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In re Clergy Cases I.

September 30, 2010

IN RE THE CLERGY CASES I.
JOHN DOE 1 ET AL., PLAINTIFFS AND RESPONDENTS,
v.
FRANCISCAN FRIARS OF CALIFORNIA, INC., ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from orders of the Superior Court of Los Angeles County. Peter D. Lichtman, Judge. Affirmed. (JCCP No. 4286)

The opinion of the court was delivered by: Grimes, J.

CERTIFIED FOR PUBLICATION

INTRODUCTION

This consolidated appeal arises from lawsuits in which 25 plaintiffs sued defendant the Franciscan Friars of California, Inc. (the Franciscans) alleging they had been sexually abused by Franciscan brothers. In a settlement of the lawsuits, plaintiffs and the Franciscans asked the court to retain jurisdiction to determine if it was appropriate to publicly release confidential files of the alleged perpetrators, appellants Samuel Charles Cabot, Mario Cimmarusti, David Johnson, Gus Krumm, Gary Pacheco, and Robert Van Handel (the Individual Friars). We hold that compelling social interests in protecting children from molestation outweigh the Individual Friars' privacy rights, and the trial court correctly ordered the public release of psychiatric and other confidential records in the possession of the Franciscans.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Settlement Agreement

In 25 separate lawsuits, plaintiffs alleged they had been sexually abused by members of the clergy, including the Individual Friars.*fn1

During the pendency of the proceedings, the Franciscans produced some personnel files and other confidential files of the Individual Friars to the trial court and plaintiffs, along with various privilege logs. The Franciscans also submitted deposition transcripts with redactions. On May 25, 2006, the Franciscans and plaintiffs entered into a written settlement agreement. The agreement required the Franciscans and another named defendant, the Roman Catholic Archbishop of Los Angeles, to pay the total sum of $28,450,000 to plaintiffs. The Individual Friars were not named defendants in all 25 lawsuits, and most of them did not sign the settlement agreement.

Paragraph 15 of the settlement agreement established a procedure for a hearing officer to decide whether the Franciscans' confidential files concerning the Individual Friars could be released to the public. The Franciscans agreed to produce to plaintiffs and lodge with the court the files of any alleged perpetrator, all documents previously withheld from plaintiffs as identified in privilege logs relating to childhood sexual abuse, deposition testimony, and any new privilege logs reflecting withheld documents. After the Franciscans submitted the documents to the hearing officer, the Franciscans had 15 days to "provide appropriate notice of the potential release of such documents to any [alleged perpetrator], and/or any affected third parties [who had the right to] submit his or her objection(s) . . . ." The hearing officer would then hold a hearing and determine which redactions, withholdings, or objections would be disallowed and which if any documents could be released to the public. The parties agreed that no redacted or withheld document would be released unless authorized by the hearing officer.

Additionally, pursuant to Paragraph 15, no third party privacy rights could be claimed by the Franciscans as to documents deemed to affect "public safety issues relating to childhood sexual abuse" or that reflect "the knowledge of the defendants as to the suspected sexual abuse of a child" or the "cover up" thereof. However, this provision did not limit the rights of third party objectors, including alleged perpetrators such as the Individual Friars, to assert any objections supported by law. The settlement agreement stated the documents "to be produced have been or would have been subject to discovery obligations in the litigation . . . ."

The settlement further provided that it was "a binding agreement, enforceable under California Code of Civil Procedure Section 664.6. The Parties hereto consent and agree that the Superior Court . . . shall retain jurisdiction to enforce the terms and conditions of this Settlement Agreement, including . . . Orders of the Superior Court . . . made under paragraph 15 . . . subject to normal appellate rights and procedures . . . ." After the settlement agreement was executed, the underlying lawsuits were dismissed. The trial coordinating judge designated the Honorable Peter Lichtman as the hearing officer to preside over the enforcement of Paragraph 15.

