Judge won't seal sex-abuse suits

Ruling says law doesn't apply to church cases

By Gregory A. Hall

Judge James M. Shake ruled yesterday. The law ''appears to be directed at perpetrators and not third parties.'' Jefferson Circuit Judge James M. Shake

July 12, 2002- A Jefferson Circuit Court judge refused yesterday to seal dozens of lawsuits alleging child sexual abuse by priests and employees within the Roman Catholic Archdiocese of Louisville.

Judge James M. Shake said a 1998 state law the archdiocese cited in its attempt to seal the lawsuits applies only to suits filed against the abusers themselves, while these suits are against the archdiocese.

''(The law) appears to be directed at perpetrators and not third parties, since it sets forth sexual offenses which a third party, such as a church or school, would be incapable of committing,'' Shake wrote.

The archdiocese is named as the sole defendant in each of the more than 150 lawsuits filed since April by people alleging sexual abuse. None of the priests or church employees are named as defendants.

The lawsuits allege that the priests and church employees ''engaged in a pattern'' of sexually abusing children and that archdiocesan officials knew about the alleged abuse and did nothing. The suits, however, do not offer evidence of such a pattern.

In his nine-page opinion, Shake said he was precluded from ruling on the constitutionality of the 1998 law, since it does not apply to the archdiocese.

However, he added that case law requires a hearing before cases can be sealed, and partly because the 1998 law seals cases before any hearing, it ''would seem constitutionally deficient.''

Attorneys for the plaintiffs and The Courier-Journal had filed legal motions to block the archdiocese's attempts to seal the complaints. The Courier-Journal argued that the law was unconstitutional because it allowed for ''secret justice.''

The Kentucky attorney general's office, which also opposed the archdiocese's attempt to seal the cases, made an argument that mirrored Shake's ruling yesterday. The attorney general argued that the law does not apply, so the question of its constitutionality is irrelevant.

Jon Fleischaker, an attorney for the newspaper, said the court's ruling is a victory for public access to the court records, adding that the law's constitutionality could be addressed in other litigation.

''Our goal was to keep the files open, to keep public access to what was going on in the cases, and we achieved that goal,'' he said. ''It is very possible that we may decide at an appropriate time to challenge the constitutionality of the law in another action.''

The archdiocese will not appeal Shake's ruling, said Brian Reynolds, the archdiocese's chief administrative officer.

''We have heard clearly from the Catholic people and from the community about the importance of openness as we strive to resolve these issues,'' he said, ''and that motivates us to simply accept the ruling of the judge.''

Reynolds said the archdiocese did not attempt to seal the cases because it feared what might they might reveal about the archdiocese's conduct. The archdiocese's only motivation, he said, was its belief that the law applied and its interest in protecting the privacy of the plaintiffs and those accused of abuse.

William McMurry, who represents most of the plaintiffs who are suing the archdiocese, said the judge's ruling was ''the right result for the right reason.''

''This statute has plain and simple language that makes it clear it only applies in lawsuits against the perpetrator of the abuse,'' McMurry said. ''Now the archdiocese will be subject to public scrutiny every step of the way.''

David Clohessy, national director of Survivors Network of those Abused by Priests, also applauded Shake's ruling. The archdiocese's effort to seal the cases ran counter to the reforms pledged by bishops meeting last month in Dallas, he said.

''It's appalling, frankly, in the wake of Dallas and all the eloquent promises about openness and transparency that they would consider it,'' Clohessy said.

Shake heard oral arguments June 27 on the constitutionality and applicability of the 1998 law, but lawyers continued to provide the judge with information to sway his decision as late as Tuesday.

Late Monday afternoon, an attorney for the archdiocese, Raymond Smith, filed an affidavit from state Sen. Tom Buford, a Nicholasville Republican who sponsored the 1998 law, saying it was intended to apply to cases against third parties such as the archdiocese.

The archdiocese filed a previous affidavit from Buford in its efforts to have the cases sealed.

On Tuesday afternoon, McMurry filed an ''emergency ex-parte motion'' to strike Buford's second affidavit, calling it an attempt to allow one legislator to speak for the entire General Assembly.

Shake wrote in his opinion that affidavits such as Buford's were ''of little value.''

McMurry said yesterday that he believes it is time for the archdiocese to meet with the plaintiffs and attempt to settle the cases, referring to a letter Archbishop Thomas Kelly sent last weekend to Catholics throughout the diocese. Kelly asked for forgiveness from victims of sexual abuse and from other parishioners for ''the ways in which the Church has betrayed your trust.''

''That is certainly consistent with Archbishop Kelly's recent communication to our Catholic community, and I look forward to the archdiocese reaching out to these victims to settle these cases,'' McMurry said.

The archdiocese favors mediation, Reynolds said, but added that it is too early to begin those discussions.

Staff writer Peter Smith contributed to this story.