Lawyer's Deal with Archdiocese Arouses Skepticism

By Madeleine Baran
Minnesota Public Radio
October 20, 2014

http://www.mprnews.org/story/2014/10/20/anderson-archdiocese-deal?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+MPR_NewsFeatures+(News+%26+Features+from+Minnesota+Public+Radio)

In a packed room at the Landmark Center in St. Paul last Monday, one of the nation's most aggressive critics of the Catholic Church's handling of clergy sex abuse did something that stunned many abuse survivors and parishioners.

Attorney Jeff Anderson had called a news conference to announce a settlement in one of the abuse cases. At that news conference, he shook hands with officials from the Archdiocese of St. Paul and Minneapolis — the same organization he'd accused of engaging in a criminal conspiracy to obstruct justice and protect priests who had raped children.

Anderson then did something even more startling. He invited anyone who had been sexually assaulted by a priest to line up to shake hands with the same church officials. While some people broke down sobbing and stayed in their seats, about 25 older men came forward.

"Keep coming. Wow!" Anderson said, nudging the men closer to Auxiliary Bishop Andrew Cozzens and Vicar General Charles Lachowitzer.

"As they join hands, they join in honor of the sorrow, acknowledgment of the pain, to work in cooperation and collaboration, restorative justice, reconciliation," Anderson told the crowd, while his law firm broadcast the event live on its website via satellite. "As they join hands, this is about truth. And this is about a new day. This is about a new way. This is about a safer day."

Next, with a solemn tone, Anderson touted a three-page list of what he called historic "child protection protocols" agreed to by the Twin Cities archdiocese and the Winona diocese. He said the agreement "protects kids in the future." Most of the protocols were not new, but Anderson did not mention that. Nor did he acknowledge that no plan existed to enforce them.

Lachowitzer, who became vicar general last November, said he welcomed Anderson's cooperation. "The true voice of the church is not spoken when we are on opposing sides and are adversaries," he said.

Although Anderson described the settlement as a victory for survivors, in many ways the archdiocese had the upper hand. It could file for bankruptcy and halt the entire process without warning.

"I want to say thank you to Jeff Anderson and Associates," said Cozzens. "Thank you for being willing to put aside old pain and go forward to serve a better future. Thank you for believing that a new day is possible. I know that wasn't easy."

Anderson nodded.

Cozzens continued. "And thank you for working with us for a common goal, which is to provide a safer future and healing for the past."

The spectacle immediately relieved public pressure on the archdiocese. Within 24 hours, the Star Tribune and the St. Paul Pioneer Press had written editorials cautiously praising the effort as a first step toward "healing," though the Star Tribune repeated its call for Archbishop John Nienstedt's resignation.

The media event at the Landmark Center glossed over several factors that might have altered the public's perception of Anderson's deal with the archdiocese. Other lawyers and abuse survivors — including some present in the room that day — regarded the agreement with deep skepticism. Anderson's firm had signed a secret agreement on behalf of his clients without consulting most of them. Twelve of the 17 so-called child protection protocols were simple restatements of longstanding church policy.

And although Anderson would insist otherwise, his public reconciliation with the church appeared to compromise the adversarial nature of his relationship with the archdiocese. Anderson has committed himself to serving as a "compliance officer" for the archdiocese, a role outside the usual scope of a plaintiffs' attorney.

"A slippage of credibility"

It was a remarkable turn for Anderson, who had devoted three decades to exposing the Catholic Church's cover-up of clergy sexual abuse — and who had warned the public in every previous clergy sex abuse scandal not to trust the archdiocese's claims of new policies or tougher procedures. No one has been as relentless or aggressive on the issue in Minnesota. Now, at a moment of tremendous pressure on the archdiocese — brought about by revelations from a church whistleblower, criminal investigations, dozens of lawsuits, and a year of investigations by MPR News and other organizations — Anderson appeared to back down.

Some of Anderson's actions can be explained as part of a legal strategy to reduce the risk of the archdiocese filing for bankruptcy or to win bigger settlements for his clients. Anderson faced the prospect of a grueling bankruptcy fight that could have left his clients waiting years for settlements. Any threat of bankruptcy would provide tremendous leverage for the archdiocese at negotiations.

