The Weekly Seeks Full Disclosure of Documents in the Case of Father Edward Fitz-henry
Monterey County Weekly
On Sept. 10, the Monterey County Weekly sought to lift the veil of secrecy imposed on a civil suit filed against the Diocese of Monterey; Richard Garcia, the Roman Catholic Bishop of Monterey; and Father Edward Fitz-Henry, a Catholic priest and then-pastor of the Mission San Juan Bautista Church. Fitz-Henry, a native of Dublin, Ireland who in previous years had been pastor at Madonna del Sasso Church in Salinas and the Carmel Mission in Carmel, found himself on the receiving end of a claim filed by a pair of attorneys who specialize in suing the Catholic Church and priests accused of molestation – and who have won numerous multi-million dollar awards on behalf of their clients. The allegations in the Fitz-Henry suit, filed in Monterey County Superior Court in 2011, were about as unseemly as they come. The alleged victim, who filed under the name John RJ Doe, claimed that over the course of many months starting in 2005, Fitz-Henry engaged in sexual conduct with him at various locations throughout Madonna del Sasso – including oral sex in the church sacristy. Doe was 21 years old when attorneys Vince Finaldi and John Manly of the Irvine-based firm Manly, Stewart & Finaldi filed the suit; the timing puts Doe firmly in his mid-teens when the alleged conduct occurred. Fitz-Henry’s parishioners, as well as parishioners throughout the Monterey Diocese, found out he was suspended from the priesthood on Feb. 13, 2011, when it was announced during Sunday services. Salinas police investigated, but no charges were ever brought. To this date, Fitz-Henry has never been charged with or convicted of any crime. But the case took a turn that nobody – save for a pair of devout Catholics from Carmel and their now-grown children – could have seen coming. The Diocese hired former Salinas Police detective Don Cline to conduct an internal investigation; according to a press release the Diocese issued, Cline found there was no credible evidence in the Doe case. But there was credible evidence, based on a complaint made to the Diocese in 1990 by the Carmel family, that Fitz-Henry had molested a then-14-year-old boy (see letters, p. 18). The Monterey County Weekly is not naming that family because the paper does not identify victims of sexual assault. Fitz-Henry was sent to a retreat center for troubled priests, given counseling, and the Carmel family agreed not to press charges with the understanding that Fitz-Henry would never again be placed in an assignment where he would be around children. All of which brings us to the motion to intervene, filed by the Weekly’s First Amendment attorney, Roger Myers of the San Francisco office of Bryan Cave LLP, and argued during a Sept. 10 hearing before Monterey County Superior Court Judge Tom Wills, who has been the judge on the case since 2011. According to Myers, numerous cases involving allegations of clergy sexual abuse have led to the disclosure of documents, even as those cases were still being litigated or prosecuted, or even if civil suits were settled. According to Wills, though, there are two questions that need to be answered as it relates to the release of documents he ordered filed under seal, and to documents that were produced during discovery (like depositions) and never made a part of the official court record. First, Wills asked, is there a First Amendment right to access materials produced in discovery but never filed with the court? And second, if there is a media right of access to those documents, against what interests must those be balanced? “I think there is a right to privacy,” Wills said, “but it is a matter of whether it prevails… There’s the privacy of Father Fitz-Henry, who was involved in litigation as a defendant, and the right of privacy of any alleged victims of abuse against involuntary disclosure. It’s my impression that the Monterey County Weekly is not seeking to publicly identify any of the victims involuntarily based on the position they’ve taken in their documents.” As the civil suit against Fitz-Henry proceeded, Wills feared material obtained during discovery – documents related to Fitz-Henry’s counseling at a retreat center for troubled priests called Servants of the Paraclete in New Mexico; the alleged victim’s past; the priest’s deposition; and other records that might involve clergy-penitent privilege – could taint a jury pool if it was reported in the media. He was also concerned that the names of other alleged victims, including the Carmel family, might be revealed in the media. On June 17, 2011, Wills ordered that documents in the case were to be filed under court seal. “None of the records at issue shall be disseminated, nor their contents disclosed prior to trial or adjudication,” said Wills, according to a transcript of the 2011 hearing. “And I want to admonish everyone under California Rules of Professional Conduct… that there are limitations, especially when you have a court order about what can be disclosed publicly.” Without acknowledging any possible wrongdoing on its part or that of Fitz-Henry, the Diocese of Monterey settled Doe’s case for $500,000 in February 2012; Fitz-Henry then sued the Diocese, claiming it failed to protect him from false allegations. Last April, Fitz-Henry resigned from the priesthood and sought