Springfield 8.5 Settlement

List of Accused Clergy

2009-08-16T18:39:00.000-07:00

UPDATE: Sept. 3, 2011

the Diocese has released a long-awaited list of credibly accused clergy, which can be seen here:

http://www.scribd.com/doc/63751160/History-and-Procedures-for-Handling-of-Misconduct-Allegations

MY TAKE ON THE PRESS RELEASE:

Over time, we will incorporate this new information into our "List of Accused Clergy" below. As for the press release:

From the start, this press release is weird. It is not about disclosure of misconduct. It is about the Diocese. I thought the point was to publish a list of offenders.

Instead, the first few paragraphs talk about how the process was supposed to work, instead of how it actually worked.

By talking about the “professional staff” and the “timely response” of said staff as of 2003, the article implies that that the standards of the Diocese were high – without taking note of the fact that the Misconduct Commission was judged a failure by most of the community, including the Catholic community, because it fell down on precisely these attributes of trust and professionalism.

For confirmation, see the many Springfield Republican articles in the time frame of 1992-2002 which detail a growing frustration on the part of victims to get their cases heard and judged fairly.

The fib that Diocesan employees function as mandated reporters is especially galling. To this day I know of not a single instance of a Diocesan employee going directly to the police, as they are supposed to do, rather than confiding in church officials on Elliot St. In acting as enablers, they continue to uphold a venerable system of iron-fisted ecclesiastical control familiar to older Catholics and brought forward by Bishop McDonnell.

The reference to "CORI checks every three years" does not explain the phenomenon of Al Blanchard and makes that breach in security appear all the worse. Nor does "timely" explain why Diocesan officials are still diddling around with the Wamsher, Devlin, Lavelle and Koonz cases, which are (or should be) ancient history. What is left to know, in order to take action?

Discussing administrative procedures as distinct from canonical ones does nothing to advance the argument. Again, this Diocesan action is supposed to be about disclosure and transparency, about redemption and forgiveness, and safety. It is about removing the fog surrounding accusations, not about making the fog worse. Clearly, the statement has degenerated into a defensive posture which invites more excuses, not less.

The press release fails to note that whatever one can say about canonical or administrative procedures, they remain secret. The results are not announced, nor are they published. That is why this document could have done so much more to settle issues, instead of raising new questions. Instead, we're left with the queasy sense that even now, we don’t know if the Diocese is trustworthy. There is no point of comparison and no way to check the facts.

This statement is especially troubling: “The diocese has a liaison to those priests with credible allegations but not laicized, to provide reasonable assurance that they are abiding by the restrictions put forth.”

What this claims is that the public have no need for assurance about the bad actors in clerical ranks, because the Diocese has it covered. What an outrageous statement. Anyone who thinks that the Diocese is competent and aboveboard in these matters has simply not been paying attention.

This is the last organization that I would trust to monitor a pedophile, not the first. In addition, there is certainly a liaison between Diocese and credibly accused — a financial one. It would be nice to see this acknowledged: “This liaison includes a financial aspect as well because we continue to support clergy in this position with health insurance and benefits as well as a stipend”. You will never see that statement in Diocesan press releases but it is often true. It is especially true of the Most Reverend Thomas Dupre.

Finally, we should be glad that a few additional names have surfaced on this list, because, even if it’s a long shot, this might lead to some justice for victims who recognize the names and now come forward.

The fact that this list was released riding the coattails of the list from the Boston Archdiocese, that it was released just before a holiday weekend, and that it is incomplete will not surprise members of SNAP and the many lay Catholics who follow these developments.

It is shameful that the Diocese continues to make the distinction between living and dead priests in terms of publishing names. Clearly, the inference is supposed to be that the Diocese cares about upholding the reputation of a dead priest, and that is supposed to explain why they can’t publish his name.

The reality is a little different. If you study the case of Fr. Huller, for example, you learn that the Diocese couldn’t be bothered fighting in court to clear his name. Not because they had any burning desire to protect his name, but because it cost money to defend, and they might not win if they defend, so what was the point? Fr. Huller’s case was settled, which is a way of admitting guilt while not admitting guilt. The terms of the settlement include secrecy. All fixed, from the Diocesan point of view.