"This is not surprising, sometimes, when you see negotiations," said Charles Reid, a law professor at the University of St. Thomas. "What you get in negotiations is statements of strength to the public. You're building a public position that you're willing to compromise privately."

But other decisions by Anderson — to portray old policies as new and to orchestrate a public reconciliation in the middle of a criminal investigation — aren't as easily explained.

Three months ago, Anderson declared that Nienstedt "and the other top officials that made the conscious choices they did should go to jail for their participation in these crimes and aiding and abetting them. I believe that until a top hierarch such as Nienstedt hears that jail door clang behind them, they'll continue to do in the future what they've done in the past, that is conceal, deceive and cover up."

Anderson's sudden reconciliation with the archdiocese undercuts his criticism of Ramsey County Attorney John Choi as failing to aggressively pursue top church officials for their role in the cover-up. The protocols do not require the archdiocese to turn over its files to police.

"What was he criticizing John Choi for? For not bringing criminal prosecutions," Reid said. "Now he's doing business with someone he (wanted) to be criminally prosecuted. There is a slippage of credibility there."

Regardless of Anderson's motivations, many clergy sex abuse survivors in Minnesota said they are deeply hurt by the sudden shift. Several declined to comment publicly because, they said, they felt conflicted about criticizing a man they have long considered a hero — or because he is still representing them.

They note that Anderson took on clients at a time when clergy sex abuse was barely known to the public and chances of legal success appeared slim. He continued to fight despite a court decision that made it almost impossible to win cases in Minnesota. He listened when no one else would.

Now they worry that other kids may be put at risk by false promises of a "new day."

Bob Schwiderski, who runs a support group for abuse survivors in the Twin Cities and has known Anderson for more than 20 years, said he left the news conference feeling "downtrodden" and angry.

"I thought it was a dog and pony (show)," he said. "There's a lot of survivors that are totally confused right now. What's happened to my individual need for healing and recovery and justice?"

Doug Devorak, who said he was sexually abused in the 1960s by nuns at a Catholic school in Madison, Minn., called the news conference "grandstanding."

Devorak said it was offensive to see Anderson and church officials talk about how the agreement would provide healing. For Devorak, healing means "justice, knowing that other people are not going to be subject to these beasts."

He doesn't think the agreement reached by Anderson will bring justice.

Former archdiocesan chancellor Jennifer Haselberger, who came forward to MPR News last year to disclose details of an ongoing cover-up of child sexual abuse, was also skeptical. "This isn't the first time that we've been here to hear the church announce new protocols for child protection," she said after the news conference. "We wouldn't be here now if they had followed the ones that they committed themselves to 12 years ago."

Anderson later told MPR News he understands that some people might be angry with him.

He added, "I can't say that I have absolute certainty that it's a new way."

An effort to avoid bankruptcy

Behind-the-scenes legal maneuvering over the past year helps explain some of what happened last week.

In May 2013, Minnesota passed a law that gave adults who had been sexually abused as children until May 2016 to file lawsuits for older claims. The new law provided an opportunity for abuse survivors to seek payment for therapy, psychological trauma and other damages. It also created a delicate situation for Anderson, who represents most of the clergy abuse plaintiffs in Minnesota.

A wave of punishing verdicts against the archdiocese would likely push it into bankruptcy, leaving Anderson's clients waiting years to receive an unknown amount of money approved by a federal judge.

Anderson and his colleague Mike Finnegan have seen up close the damage done by protracted bankruptcy proceedings in the Archdiocese of Milwaukee, where their firm has devoted significant financial resources to representing hundreds of abuse survivors.

More than three years after the Milwaukee archdiocese filed for bankruptcy protection, none of Anderson's clients have received settlements. The archdiocese has racked up at least $17 million in legal fees, while offering less than $4 million to 128 of the 575 people who brought claims for child sexual abuse, according to the National Catholic Reporter. Under the archdiocese's proposal, most claimants would not receive any money.

"In Milwaukee, people have died, people are committing suicide, and people are completely beaten down in that process," Finnegan said.

Adding to the concern is the revelation from Haselberger, the former chancellor, that the Twin Cities archdiocese held a meeting in early 2013 with bankruptcy lawyers who represented the Milwaukee archdiocese.

