Judge Duffly's Appeals Court Decision of March 20 on the Jan. 3 Decision of Judge Agostini
Judge Duffly affirmed the decisions of Judge Agostini. Maybe a simple "yep" or "nope" would have sufficed, but it took Judge Duffly 11 pages of prose to explain her decision, which is good for our purposes, because we're here to better understand the case.
Probably the great length of the paper is because she ruled on not only the Jan. 3 decision, but also on several other motions and counter-motions that the Jan. 3 ruling had unleashed from the parties. On the first page she notes that since both parties had appealed the Jan. 3 ruling, the appeals were consolidated, and each party filed an opposition to the others appeal.
The Diocese's motion to have the judge consider an impounded order (from previous court action on the "laicization" documents in 2004) was denied. This same motion just mentioned was opposed by the Claimants (victims) and that opposition was allowed by Duffly. The insurers' motion to strike certain portions of the Diocese's opposition was allowed. The Diocese's motion to stay discovery was denied.
As we have seen, the Jan. 3 decision upheld the right of the Diocese to withhold attorney-client documents and work product documents from the insurers. Here, Judge Duffly agrees, not only on the grounds of the Jan. 3 ruling (the duty to cooperate with the insurers did not trump the importance of the attorney-client relationship), but also because of "anticipatory breach". This legalism means that since the insurers had voluntarily breached their duty to the insured (by walking away from the claims for the 7.7 million settlement in 2004), that the corresponding duty of the Diocese to cooperate with the claim investigation by the insurers had also been dissolved. The Diocese had not actually asserted this defense, but Duffly noted that she was not precluded from affirming the decisions of the motion judge (Agostini) on "any available grounds", whether or not those grounds had been part of the original arguments.
As to the petition of the Diocese, Duffly divides this into three areas, plus "other matters". The three areas are 1. Claim of privilege, 2. Freedom of religion and 3. Church autonomy.
1. Claim of privilege: Duffly reaffirms that whether a document is subject to priest-penitent protection is a "factual question" which the motion judge is competent to decide. Since Agostini found that the documents in question either did not fall under the privilege, or were so vaguely described that their relevance could not be determined, his decision to view them "in camera" was proper and his subsequent decisions on their relevance entitled to deference.
She notes that the privilege hinges on the purpose for which the person issued the communication – it must be made for purposes of spiritual guidance or comfort. And while the Diocese had asserted that a balancing test as required in the Society of Jesus ruling was absent from Agostini's ruling, Duffly disagrees, saying that a balancing test was part of his decision and that specific citation to the Society of Jesus decision was not required.
2. Freedom of religion: Duffly wrote that the assertion of this privilege requires four parts: 1. A sincerely held religious belief which 2. Conflicts with, and is burdened by, a State requirement. The State prevails by showing that 3. The requirement is an unusually important government goal, because 4. An exemption would hinder the fulfillment of the goal.
Duffly found that the Diocese had not met the first requirement, because they "…did not demonstrate that complying with discovery would burden its religious beliefs at all…" Therefore, the argument went no further.
3. Church autonomy: here Duffly quotes from precedent (Society of Jesus of New England v. Commonwealth, 441 Mass., 668) in denying the claim: "The mere examination of the [Diocese's laicization] documents…does not infringe on the [Diocese's] autonomous decision-making with respect to [its priests'] fitness, discipline, assignments, or any other aspect of [their] relationship with the [Diocese]."
Other Matters: the Diocesan claim that, in order to decide the appeal before her, the Judge needs to consider an impounded order about the "laicization" documents is rejected. Duffly does this on the grounds that the Diocese did not cite any relevant authority to buttress its claim. She notes that even if she agreed to consider it, she would not have been bound by the conclusions of the Superior Court judge.
The Diocesan request for a proposed Protection Order was dismissed by Duffly because it was not properly filed. This maneuver of the Diocese was characterized by her as a "…collateral attack on the trial court's denial of it's motion…", since nothing about the proposed Protection Order was in the original Jan. 3 ruling, and since the Diocese had not filed an appeal of Judge Agostini's Feb. 13 denial (P.86) of the Jan. 24 Diocesan motion (P.82) requesting the proposed Protective Order. However, she noted, even if it were properly filed, she would deny it, for essentially the same reasons that it was denied by the motion judge.