The flip side of this halfhearted solution is that the public never learns the upshot of the case, because there is no verdict, no discovery, no press, no testimony, nothing that would explain the circumstances of the accusation. For this reason, settlements always reinforce the status quo and will never result in meaningful change.

On the topic of meaningful change, it would be great to see a large turnout on Sept. 27th for the perennial presentation of a bill at the State House to change the laws, which are now stacked against abuse victims. Please note the following announcement:

Massachusetts House Bill No. 469, proposed legislation which would eliminate civil & criminal statutes of limitation, and charitable immunity, in child sex abuse cases, will be heard on September 27, 2011, at the Massachusetts State House, at 1:00 p.m., in Room A-1. The hearing will be preceded by a Rally in front of the State House, at 11:00 a.m.

This is the best opportunity we have had in several years to obtain passage of this legislation. We need an extraordinary turnout of survivors and supporters on that day, for both the Rally and the Hearing. Please come, and bring at least one other person with you.

Thank you for your support.

For more information, contact Carmen L. Durso, at:
617-728-9123 / 800-287-9123 / dursolaw@tiac.net

You can be sure that the Bishops of the Commonwealth will be there, opposing the bill.

Will you be there as well, to support it?

UPDATES

Jan. 19, 2011: Boston Globe article (by Lisa Wangness)

Frustrated that the Roman Catholic Archdiocese of Boston has not published a list of priests accused of abusing minors, a Boston lawyer who has represented hundreds of victims plans today to release his own list of more than 100 alleged abusers.

Mitchell Garabedian said yesterday that he would hold a press conference this morning to announce the names of priests, members of religious orders, and former employees of the Catholic Church named in sexual abuse complaints for which he has obtained settlements or arbitration awards.

He said he would also post the 117 names, 99 of whom served in the Boston Archdiocese, on his firm’s website.

Garabedian, who said he has represented more than 750 victims of sexual abuse by clergy, said he is publishing the list because Cardinal Seán P. O’Malley has not fulfilled a promise he made almost two years ago to release a comprehensive list of priests who sexually abused children in the Archdiocese of Boston.

The publication of such lists has been a top goal of victim advocacy groups, and a number of dioceses around the country have posted them.

Garabedian said his goal is “to provide the necessary transparency that the church does not provide, transparency that allows victims to heal and protects children.’’
(full article here)

Jan. 14, 2011: Rev. Gary Mercure’s molestation trial to begin Jan. 31 in Berkshire County

Dave Canfield reported in The Record (Troy, NY), on Jan. 14, 2011, that Mercure, a Troy, NY, priest, will stand trial Jan. 31 on Massachusetts charges alleging he molested a pair of boys in the 1980s.

Mercure was suspended by the Albany diocese in January 2008. The Diocese found reasonable cause that the priest had abused a child locally decades ago. He has been charged with similar crimes in Massachusetts. Although Mercure has been suspended from ministry by the Albany diocese, there appears to be no record of his laicization by the Vatican. According to the bylined article:

"Mercure, who spent time at Sacred Heart and St. William’s in Troy, was accused in 2008 of abusing children locally in the 1980s. Numerous victims came forward to tell their tales of alleged abuse, but no charges could be filed locally due to the statues of limitations on the applicable charges.

After he was charged in Massachusetts, he saw several delays in his trial date. According to the Berkshire County District Attorney’s Office, jury selection will begin Jan. 31. Mercure was first ordained in the mid-1970s. He spent much of his time at local churches, which also included Our Lady of the Assumption in Latham, Our Lady of Annunciation in Queensbury, St. Teresa of Avila in Albany and St. Mary's in Glens Falls."

Mercure's attorney for his prior court dates has been Michael O. Jennings of Springfield. It is likely that this is the same Michael O. Jennings who has defended Bishop Thomas Dupre on several occasions.

Rev. Gary Mercure was convicted on all counts and sentenced to 20 to 25 years in state prison.
For our posts on the aftermath of the verdict, see:

The Mercure Verdict
The Mercure Verdict: Updated

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____end of Updates section____
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List of Accused Clergy
.