Anderson's agreement with the Twin Cities archdiocese "reduces the chances of us ending up in a Milwaukee situation, where it's a bankruptcy process that's cutthroat, contentious, and is completely geared toward beating up survivors," Finnegan said. "That's the last thing we want to have happen again."

Still, the deal announced in the Twin Cities hasn't taken bankruptcy off the table entirely.

"It sure would be one of the options," Lachowitzer, the vicar general, said at the news conference last week. "But we have to look at it in terms of what is best for resolution and restitution so that it's most fair, and I think Jeff Anderson and Associates have represented very well the people with whom they work, and we will learn from that so that we can evaluate our options."

Anderson added, "We are going to slow down the litigation process and engage in the mediation process, the settlement process, to work to that end, and they have committed to that."

Anderson also must consider the possible results of taking cases to trial. For example, insurers might refuse to pay if a trial proved that the archdiocese engaged in an intentional cover-up. Without insurance, abuse survivors might receive far less money, in part because lawyers for the archdiocese have worked since the early 1990s to shield its assets from lawsuits.

In February 2014, Thomas Mertens, the archdiocese's chief financial officer, announced that the archdiocese had set aside at least $5 million to cover expenses related to clergy sex abuse cases. In a summary of the archdiocese's 2013 financial audit, he wrote, "Losses from unknown claims could be substantial. We will tender the defense of these claims to our insurers whenever possible. However, claims can go back to a time period in which insurance may not have been available or coverage limits were minimal."

Because of these dynamics, attorneys for abuse survivors and the church sometimes find themselves on one side, with insurers on the other.

This was the complicated landscape that Anderson entered into last year, when he sued the Twin Cities archdiocese and the Winona diocese on behalf of an unnamed man, referred to as Doe 1, who said he had been abused by the Rev. Thomas Adamson in the 1970s. The lawsuit accused the dioceses of negligence and of creating a public nuisance by keeping information on abusive priests secret.

The landmark case led to the court-ordered release of the names of priests deemed "credibly accused" of child sexual abuse in the Twin Cities archdiocese and the Winona diocese. It forced Nienstedt to testify under oath and turn over thousands of documents from the files of 103 priests in preparation for trial. The court sealed many of the documents at the request of church lawyers, who argued that only some of the priests had been "credibly accused." Meanwhile, employees at Anderson's firm have spent months working long hours to redact the non-sealed documents and release them to the public.

Given the legal landscape, many outside attorneys and clergy abuse experts said they weren't surprised that Anderson settled the public nuisance lawsuit last week. They are surprised, however, by how far Anderson went to praise the archdiocese.

"I can see settling," said Reid, the law professor. "But why is he so congenial about it?"

"Agreement behind the agreement"

Many remain puzzled by the terms of the agreement.

At the news conference last week, Anderson announced the settlement of Doe 1's case and an agreement with the Twin Cities archdiocese and the Winona diocese on 17 "child protection protocols." He said he negotiated the protocols as part of the Doe 1 settlement.

However, behind the scenes, a more complex negotiation had taken place. Finnegan explained that the law firm had forged a total of three separate agreements with the Twin Cities archdiocese and the Winona diocese — a confidential settlement for Doe 1; the child protection protocols released to the public; and a third, previously unknown, confidential document.

In a separate interview, Anderson called the third document "the agreement behind the agreement."

That agreement was signed by the Anderson law firm on behalf of all of the firm's current clergy abuse clients in Minnesota, Finnegan said. It specified that the Twin Cities archdiocese and the Winona diocese would follow the three-page list of 17 child protection protocols, but it did not include any oversight or penalties for noncompliance, he said.

Finnegan declined to provide a copy of the "agreement behind the agreement" because one of its clauses requires that it remain confidential, he said.

Anderson's law firm did not consult its clients on the child protection protocols or show them a copy until after the deal was signed, other than Doe 1, Finnegan said, "because this is just a start."

He added, "The reality is most people, they don't know. They don't have a specific thing that they say, 'This is what is should be,' and if they do have anything specific, that's something that we're still working on, and this is not the end of it."

Anderson and Finnegan said that any client could sue for breach of contract if the Twin Cities archdiocese or Winona diocese fails to follow the protocols. They also said they would take cases to trial if the protocols aren't followed. Two cases are scheduled for trial in late January.

