at least Jan. 17, when the court is scheduled to hear a church argument that all clergy abuse lawsuits be dismissed on grounds that they violate the constitutional protection of the separation of church and state.
But attorneys for Cardinal Bernard F. Law and the archdiocese may not have precedent on their side. In previous arguments over the airing of church records on clergy abuse, lawyers for the Boston Archdiocese have argued that the Constitution allows the church to regulate its internal affairs, including the disciplining of priests, under its own rules without interference from civil authorities.
That argument has been repeatedly set aside by Massachusetts judges. The church motion filed yesterday will be heard by Superior Court Judge Constance M. Sweeney. It was Sweeney who overrode church objections last year and ordered all documents in the lawsuits involving serial pedophile John J. Geoghan be made public.
In her ruling last November, Sweeney wrote that even though church officials enjoy some constitutional protection, church law “does not automatically free them from the legal duties imposed on the rest of society,” including liability in civil lawsuits.
Sweeney also wrote that sexual abuse by clergy who were repeatedly transferred from parish to parish is a matter of public interest, noting that even the archdiocese in its newspaper had reviewed the issue.
For the Boston Archdiocese, the stakes have never been higher. It is facing claims from more than 300 alleged victims that some experts believe could cost $80 million or more to settle. And the church’s insurers are arguing that the negligence of bishops supervising abusive priests nullifies insurance coverage.
What’s more, as MacLeish’s disclosure last night suggests, the 11,000 pages are believed to contain ever more damaging evidence about the sexual misconduct of scores of additional priests.
Both Newman and MacLeish, whose firm Greenberg Traurig represents at least 200 clients with claims against the Boston Archdicese, criticized the timing of the church’s filing.
“Doing it at a time of day when the courts are about to close was a tactical desicion to deny people the right to go to court and seek a denial of the motion,” MacLeish said.
Jonathan M. Albano, of the law firm Bingham McCutchen, whose arguments on behalf of the Globe led to Sweeney’s ruling last November, said the newspaper would file a motion opposing the church’s effort to seal the documents.
Albano noted that in the Geoghan case, Sweeney ruled that the church had no right to keep secret evidence of this type of misconduct.
At the time Sweeney ruled, two other judges had already denied efforts by the archdiocese to have cases involving Geoghan and another priest, Paul J. Mahan, dismissed on First Amendment grounds. The judges did not rule on the merits of the First Amendment claims, but said they would not consider such arguments before the production of documents.
Albano, in an interview, raised another objection to any order sealing the documents from public view: If the courts rule that the First Amendment shields the church from civil responsibility in sex abuse cases, he said, the public has a right to see the documents so it will know the kind of activity that the courts would provide constitutional protection.
Arguments over the ability of church officials to keep their records relevant to civil lawsuits from public view began in earnest after a September 2000 ruling by former Superior Court Judge James McHugh that granted a church request to keep records in the Geoghan lawsuits secret.
Separately, the church also asked McHugh to withhold from the public the fact that Law had been named a defendant in several of the Geoghan lawsuits. McHugh denied that request.