Finally, the Claimants (victims) had filed late an opposition to the Diocesan effort to have the appeals judge consider the impounded order concerning the "laicization" documents. This opposition was accepted for filing.
March 20, 2007- Feb. 11, 2008
The March 20 ruling was important, and probably even decisive, because it spelled the end of the Diocesan effort to formally withhold papers. Nevertheless, the suit continued to drag on for another 15 months. But, now that the major battles were decided, the Claimants played a more important role, and the pace quickened. In retrospect, it's clear that most of the last six months of the suit were taken up with areas indirectly related to the merits of the case.
More motions for protective orders came up in this period, but they, too, were denied. The insurers sought one to help with rescheduling depositions of insurance company employees, and the Massachusetts State Police requested others, along with impoundments, to keep the lid on documents relating to the investigation of the death of Danny Croteau.
Also in this period, the long-lost insurance policies (the ones found during discovery around Nov. 14, 2007) resulted in the addition of two more insurance companies to the suit. This, too, resulted in motions and counter-motions. Ultimately, by Feb. 11, 2008, Judge Agostini appeared to have a handle on the situation. On that day, he issued a flurry of memorandums, decisions and orders. Some led to the coverage of the two additional companies dropping down to replace the MIIF (Massachusetts Insurance Insolvency Fund). Others led to the filing of redacted copies of the Croteau investigation in Hampden Superior Court. More importantly, the parties were entering mediation voluntarily.
Although in hindsight the suit may appear to have been solved by Feb. 11, 2008 we need to keep in mind that the parties were still locked in battle. For example, on April 30, 2008, after three months of failed mediation, the judge states in open court that if the voluntary mediation is not successful by May 23, he will either order a mediated agreement process, or begin trial preparation for November.
This must have been the straw that broke the camels back, because within weeks, it was all over.
On April 9, 2007, the Claimants (victims) try to speed things along by filing Paper 93, a motion for a status conference. In their response to this motion (P.93.A, my numbering), the insurers list some reasons for the slow pace of discovery. 1) the initial delay of the Diocese in producing documents, and 2) the protracted discovery dispute over the Diocese's subsequent document production.
The insurers said that without timely document production, they'd been unable to conduct depositions properly. Indeed, they claimed that since the Diocese's document production was still incomplete, they were still hampered. And, since most of the legal issues were fact-specific (including most of the issues raised by the Claimants), the documents had to be reviewed one by one. This slowed the pace even further.
The insurers did not feel that the time was right for a motion schedule, as requested by the Claimants. They suggested instead that the court hold a status conference to address out-of-state depositions, privilege assertions that might come up in connection with them, and ways to resolve those questions immediately.
This was apparently done, because Bishop Dupre (who was residing at St. Luke's Institute, a treatment center in Maryland for clergy with behavioral problems) and Bishop Maguire, among about a dozen other clergy, were deposed within the next few months. The depositions were apparently suspended for good in Feb. of 2008, when the mediation talks began.
On May 25, 2007, in Paper 101, the resistance of Lloyd's of London to traveling to the U.S. for a deposition is resolved by a court order directing them to appear in Springfield. The judge also denies a request by Travelers to allow a deposition of a company employee to be taken in New Jersey. The continued bickering over depositions earned a rebuke from the judge:
"A word of caution. It is my sense that discovery is becoming unnecessarily strident and devolving into petty squabbles, more typical of novice counsel. This must stop. If such distinguished counsel cannot conduct routine discovery, including the locations of depositions, without resorting to the court's intervention, this will be an expensive and painful journey for all of us. A second word of caution. The plaintiff has raised the issue of the substance of the 30(b)(6) depositions, claiming that the witnesses are providing very little information. Specifically, the Diocese asserts that at prior depositions, the witnesses 'had made no determinations on coverage because it had not received adequate information from [the plaintiff] to make that determination.' Parenthetically, it seems to defeat the purpose of such a deposition if a discussion on coverage is unavailable."