"This agreement doesn't take away any of their rights," Finnegan said. "If (church officials) don't follow through with this, with any of this, we still have the ability, on behalf of any of the other survivors, to bring their case, go after them with the nuisance claim, and fight as aggressively as we have in the past."

Finnegan also revealed new details about Doe 1's settlement. He said it does not refer to the child protection protocols.

Instead, it includes an agreement for how to resolve disputes over documents that remain under seal. An unnamed special master, hired by Anderson's law firm, the Twin Cities archdiocese and the Winona diocese, will decide which documents can be disclosed to the public by Dec. 31. No one will be able to appeal the decisions, Finnegan said.

In a written statement, archdiocesan civil chancellor Joseph Kueppers declined to describe the process for unsealing files, but said, "The Archdiocese of Saint Paul and Minneapolis and Jeff Anderson and Associates are going to work collaboratively on this process."

Anderson said the agreement on the sealed files was a major part of the negotiations. A trial could have concluded with no agreement on whether the files should be unsealed, he said, and it would be nearly impossible to persuade a court to unseal documents after the case was resolved. He also said that the archdiocese hadn't finished turning over emails and other electronic documents.

"There's so much data and there are so many files that I still have another 50,000 pages of files to vet, and all of that would've come to a halt if we had proceeded with this trial," Anderson said.

The law firm still needs to resolve dozens of pending clergy sex abuse lawsuits against the archdiocese and other Minnesota dioceses. Adults who have been sexually abused as children still have 19 months left to file claims under the three-year window.

Anderson vows to serve as a "compliance officer"

Anderson has taken on another role that appears unrelated to any litigation. He sees himself as the person who will hold the church accountable and make sure that it no longer conceals sex crimes.

At the news conference, he characterized the settlement negotiations as a near-religious experience, even going so far as to thank an attorney for "reaching out with authenticity...to help this process begin and begin the process of building trust."

He urged "every bishop, every archbishop, every religious superior of every order across this country, to buy into this...because you want the same things that we and the survivors want. We want the truth and the children to be protected. And so this is an open invitation. Give us a call. We'll work with you."

In an interview with MPR News after the news conference, he referred to his law firm as the archdiocese's "compliance officers" and said he will be at fault if more kids are abused or if survivors are betrayed. He said he was not on retainer or receiving any other kind of payment from the archdiocese or its insurers for performing this role.

"I spent 30 years figuring out how they operate, and if information is withheld, there's a way to discern that there's gaps in files and there's a way to discern that information is being withheld," Anderson said.

Anderson told MPR News he doesn't think his reconciliation with the archdiocese makes him a less credible critic of law enforcement. And he said he stands by his statements that Nienstedt "has been complicit in crimes." He has previously said that he thinks Nienstedt lied under oath.

And yet, he said he sees no contradiction in declaring a "new day" for an archdiocese whose leader he thinks should be in prison.

"I have to work with some amount of serenity," he said. "There's some things I can control and some things I can't, and I have to know the difference."

When asked why he would invite abuse survivors to shake hands with officials from an organization he has accused of engaging in a criminal conspiracy, Anderson said, "I wanted to give them the power to make a choice to do that."

He said the handshaking was his idea, adding, "The hands were with the vicar general Lachowitzer and (Auxiliary Bishop) Andrew Cozzens, neither of whom are vividly on our radar as having been a part of the past practices."

"Historic" agreement mostly not new

Despite Anderson's characterization of the "child protection protocols" as historic, most of them have been in place more than 20 years and have done little to prevent church officials from continuing to cover up sex crimes.

Most of the protocols are already part of the archdiocese's current policies or practices. For example, the archdiocese already has a policy of allowing victims to bring an advocate with them when meeting with church officials and already prohibits priests from taking overnight trips alone with children outside the priest's extended family. It has also already pledged to release the names of priests with "substantiated claims" of sexual abuse, as defined by the archbishop.

The archdiocese has had policies in place since at least 1986 that require it to report sex crimes to police, keep abusers away from children and provide help to survivors. Bishops have routinely violated those policies.

Such policies have been a standard part of the archdiocese's public response to accusations of a cover-up. Every time another clergy abuse cover-up surfaced — typically because of a lawsuit or media report — the archdiocese announced a new or revised policy, issued an apology and vowed to meet with those who had been abused. Since 1986, the archdiocese has adopted at least six policies on clergy sex abuse, not including the agreement reached last week.