what’s called “laicization,” a process under which Vatican officials strip a priest of ordination and he reverts, in essence, to civilian life. Given the case ended in a settlement and the risk of tainting a jury no longer exists, the Weekly has sought full and legal access to all of the documents – those filed under seal per Wills’ order, the depositions given by Fitz-Henry and Don Cline, and any other depositions that may have taken place – in the case. The paper seeks to tell the full story of Edward Fitz-Henry, including what was discovered and reported during the Diocese’s investigation; any responses offered by the Diocese’s Independent Review Board (a team comprising church members that looks at personnel issues involving clergy); how the Diocese of Monterey dealt with a veteran priest accused of molestation; and how it handles victims of alleged sexual assault at the hands of clergy. If the investigation found Fitz-Henry did nothing wrong in the Doe case, that should be revealed. According to Fitz-Henry’s attorney, Dan De Vries, Fitz-Henry “has never been found guilty of anything, not found liable of anything. Why would the laws apply any differently to him just because he happened to be wearing a frock? These are mere allegations alone, without anything more.” The Weekly’s motion contends that, in balancing the competing interests, Fitz-Henry’s right to privacy is outweighed by the public interest in disclosure of information concerning allegations of sexual assault against minors and of a cover-up by the Diocese. Other courts around the country have found that the public’s interest warranted disclosure of information about sexual assault in the Catholic Church and a decades-long pattern of deception and cover-ups by the church when it comes to protecting their own. And the motion to intervene is one the Diocese of Monterey has fiercely opposed. Finaldi, Doe’s attorney, has said he’s willing to turn over the documents sought by the Weekly, but is currently prohibited from doing so. Diocese attorney Paul Gaspari protests that Finaldi told the court he would not disseminate documents to the media or any other third parties, and is now trying to do an end-run around Wills’ order. Finaldi, though, told Wills during the Sept. 10 hearing: “I would never agree to a protective order ad infinitum. I don’t disagree with them getting the documents. I just can’t give them to them because of the protective order.” The media, Gaspari said, would turn decades of California privacy law on its head if documents and records produced during discovery were suddenly made public. Gaspari argued during the Sept. 10 hearing that the only documents that should be disclosed are portions of the Fitz-Henry deposition already publicly available in the court file and excerpts from another report. He also argued that the Diocese of Monterey “has every bit a right to privacy to its files as any other citizens of the state. “Anything else produced in this case was never used… it’s garden-variety discovery, irrelevant and unnecessary stuff that litigators have a field day with,” Gaspari said. “None of that stuff was important enough to ever reach its way into the court files.” Wills says the risk of tainting a jury pool no longer exists because the case has been settled, a statement Gaspari disputes as Gov. Jerry Brown is currently considering a bill that would extend the statute of limitations on how long the victims of clergy abuse have to file suit. If Brown signs Senate Bill 131, which passed through the state Assembly and Senate on Sept. 6, documents revealed in the Fitz-Henry case could open the Diocese of Monterey to further lawsuits. “You’re now asking me to go back and re-litigate this case and I object to that,” Gaspari told Wills. The judge countered: “I’m not going to make a finding of culpability. My task is to look at the documents and see if there appears to be an overriding interest in disclosing versus the right to privacy.” Fitz-Henry wasn’t present for the Sept. 10 hearing; he has never appeared in court for any of the hearings related to the Doe case. And it was not immediately clear if Rome had approved his laicization; DeVries, as well as Gaspari and the judge, continued to refer to him during the Sept. 10 hearing as Father Fitz-Henry. Wills ordered Gaspari and DeVries to turn over upwards of 1,000 pages of documents to his clerk by Oct. 23. He will then review them to decide if there is a compelling reason to keep them under seal or to keep Finaldi from giving them to the Weekly. He said his intention is to issue a preliminary decision on Nov. 7, and hear arguments on that decision on Nov. 21. Gaspari and DeVries were adversaries in the initial Doe lawsuit against the church and Fitz-Henry, as the church settled with the plaintiff and found itself sued by an accused priest who says he was hung out to dry. But now the attorneys find themselves on the same side – battling to keep secret court records and discovery material that could either clear Fitz-Henry and the church of wrongdoing in the Doe case, or could show that, like the priests in the Milwaukee Archdiocese case, the Diocese of Monterey paid a wayward priest to go away and avoid further scandal. But without access to the documents sought by the Weekly, the truth might never be known.
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