The following is a list of priests, deacons and sisters who served or lived in the Roman Catholic Diocese of Springfield, Massachsetts who have faced sexual abuse allegations while in the clerical state.

Although there are said to be around two dozen dioceses in the U.S. with lists of credibly accused clergy on their web site, including Chicago and Milwaukee, the Springfield Diocese is not among them. The Boston Archdiocese has reportedly pledged to post such a list. We applaud this openness, consider it long overdue, and await in hope a change of attitude in the Springfield Diocese.

In June of 2010, the Springfield Diocese raised hopes by announcing that it was publishing a list of about a half-dozen offenders on their web site (see WAMC public radio link here and CBS-3 TV link here). However, Bishop McDonnell did not follow through.

Meanwhile, the toll of secrecy has been devastating. New stories of old cover ups continue to surface. The truth has a way of bubbling up. It would be a full-time job to keep track of all developments, but here are a few articles from 2010:

Stephanie Barry on the former Rev. Al Blanchard
Kevin Cullen on the former Rev. Al Blanchard
Michigan Man Sues Former Bishops
Dupre's New Address
Dupre, Maguire, Sniezyk Sued by Williamstown Man

A note on the latest scandal, the Blanchard affair:

SNAP spokesman Peter Pollard issued the following clarification about the position of SNAP vis-a-vis the support group "Always Our Children" that Blanchard had joined without informing them of his past:

Please know that SNAP and the courageous woman who revealed Blanchard's past are fully supportive of the wonderful work Always Our Children does, and of the support the group has provided to countless families. And we applaud the Diocese for its support of the group. Our reluctance to in any way diminish the effectiveness of the group was one of the reasons that the survivor waited so long for the Diocese to act on its own to remove Blanchard from a position that lent him the stamp of approval of the Diocese in his work as a social worker, knowledgeable about families struggling with confusing sexual issues.
The survivor was informed in Sept. 2009, six months after reporting her concerns, that the Bishop had refused to release her from the confidentiality agreement, or to use information in the Dioceses' possession to join her in filing a complaint about his license, or to remove Blanchard from the post. Why the Diocese refused for 14 months to remove a man, who the Diocese clearly knew had a history of sexual violations, from a role working on sexual issues, remains one of the most disturbing aspects of this whole situation.
Our goal in revealing this information was about preserving the integrity and safety of All Our Children, not about doing it harm. Al Blanchard's choices and the Diocese's blatant disregard for its own policies are the source of any harm to the group. We hope the group remains strong in spite of this difficulty.
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In the big picture, there have been slightly over 100 individuals who brought claims against around 60 individual priests or the Diocese. These were the subject of litigation in the late 90's and early 00's. Eventually two large settlements were made, one in 2004 and one in 2008. These were not class-action suits, but rather consolidations of individual claims.

The average award for the 2004 settlement with 46 claimants was about $175,000, and the average award for the 2008 settlement with 59 claimants was about $75,000. These are far below national averages. Bishops in the Commonwealth enjoy great leverage in court from two factors: the "charitable immunity" doctrine, which includes a $20,000 cap on damage awards, and our outmoded SOL laws, which bar claims after a certain number of years.

The 2008 settlement of 8.5 million dollars is covered in some detail at this web site.

The settlement amounts are not easy to understand, not least because the insurance companies refused to reimburse the Diocese for an initial 7.75 million payout, causing a three-year court fight. For a narrative summary of the True Cost of the Settlements, see this post.
_____

Many of the names below are from the consolidated cases handled by Attorney John Stobierski in 2004 and 2008. The Dec. 3, 2008 press release is an important resource (K). Other names are from news accounts and other public documents. Information for each entry is keyed to a source list. Corrections and updates are welcomed.

This list is limited to the most relevant information. More information about individuals named here can be found by searching the database of archived news articles at: www.bishop-accountability.org and other internet databases.