On August 27, 2007, the Claimants file Paper 111. This is a motion for an order requiring the parties to undergo mediation. It presents the victim's arguments for bringing the suit to a close. Among them:
1. The Claimants have agreed to stay their claims, based on the promises of the Diocese that it will resolve those claims as soon as the Diocesan suit against the insurers is settled.
2. Some of the Claimants whose cases are on hold have been waiting five years to resolve their claims against the Diocese.
3. While the Claimants wait, they see dioceses all across the country successfully resolve the sexual abuse claims against them.
4. While both parties say that they want a swift settlement in order to do justice to the victims, neither has made the first move. Instead, the litigation has wasted much time, millions of dollars in legal fees, and has prolonged the period of anxiety and uncertainty for the victims.
In view of all this, the Claimants then move that the Court order the parties to participate in mediation, in order to bring the suit to a close. Although the record doesn't show that P.111 was ever allowed by the judge, it's presence probably moved the parties closer to resolution. It may be this paper that the judge refers to on April 30, 2008, when he proposes ordering mediation in a few weeks, if it cannot be voluntarily agreed on before then.
Shortly thereafter, the insurers file a response (P.111.1, my numbering) in which they support the motion of the Claimants. However, they insist that the claims must be verified by written discovery. The insurers state that if the victims agree to written discovery, the suit could be ready for mediation in late fall or early winter. As part of the deal, the insurers agree they will not press for Claimant depositions before mediation (although they continue to insist on the right to compel discovery from clergy).
The insurers insist on 7 categories of written information for verifying claims of the victims: 1. Dates of abuse, 2. Location and general nature of the abuse, 3. When any individual other than the Claimant and the abusing cleric had knowledge of the abuse, 4. The identity of those individuals, 5. When the Claimant first informed the Diocese of the abuse, 6. Any other information that the Claimant has that the Diocese knew or should have known about that cleric's abuse, and 7. Any information bearing on Claimant's alleged damages.
The insurers assert that all Claimants should provide responses, reasoning that having asserted claims against the Diocese (which gave rise to the coverage litigation) the Claimants cannot shield themselves entirely from discovery.
The insurers say that the Diocese has "…recently asserted that it is entitled to recover the entire amount of its earlier settlement (of some $7.75 million) notwithstanding that almost $1.5 million of those settlement dollars were ultimately allocated to Claimants who alleged that they were abused outside the period of the Diocese's alleged insurance coverage (1968-1986), and seemingly without regard to whether the claims were subject to the Diocese's self-insured Loss Fund."
Feb. 11, 2008 - June 14, 2008 – The Resolution
So, by now, we've made a full circuit and learned about each of the court papers. PDF files of them are here, and summaries of their contents are found in Chapter One.
As I wrote earlier there was little happening in court papers in the last few months of the suit. The last few court motions in late May and early June were requests for extensions. It can't have been easy to fund an 8.5 million award among so many companies, and the accumulated costs of the litigation must have been staggering.
Also, confidentiality agreements between the parties had to be worked out.
The talks were probably concluded in mid-June. Even the timing of the conclusion is fuzzy. Out of nowhere, just as the July 4th weekend was arriving, so were the press releases about the settlement of the court case which had been dragging on for over three years. Bishop McDonnell was not at the press conference to answer questions from reporters about the settlement. He claimed that he had a previously scheduled three o'clock engagement in Watertown. Not surprisingly, his non-appearance was noted by the media. Since July 2, McDonnell has made no substantive comments on the settlement that I am aware of.
Now that some months have passed, it seems that the frequent predictions from diocesan lawyers about how the sky would fall if the 7,700 or so secret documents left the chancery were unfounded. But, the other side of that coin is that neither did the release of the documents to the insurers lead to any greater understanding of the settlement by the general public or by faithful adherents of the church, because they were not released by the insurer's lawyers. They were kept secret, as the lawyers had promised.