In the past, Anderson has pushed back against the introduction of so-called historic policies, arguing that policies can mislead the public into thinking the church has changed.

"It is very frightening if this is the model," Anderson told a reporter in 1996, speaking about one such abuse policy. "If others are following this lead, every child across the country in the entire community of the faithful had had their lives gambled with."

Two years later, Anderson denounced another archdiocesan abuse policy as an effort to deflect attention from the cover-up. "My reaction is, it's all words," he said.

Last week, Anderson not only praised the archdiocese's policies — he promoted them.

"One of the major points is no longer internal handling," he said at the news conference. "Let's get the best law enforcement talent and a team of outside law enforcement talent engaged in fully investigating and having access to all the information...so that there's full transparency and law enforcement people have access to that."

In an interview with MPR News last week, Anderson said he considered investigators hired by Nienstedt to be independent. Earlier this year, he had said just the opposite. Anderson now says that the latest ex-law enforcement official hired by the archdiocese — Tim O'Malley, former superintendent of the state Bureau of Criminal Apprehension — will have access to information that wasn't available to a previous investigator.

He said he trusts the process because "I've got a pledge from the archbishop directly to us to turn all the files and all aspects of all files over to O'Malley...and no secrets."

Meanwhile, the archdiocese has not turned over all of its files to police.

"Making nice"

Some of Anderson's supporters said the agreement could prove significant down the road, if the archdiocese violates it.

It's rare for attorneys to negotiate lengthy non-monetary agreements as part of clergy sex abuse litigation. In one such agreement, in the Diocese of Kansas City-St. Joseph, Mo., the diocese agreed to more specific terms than those included in the Twin Cities deal. The survivors later sued the Kansas City diocese for breach of contract and won a $1.1 million verdict.

Several leading national clergy sex abuse attorneys said the best approach in abuse lawsuits is one that keeps the best interests of each client at the forefront while aggressively pursuing facts that can provide leverage in negotiations.

"It's not a one size fits all, and it's certainly not like a public advocate bringing a case for transparency," said attorney Stephen Rubino, who has handled clergy abuse cases in the Diocese of San Diego and elsewhere since the 1980s.

Rubino declined to comment on the Minnesota lawsuits but said he's wary of any claims of reform by Catholic dioceses.

Attorney Patrick Noaker, a Minneapolis-based attorney with the second-largest number of clergy abuse clients, declined to comment on Anderson's approach.

Privately with clients, however, he slammed the deal.

In an email obtained by MPR News, sent to his clients the morning after Anderson's news conference, Noaker wrote, "The first concern with the Archdiocese's 17 reforms is that they completely forget survivors like you. The Archdiocese is doing everything in its power to change the public discussion away from focusing on those who have been deeply injured by abusive clergy."

Noaker, who used to work for Anderson, noted that past promises of reform by church officials "have ultimately proven insincere."

He continued, "As much as we want these 17 reforms to provide meaningful and lasting change to the way that sexual abuse allegations are handled, we would be irresponsible if we stopped aggressively pursuing your case because of these promises. We believe that the Archdiocese is hoping for just that. When Vicar General Fr. Charles Lachowitzer said 'it is good to be on the same side' at yesterday's news conference, he is not referring to me, Sandy, Lee or Craig. We believe that to be successful with your case and to be successful in meaningful reform, we must remain skilled, aggressive and adversarial.

"We have not gotten to this point by making nice."

Away from the television cameras, the archdiocese continued its aggressive approach.

In Ramsey County District Court, three days after the news conference, archdiocese attorney Tom Wieser argued that the court should limit the depositions of several priests in a lawsuit brought by a man, identified in court as John Doe 104, who said he was sexually abused as a child by the Rev. Thomas Stitts, a priest who died in 1985.

Wieser sided with an attorney representing the priests, who claimed that the priests' conversations with Stitts should be mostly off-limits because they took place as part of a confession or similar arrangement.

After the hearing, John Doe 104, who is represented by Noaker, said he thinks the archdiocese needs to be held accountable in court, instead of being applauded for agreeing to policies it has ignored in the past.

"I'm not here for a handshake," the man said. "I want answers. I want the truth."