Judge Won't Drop Gag Order in Delbarton Sex Abuse Settlement, but Allows Case to Continue

By Ben Horowitz
The Star-Ledger
June 5, 2013

http://www.nj.com/morris/index.ssf/2013/06/judge_refuses_to_drop_gag_orde.html

Attorney Gregory Gianforcaro, who represents "John Doe" in the Delbarton case, speaks outside the Morris County Courthouse last June. Gianforcaro is seeking to remove a gag order so that his client may speak about being sexually abused by a priest at the school in the 1980s.

MORRISTOWN — A Superior Court judge refused to lift a gag order today against a man known as "John Doe" who obtained a confidential settlement in 1988 after allegedly being sexually abused by a priest at the Delbarton School and now wants to talk about it publicly.

But the man, now in his 40s and living in California, may still get his day in court.

In a two-part ruling, Judge Stephan Hansbury said neither side had proven its case and he also refused Delbarton’s request to dismiss the lawsuit.

Saying he needs more information on why the man "wants to reveal this information," Hansbury said he may hold a hearing where John Doe would testify about his motives.

"If he just wants to write a book," Hansbury said, he would be unlikely to remove the gag order. But if the ruling would allow the man the "cathartic experience" of "counseling," then he might rule in his favor, Hansbury said.

If there is such a hearing, it would likely be held behind closed doors to maintain confidentiality, Hansbury said.

The unidentified victim was not in the courtroom today. The judge told attorneys for both sides to submit more information and to return for a conference in a week.

"This is a serious, serious issue," Hansbury said, referring to the problems of both child sexual abuse and confidentiality.

A ruling throwing out the confidentiality agreement could affect other cases, he pointed out, noting that such agreements are routine in lawsuit settlements.

Attorney Gregory Gianforcaro, who represents "John Doe" along with six other men who are suing the Morris Township prep school over alleged abuse, argued that the confidentiality agreement should be lifted because of a 2002 policy adopted by Delbarton that promised "openness and transparency" in clergy abuse cases.

"There are statements (John Doe) wants to make," Gianforcaro said. "For 25 years, he has been silent."

He added that as a school, Delbarton is obligated to "educate the public and to protect its students."

"It is against public policy for an institution that cares for children to settle a case and be silent about it," Gianforcaro said.

But Hansbury was not convinced of that argument, either. He acknowledged that the 2002 policy "changed the way they do business," but asked, "Where does it say in there that we intend to open up any case from before 2002? It doesn’t … How does opening up 1988 help anybody in 2013?"

Attorney Charles Carella, representing Delbarton, said John Doe’s lawsuit should be dismissed because "this isn’t a clergy abuse case, it’s about a settlement agreement from 1988. It’s a contract case."

"That agreement was enforceable in 1988 and remains enforceable today," Carella said.

Carella also pointed out that John Doe waited until 2012 to sue over the confidentiality agreement and said that under the statute of limitations, the man should have initiated litigation within six years of 1988.

But Hansbury rejected that argument as well, saying that if Delbarton wants to enforce a statute of limitations, John Doe has a legal right to challenge it.

Anthony Cicatiello, a spokesman for Delbarton, issued a statement later saying, "We understand the decision of the court and we are prepared to bring this case to trial. We are confident of the facts and are resolved to see this case through to its conclusion."

Gianforcaro, John Doe’s attorney, said he was encouraged by the decision.

"Once (the judge) has the evidence on both sides, he absolutely will issue a ruling in our favor," Gianforcaro predicted.

Earlier, Hansbury had refused Gianforcaro’s request to recuse himself because he is also presiding in a separate case in which Delbarton is suing Gianforcaro for allegedly violating terms of the confidentiality agreement. In April, Hansbury rejected Gianforcaro’s motion to dismiss that case.

Delbarton sued Gianforcaro after he said at a news conference last June, reported by The Star-Ledger, that John Doe had obtained a seven-figure settlement in the 1988 case.

Carella said in court today that Gianforcaro recently described the settlement as "approximately seven figures."

"It's a distinction without a difference," Carella said.