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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  • Posted by: fisherman129 - Dec. 11, 2006 10:52 AM ET USA

    What about the right to privacy..... In our day this right is steadily being eroded. Insurance companies want to see medical files - why? What about your files... would you be so quick to open them to insurance companies if it might mean you lose insurance because of a precondition - what about fetal predispositions to disease, etc. Should that be available thru prebirth screening.... the slippery slope.. and besides, lots of $ to be made from the Catholic Church... how much do lawyers get?

  • Posted by: Eleazar - Dec. 06, 2006 12:08 PM ET USA

    One wonders why some judge doesn’t order the sheriff to raid the Chancery and seize the records. The courts have consistently ruled that the documents must be surrendered. You can bet that if a private citizen refused to comply with these court orders, a squad of deputies would break down the door at 4 AM. The Cardinal isn’t the only one who is culpable here. Of course, if I were sheriff, I’d probably be afraid of what I found going on in the Chancery at that hour too.

  • Posted by: - Dec. 06, 2006 8:31 AM ET USA

    Sounds like the Prada Cardinal needs a refresher in Canon Law, as none of those arguments are based on it. Also, the insurance companies are paying for his "defenses." If he refuses to follow their legal strategems, then he cannot collect his insurance. [In California, all of the Dioceses belong to a co-operative insurance entity, thus San Diego had to contribute to the Santa Rosa misfeasance.] AMDG

  • Posted by: opraem - Dec. 06, 2006 7:41 AM ET USA

    roger's legal strategy is simple; stonewall, delay and deny until it blows over. the facts on paper will show him to be a negligent bureaucrat, and the movie 'deliver us from evil' shows him not to be a credible witness on the stand. if you were to substitute 'liturgical' abuse for 'clerical' abuse, the LA archdiocese would need another two world trade towers to hold all the files. roger needs our prayers but not our financial support.

  • Posted by: - Dec. 05, 2006 10:12 PM ET USA

    Somebody needs to write a big book with lots of footnotes about this, otherwise 10, 20 or 30 years down the road, everybody will have forgotten.

  • Posted by: - Dec. 05, 2006 9:13 PM ET USA

    The whole truth and nothing but the truth so help me God--those words will never come from his mouth --will they Cdl. M

  • Posted by: - Dec. 05, 2006 8:52 PM ET USA

    Anytime Mahony invokes "principle," you can be sure he's lying, again. The files will bring him down, and he'll spend any amount of the faithful's money to avoid their release.

  • Posted by: unum - Dec. 05, 2006 5:38 PM ET USA

    Oh, what a tangled web we weave, When first we practise to deceive! - Sir Walter Scott

  • Posted by: - Dec. 05, 2006 5:20 PM ET USA

    Governor Frank Keating to the American Bishops: "our Church is a Faith institution. A home to Christ's people. It is not a criminal enterprise. It does not condone and cover up criminal activity. It does not follow a code of silence. My remarks, which some bishops found offensive, were deadly accurate. I make no apology. To resist grand jury subpoenas, to suppress the names of offending clerics, to deny, to obfuscate, to explain away; that is the model of a criminal organization, not my church."

  • Posted by: - Dec. 05, 2006 5:08 PM ET USA

    What a nauseating display. Lord have mercy and give this man the hook.

  • Posted by: Quadratus - Dec. 05, 2006 2:41 PM ET USA

    It is a scandal that the pope allows a man like Cardinal Mahony to remain a Catholic Bishop and Cardinal.