2. The Proceedings Addressing the Release of Documents

In September 2006, the Franciscans and plaintiffs began the process of determining which if any documents could be released to the public. In addition to those documents previously produced, the Franciscan Friars submitted to the trial court other files and depositions relating to the Individual Friars, along with proposed redactions and objections. The documents included psychiatric reports.

The Franciscans notified the Individual Friars of their right to object to the publication of the documents. In response, and as permitted by Paragraph 15 of the settlement agreement, most of the Individual Friars served objections to the release of some documents, or parts of documents. Among other objections, the Individual Friars argued the documents were protected from disclosure by their constitutional right to privacy, the psychotherapist-patient privilege, and the physician-patient privilege. The Individual Friars also submitted privilege logs. In a stipulated order, plaintiffs, the Franciscans and the Individual Friars agreed that the privacy issue would be decided first, as it might be dispositive.

In two hearings, the Franciscans, the Individual Friars, and plaintiffs addressed the threshold issue of whether the Individual Friars had a privacy right to prevent disclosure of their confidential files. In its June 18, 2007 order, the court found it had jurisdiction to "make findings of facts under a Section 664.6 reservation." The court found the Individual Friars' privacy rights "must give way to the State's interest in protecting its children from sexual abuse."

In March 2008, the Individual Friars served additional privilege logs. In September 2008, the Franciscans objected to the disclosure of documents on the basis of the psychotherapist-patient privilege. The Individual Friars also objected that, as nonparties, they could not be bound by the settlement agreement; Paragraph 15 was not enforceable; and their confidential files were protected from disclosure by the psychotherapist-patient and the physician-patient privileges and their constitutional right of privacy.

The Individual Friars argued the release of their personal psychiatric information to the Franciscans did not waive the privileges because disclosure was reasonably necessary to accomplish the purpose for which the psychotherapists had been consulted. They supported their privilege arguments with a copy of the April 1988 Operating Policies and Procedures in the Santa Barbara Province for Friar Conduct. This document detailed the steps the Franciscans were to take when there were accusations of sexual abuse by friars.

On February 10, 2009, Judge Lichtman referred the Individual Friars' jurisdiction challenge to the coordinating trial judge, the Honorable Emilie Elias. On March 17, 2009, Judge Elias overruled the objections to the court's jurisdiction to decide whether to release the Individual Friars' files. Thereafter, proceedings were held before Judge Lichtman to resolve the objections to publication of the Individual Friars' confidential files.

On April 2, 2009, Judge Lichtman issued an order finding Paragraph 15 valid and enforceable, and the Individual Friars' rights had been preserved as they had been given notice and an opportunity to be heard. The court overruled the Franciscans' and the Individual Friars' objections based on the psychotherapist-patient privilege. The court was not persuaded that disclosure of the Individual Friars' psychological records to various Franciscan clergy was reasonably necessary to accomplish treatment and diagnosis of the alleged perpetrators. Further, the court held the Franciscans failed to submit evidence that they were "rendering psychotherapy to the alleged perpetrators or [were] being supervised by the treating psychotherapists. Instead, [the Franciscans] merely contend[] that 'the evidence will show that there were two purposes for which alleged perpetrators were sent by the Franciscans for psychotherapy: 1) to obtain a diagnosis that would allow the Franciscans to make decisions concerning any continued ministry by the alleged perpetrator (including monitoring or other restrictions that may need to be imposed on the alleged perpetrator); and 2) to obtain treatment for the alleged perpetrator of any mental or emotional condition of the alleged perpetrator, including diagnostic information necessary to such treatment." (Fn. omitted.)

Moreover, the court found "the alleged perpetrators waived the privilege by attending the therapy treatments knowing that the information provided during the course of the therapy sessions would be shared with members of [the] Franciscan Friars. . . . The Operating Policies [and Procedures in the Santa Barbara Province for Friar Conduct] . . . clearly indicated that information relating to the alleged perpetrators' treatment and diagnosis would be disclosed to other members of [the] Franciscan Friars." (Fn. omitted.) The court ordered ...


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