Lexington Diocese Appeals Ruling
Church wants to keep portion of sex-abuse lawsuit sealed

By Peter Smith psmith@courier-journal.com
Louisville Courier-Journal
August 17, 2002

Frankfort KY - The Diocese of Lexington is asking the Kentucky Supreme Court to overturn two lower court rulings and seal portions of a lawsuit that accuse five Catholic priests of "disturbing and distressing'' sexual misconduct.

Diocesan lawyer John Famularo said church officials are not trying to keep secret the identities of the priests accused of sexually abusing the five people bringing the lawsuit.

In fact, those identities were made public last week after a Court of Appeals ruling in the case.

But Famularo said the public should not have access to part of the lawsuit that a Fayette Circuit Court judge has ruled irrelevant - allegations of noncriminal sexual misconduct by other priests.

The plaintiffs' lawyer, Robert Treadway, included those claims to bolster his argument that the diocese failed to discipline predatory priests.

"We have contended all along that the underlying lawsuit can and should be open,'' Famularo said. "What we opposed from the very beginning was the inclusion of material that the court said had no relevancy and should never have been placed in the complaint."

The Kentucky Court of Appeals ruled 2-1 on Aug. 9 that the entire lawsuit should be open to public view, upholding a ruling by Fayette Circuit Judge Mary Noble. However, it kept the disputed portion of the case under seal, pending appeal.

Supreme Court Chief Justice Joseph E. Lambert issued a brief ruling late yesterday that will keep the disputed portions of the lawsuit sealed for another 10 days, until the full court can review the case.

Jon Fleischaker, an attorney for The Courier-Journal, which - along with The Herald-Leader of Lexington - has sought to keep the file open, said he was disappointed the diocese decided to appeal.

"It just keeps this issue alive and gives more public interest to what they're trying to keep secret,'' he said. "We think the trial court was right and the Court of Appeals was right and that the Supreme Court will affirm those decisions."

In the lawsuit filed May 30, each of Treadway's clients accuses a different priest of abusing them in the 1960s or 1970s.

The suit originally withheld the identities of the plaintiffs and the priests, but it was later amended to include not only specifics of those cases but also a variety of alleged sordid behavior by other priests.

According to the Court of Appeals, that portion of the suit includes a "disturbing and distressing'' set of allegations that "do not involve child sexual abuse or any actual criminal behavior but rather involve violations of sexual morals unacceptable to the church or violations of celibacy required of Catholic priests."

Noble struck those allegations as irrelevant but ruled they should remain part of the court record.

In its ruling, the Court of Appeals said the entire case file was in the public interest and the church is a "large and significant institution . . . with the resources and experience to protect itself from a libel."

Famularo said he would base his appeal on arguments made by appellate Judge William Knopf, who dissented from the majority ruling. Knopf said the court was applying a "double standard'' between large institutions and private citizens.

"It basically set up a standard that if you're powerful and wealthy, that's one standard, if you're poor and small, that's another standard,'' Famularo said.

Two of the priests accused in the lawsuit have previous criminal convictions: Leonard Nienaber, accused by James Mahan of Los Angeles; and Earl Bierman, accused by William Lalley of Lexington.

A third plaintiff, Kay Montgomery of Lexington, accuses a "Father Ed Fritsch'' of abuse. Two other plaintiffs, Edwin Gonzalez and Samuel Lee Edwards Graywolf, accused priests whose complete names they could not recall, according to the suit.

All but Gonzalez said they were minors at the times of the alleged assaults.

Staff writers Tom Loftus and Al Cross contributed to this story.

A lawyer for the diocese said the public should not have access to part of the lawsuit that a judge has ruled irrelevant.