The exceptions to this are some of the Danny Croteau murder investigation papers, which were released to the public by the judge. On balance, the released papers certainly helped to settle the suit, and that is clearly positive.
Bishop McDonnell, like most bishops, is fond of speaking in slogans, euphemism and code, all of which tend to hide motivation.
But, actions speak louder than words. Lawyers, too, speak in a certain language, and act in a coordinated strategy to protect their clients. Over the long haul, as we study the court documents, we learn how the language and actions of our lawyers reflect and reinforce the will of the bishop – and this is, or should be, of interest to the laity. I will have more to say about this later, as we reexamine the public statements of Bishop McDonnell in early July and compare them to what actually transpired in the courtroom.
The press releases and articles in the Catholic Observer of July 11 have become more significant in view of the story that the court documents tell. And, in the meantime, since nothing further has been said about the settlement by the administrators of the Diocese, the little that they did say in July stands out all the more.
I'll be the first to admit that despite all this ink-stained typing I've done, there is a lot that I don't know about the settlements. They are, after all, secret agreements on highly volatile matters. For example, at the time of the 2004 settlement, 46 of the claims were consolidated and handled by one lawyer, John Stobierski, and many others were left to hang. I'm wondering, why this division?
It could be that McDonnell, coming in after such a catastrophe (Dupre resigned in Feb., 2004) felt great pressure to get rid of the backlogged cases - any cases - as soon as possible, and that this made consolidation a more attractive option. I could speculate that somehow Stobierski had lucked into several of the most "winnable" cases, and that this gave him greater leverage, such that he could attract others, and such that the Diocese felt they had to settle with him (and not other lawyers) – but I don't know that for a fact.
According to Mr. Egan, at least some of the 2004 cases were deemed "not credible" by the Diocese – but they settled anyway, because they were bundled together. He has not asserted this for the 2008 batch, as far as I know.
Looking so closely at recent Diocesan history raises many other questions. For example, Bishop Dupre. What is going on with him?
We have only a few clues. He's become a "non-person", barely mentioned on the Diocesan web site, and not even prayed for during Sunday services throughout the Diocese. Nor does his name appear next to fellow retired bishop Maguire in printed material published by the Dicoese.
Apparently his 2007 deposition took place in an office building in Baltimore. The lawyers for the insurers said they did not want to interview him in a "hospital setting". These two words from the Catholic Observer constitute, as far as I know, the only Diocesan information about Dupre's whereabouts or condition in several years.
When I wrote to the Diocese asking about Dupre, I got a terse reply to the effect that "he is no longer with the company". The Diocese excused itself from pursuing the sexual abuse charges against him, saying that all evidence was handed over to the Hampden County DA on the civil side, and that the canonical issues are being handled by Rome. Is is not clear if this deflection of the responsibility upstairs is because he is a bishop, or because he's a retired bishop, or because he's a resigned bishop. It would be nice to know more.
Naturally many parishioners would like to know if he's being financially supported by the diocese – but this, too, is murky. The Springfield Republican has reported that the Diocese was still providing him a rather long list of perks as of 2006 or so, but there's been no update since.
The civil suit against him has been settled. It was announced on Dec. 2, 2008, that Dupre had personally compensated the two accusers. Also, a new third claim against the Diocese concerning Dupre was settled (for which he did not contribute any money).
There is also a federal suit pending, as of October, 2007. I will have more to say about Dupre in the upcoming posts, but not because of the charges against him. As important as those charges are, an equally grave concern is the way that he handled abuse complaints during his 8-year reign. The upcoming installments will show how this legacy lived on at 65 Elliot St., in Springfield, chancery headquarters, long after his departure.
I thought it might be appropriate in this, the last section before going to straight history and commentary, to give you folks some of the "greatest hits" of the internet resources that I found worthwhile while researching this story.
The Bishop Accountability web site is invaluable. Kudos to Anne Bartlett Doyle and the other brave Catholics who keep it going. Incidentally, this resource was put to good use by the insurers and the judges. It regularly popped up in their footnotes.
