Duluth Diocese Papers Won’t Be Released

By Tom Olsen
Duluth News Tribune
September 29, 2014

http://www.duluthnewstribune.com/content/judge-duluth-diocese-papers-wont-be-released

Internal church documents and deposition testimony in two ongoing sex abuse lawsuits against the Diocese of Duluth can remain confidential, a judge ruled recently before recusing himself from hearing the cases.

Sixth Judicial District Judge David Johnson last week granted the diocese’s motion for a protective order on evidence and pretrial testimony, acknowledging that there is significant public interest in the cases, but citing the need to protect the jury pool.

The order will allow any party to designate any document as confidential if it includes sensitive information, such as the names of sex abuse victims or details about the church’s handling of abuse allegations and clergy personnel matters.

“The court is not naive in thinking that blocking public access to this information will somehow insulate the public from the general issues involved,” the judge wrote, “but it will protect the parties from unfettered public access to documents and testimony pertaining to victims and local churches and church officials prior to the resolution of this case. Although there are no guarantees, a protective order is the best chance the court has to protect the jury pool from contamination.”

Despite presiding over the pretrial hearings and ruling on several motions, Johnson will not be the judge that ultimately hears the cases. Two days after he granted the protective order, the judge recused himself from the case, writing simply in an order: “Professional conflict has arisen with plaintiff’s counsel.”

Further details on Johnson’s recusal were not immediately available. Attorneys for both parties told the News Tribune on Monday that they were unaware of the order or any reason why the judge recused himself. Judge Theresa Neo has been assigned to hear the cases, the first of which is scheduled to go to trial in February.

Johnson heard oral arguments on the diocese’s motion for a protective order on Sept. 11. The diocese had asked for the order because the attorneys from the plaintiffs, St. Paul-based Jeff Anderson and Associates, has made a practice of publicly releasing church documents obtained through the discovery process in other cases.

In several cases in the Twin Cities and elsewhere around the country, the firm has released thousands of pages of documents that detail abuse allegations against accused priests and the responses of top church officials. In some cases, video depositions of top officials also have been released by the attorneys.

The plaintiffs’ attorneys and victims’ advocates argued that the release of sex abuse information is crucial to public safety and the prevention of sex abuse, but diocese attorneys claimed the practice of releasing discovery materials is simply a way to sway public opinion and inflame anger against the church.

Johnson’s order ensures that a mass release of documents will not occur in Duluth — at least for the time being. The judge left open the possibility of allowing the release of the documents once the cases have been resolved.

Johnson previously tossed out portions of the two lawsuits that claimed the diocese had created a public and private nuisance, leaving only negligence claims standing. The judge wrote that the dismissal of those claims lessens the need for the documents to be immediately released.

“This case is a claim of negligence, and it involves, currently, two priests who have since passed away,” he said. “The danger to children, in this case, is therefore minimal.”

Mike Finnegan, an attorney for the plaintiffs, said he respected the judge’s order but was disappointed that it means information about accused priests and the church will not be made public, at least for now.

“I think the judge recognized that, long-term, this stuff shouldn’t remain secret forever,” Finnegan said. “I would encourage the bishop and the diocese to release it now, rather than wait.”

Susan Gaertner, the Minneapolis attorney representing the diocese, said such a protective order is standard in a civil case. She said the diocese brought the motion in order to protect the privacy of litigants and the integrity of the legal process. But once the cases are resolved, she said, the diocese probably will be more open to publicly releasing the files.

“After the litigation, the question is going to be an entirely different one: What do we protect and what do we release?” she said. “At that point, the equation is going to be weighted more in favor of the release of documents.”

The discovery process between the parties already has begun, but attorneys said the exchange of information should now accelerate.