Judge Hears Arguments on Duluth Diocese Priest Sex Abuse Documents

By Tom Olsen
Duluth News Tribune
January 23, 2014

http://www.duluthnewstribune.com/event/article/id/289412/group/News/


Attorneys representing the Diocese of Duluth and plaintiffs seeking the release of thousands of documents detailing priest sexual abuse cases made their arguments Wednesday before a Duluth judge, who will determine whether the request will be allowed.

The case before 6th Judicial District Judge David Johnson at the St. Louis County Courthouse was over a motion filed last month by the diocese seeking dismissal of the suits’ most substantial claims.

Susan Gaertner, a Minneapolis attorney representing the diocese, told Johnson that the suits’ private and public nuisance claims are not valid and said the statute of limitations has passed anyway. She said the plaintiffs cannot bring public nuisance claims because they are not prosecutors and cannot bring private nuisance claims because they have not suffered harm that is different than that suffered by the general public.

“The action for a private nuisance goes against any precedent or logic,” she said. “A public nuisance is the purview of a prosecuting attorney to bring on behalf of the public.”

Attorney Mike Finnegan of St. Paul-based Jeff Anderson and Associates, a firm that specializes in clergy sex abuse cases, disputed both of Gaertner’s claims. He said the victims clearly suffered greater and different harm than the general public, and said the diocese has created a public nuisance by concealing information about its offending priests.

“The harm suffered by the plaintiffs is vastly different than that of anyone in the general public who wasn’t abused,” he said. “The diocese has continued through subsequent acts to conceal information and protect priests from criminal prosecution.”

Both cases were filed last year under a new Minnesota law that extends the statute of limitations allowing for victims to sue. Michael DeRoche, known in court documents as Doe 5, filed his suit in June. The other victim, known as Doe 28, filed his suit in December.

Both alleged victims say they were abused by Diocese of Duluth priests in the 1970s. In addition to monetary damages, the suits seek all documents related to sex abuse cases in the diocese.

The diocese on Dec. 31 voluntarily released the names of 17 of its priests who it determined to be “credibly accused” of sex abuse, but stopped short of releasing the complete files.

Johnson at one point in the hearing asked Finnegan if the release of those names affected the demands of the suits. Finnegan said it did not.

“They released the names, but we’re also requesting complete documents,” Finnegan said. “Those documents will reveal what each bishop knew, when they knew it and what they did in response.”

Gaertner rejected Finnegan’s answer to the judge’s question, saying the diocese’s release has a significant impact on the case.

“If this nuisance claim was really about what it purported to be from the beginning — who these priests are, where they served, if they’re still alive — this would be settled,” she said.

Gaertner said the two deceased priests accused in the suits — John Nicholson and Robert Klein — were subjects of public court proceedings, and much information already is known about them. She questioned why the diocese would need to publicly release documents on the other accused priests.

“There’s no question that Robert Klein and John Nicholson were accused of sex abuse of minors,” she said. “But what does that have to do with the rest of the list? What does that have to do with any other accused priest? It defies common sense, your honor.”

Finnegan, in response, said the suits detail the need for the diocese to release complete files. He criticized Gaertner’s “passionate” comments to the judge, saying her argument was more appropriate for a trial than a motion hearing.

“It’s far beyond anything we have before you today, your honor,” he said.

The judge briefly met with the attorneys in his chambers after the hearing to discuss a timeline for the cases. Finnegan said afterward that he expected the judge to rule within 30 days on the diocese’s dismissal motion.

The diocese has not sought dismissal of three negligence claims in each suit. Finnegan said that the plaintiffs will continue to seek damages through those claims even if Johnson dismissed the negligence claims.