In particular, the following page links to over a hundred news articles about allegations of sexual abuse in the Springfield Diocese, spanning 1991 to 2005:
The article by Kathy Shaw titled "Vatican Papers Spark Debate" from the Worcester Telegram & Gazette, Aug. 25, 2005 is fascinating. It's online at:
In this paper Ms. Shaw, formerly a religion writer for the Telegram, describes the Vatican document "Crimen Sollicitationis". This 1962 secret document is like catnip for conspiracy theorists because it mandates a complete blanket of secrecy about sex abuse cases within ecclesial ranks. It supports the first line of defense inside the profession, which is to gather and control incriminating information.
With this heritage, it appears to be the long-sought smoking gun in the sexual abuse crisis, i.e., "orders from above". And, it certainly is incriminating. However, it is also true that Crimen has been misinterpreted over the years since its "outing". Shaw does an excellent job in this article of placing the document in context.
Another Vatican document, one that was important to the 8.5 Settlement case, is Sacramentorum Sanctitatis Tutela (see pg. 30 of P.69 for the insurers' argument of how it relates). It is not easy to know exactly what the ramifications of the document are from a U.S. lay perspective – and the Vatican and bishops are not helpful in explaining them. Another Vatican document dealing with sex crimes is "De delictis gravioribus".
While wandering on the internet, take some care. Quick-and-easy references and bald assertions about all of these: Crimen, SST, and De delictis gravioribus, should be taken with a grain of salt. Victim advocates no less than Catholic apologists often have an ax to grind, and the latter are especially skilled at keeping the ax hidden.
Another fascinating document is a legal research paper about diocesan liability: "The Bishop's Alter Ego", by Bainbridge and Cole, UCLA. The paper is online at:
In it, we learn on pg. 13 and 14 how far removed from canon law the legalism known as "corporation sole" really is. This paper explains why corporation sole doesn't mesh with canon law. It quotes the "New Commentary on Canon Law", the authoritative church resource, to that effect. This conflict helps explain why dioceses make the choices they do.
For just one example, the paper makes it clear how inextricably linked parish finances are with the diocese. The people at St. Stan's in Adams, one of those parishes resisting closure, who have studied the local financial picture with diligence, might find this connection of interest.
Under corporation sole, there really is only one pot, despite the frequent attempts by Diocesan spokesmen to distance the "central funds" from those of the parishes. The support for "Clergy On Involuntary Leave", for example, which is usually about $160,000 per year in Springfield, appears only as a line item of the annual Diocesan report. It is unlikely that volunteers counting the income from parish pancake breakfasts would make the connection, and yet both the income from the fund-raisers and the expenses of the central funds are part of the assets and liabilities of corporation sole. As the "Alter Ego" paper states on pg. 13:
"...centralization of “ownership and control of all church property within a diocese is contrary to the law of the Church.”" (their quote is from pg. 1457 of the New Commentary).
Also, on pg. 14, " … incorporation as a corporation sole exposes the assets of parishes and other juridic persons, which in canon law are the property of such persons, to the claims of creditors of the diocese….conversely, by centralizing civil ownership in a single entity, the corporation sole also exposes '…all parochial and other church related assets within a diocese to satisfy creditors’ claims against any individual parish or institution.'”[the last statement is also from pg. 1457].
Finally, the "Talbot" case from the Boston area is quite interesting, because it raises the same issues about so-called "privileged" documents that were a central feature of the 8.5 Settlement. In fact, it reads almost like a blueprint for the efforts of Mr. Egan's legal team. Which is a little odd, because "Talbot" was mostly a loser for the clergy. However, some of the Talbot decision upheld secrecy. The court found that documents connected to discipline between priests and superiors involved religious beliefs, and therefore qualified for protection.
This last part was found to be a valid excuse for secrecy. This helps to explain why the Springfield Diocese rolled the dice on trying to enforce all of the defenses brought up by "Talbot" even though most of them had already been found without merit by the courts. Ironically, even the one aspect that prevailed in Talbot was shot down in the Springfield case (see P.89, pg. 8).
"Talbot" Main case (May 13, 2004) can be found at:
"Talbot" Appeal (Nov. 24, 2004) can be found at: