the mahony files

By Diogenes ( articles ) | Dec 05, 2006

What did he know and when did he know it? Reporters, plaintiff attorneys, the DA, the grand jury, insurance companies, victim advocacy groups and victims themselves all want a look at Cardinal Mahony's archdiocesan files. He's been outstandingly nimble in avoiding disclosure. Herewith a brief overview of his moves.

November 2003. Citing a First Amendment right to freedom of religion, Mahony's lawyers claim it's "a simple matter of law" that the priest-penitent privilege extends to priest-superior communications. We read: "Lawyers for the archdiocese said Cardinal Roger Mahony had favored openness, but his legal advisers had overruled him."

January 2004. Mahony's lawyer Michael Hennigan asserts a "formation privilege" between a bishop and his priests, stemming from a bishop's ecclesiastical duty to provide a lifetime of formative spiritual guidance to his clergy.

March 2004. Asked about why legal experts had never heard of the "formation privilege," Attorney Hennigan answered, "Because it doesn't exist. I used the phrase once, a year and a half ago, in a different context, and discarded it." Then why not release the archdiocesan records? Because it would be illegal to do so, as they are the subject of court proceedings. "Even if we decided it is in the best interest of the church to distribute these documents, we could not do so. It is prohibited by law."

January 2005. Attorney Hennigan claims disclosure would "breach" the priest-bishop relationship and thus "would be a grave interference with the practice of Catholicism."

January 2005. The files aren't sacred after all. Attorney Hennigan claims the insurance companies suing to see the records "have full access to the files ... They are supposed to be on our side."

Spring 2005 The Archdiocese announces its willingness to make "proffers" -- i.e., summaries of contents of priests' personnel files -- available on its website. Was the sacrosanct nature of the priest-bishop privilege respected? The priests didn't think so. Attorneys for the priests attempted to block the proffers in the California Court of Appeals and later the state Supreme Court.

March 2005. Mahony insists, "The files are not going to be released publicly, no matter what happens." Asked why the fight to withhold the records, if they don't contain incriminating information, he answered, "Because it's the principle, the privilege. You've got to keep in mind the priests involved -- it's their files. The priests have protection under the California Evidence Code."

July 2005. Ordered by an appellate court to comply with grand jury subpoenas personnel records of two priests, Archdiocesan attorney Donald Woods said he hoped a higher court would take a different view of the priest-penitent privilege and allow three-way communications between the bishop, his vicar and an accused priest to fall within it. "It's like having two priests in the confessional instead of one," he said.

December 2006. Mahony argued that he can't release the files because a priest owns his own file, and state law forbids disclosure without the priests' consent. "If I took someone's file and released privileged information, I could be sued," he said. "The argument isn't with me, it's between the priests who own the files and the plaintiffs and the judges."

In sum, to make the Archdiocesan records public violates the free exercise clause of the First Amendment, the priest-penitent privilege, the formation privilege, the California Evidence Code, Grand Jury confidentiality requirements, the priest-bishop bond, and the priest's property rights. And the employees of Archdiocesan insurance companies have full access. Clear, I hope?

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