_______________
(x) defrocked
(+) deceased

Rev. Richard J. Ahearn, CSS, (+), multiple allegations, 1 settled 2008. According to two attorneys in 2002, six men have alleged that they were molested as boys by either the Revs. Richard J. Ahern or fellow Stigmatine Joseph E. Flood. The alleged abuse occurred in Springfield, Agawam, and in New Hampshire. Abuse claims were also made against Ahearn in Virginia. Ahearn was a longtime Springfield area priest and served in St. Anthony's and Sacred Heart (both in Agawam), St. Ann's (W. Springfield), and Mt. Carmel (Pittsfield). V. X.

Rev. Gerald Beauregard (+), 1 allegation settled 2008. K. L.

Monsignor John J. Bonzagni, 1 allegation settled 2004. Bonzagni denied the woman's allegations and counter-sued. The claim and counter-claim were both settled in 2004. Bonzagni remains in ministry and was made a Monsignor in 2006. A. K.

Rev. Paul T. Boudreau, 1 allegation settled 2004; reported to have "abandoned priesthood" and said to be living in Florida as of 2004. Boudreau was ordained in 1955 and served in Easthampton, Springfield, Westfield, and Pittsfield (St. Therese). Boudreau has denied the allegation. A. W.

Rev. Andre Corbin (+), 1 allegation settled in 2004; 2 allegations from North Carolina, one of which resulted in a guilty plea to molestation charges in 1989 and a 5-year sentence. He was accused of sexual abusing a minor at Holy Name (Springfield) while filling in as a replacement priest during the 1960s; the lawsuit led to the 2004 settlement. He died in a house fire in Palmer, MA in 2008. A. Z. AA.

Rev. Aaron J. Cote, Dominican. Multiple allegations elsewhere, one lawsuit here. An attorney for an alleged victim stated in 2007 that there were ‘‘10 different reports of sexual misconduct and abuse” against Cote from people in 10 different parishes in six states over 20 years.
In April, '08, a Springfield-area family filed a lawsuit in New York City where the Dominicans have a provincial office, alleging that Cote molested two local preschool boys in 2003. Cote graduated from Holyoke Catholic High School, according to the diocese, and served in parishes in South Hadley and Westfield on a visiting basis during the 1990s. In 2009 he was convicted of abuse and sentenced to 10 years probation. R. S.

Rev. Donald A. Desilets (+), 1 allegation settled 2004, 1 settled 2008. Allegations date from the '70s. Desilets served at Assumption Church in Chicopee, at St. Thomas Aquinas Church in Springfield from 1971 to 1972 and at St. Louis de France Church in West Springfield from 1972 to 1975. He went to Precious Blood in 1975. Removed from full-time ministry by recommendation of Misconduct Commission after allegations. BB. C.

Rev. Paul Desilets, Clerics of Saint Viator (CSV). A Springfield native, and ordained in Springfield in 1963, he was accused of hundreds of incidents of child sexual molestation dating from the 1970s and 1980s while serving at Assumption Church in Bellingham, according to three suits filed in Suffolk Superior Court. A lawyer and an investigator involved in the suits said none of those complaints involved Western Massachusetts.
Desilets also served at the former Precious Blood Church in Holyoke and as a Mercy Hospital chaplain in 1969. Desilets' last known location was a nursing home in Rigaud, Quebec. K. N. CC.

Rev. Michael H. Devlin, 2 allegations, one settled 2008. The incidents are said to have taken place in the 1970s while Devlin was stationed at St. Thomas' Parish in West Springfield and All Soul's Parish in Springfield. Removed from ministry in December of 2004. He also served at St. Patrick's in Williamstown and Providence Place in Springfield.
On Feb. 2, 2005, the following item appeared in the newsletter of the archdiocese of Miami: "FOR YOUR INFORMATION - The Reverend Michael H. Devlin (Diocese of Springfield) does not enjoy the faculties of the Archdiocese of Miami. Please contact Msgr. Souckar should he present himself to serve in your parish." On May 26, 2010, a post on the internet was signed by "Fr. Michael Devlin, Oakland Park, FL." B. O.

Rev. Frederick Dion (+), 1 allegation settled 2008. K. L.

Rev. Andrew Dodo, visiting priest from Nigeria, was serving as a supply priest in the Diocese, living at Our Lady of Hope Rectory and working at Baystate Medical Center when he was accused of sexual misconduct by an adult. The allegation was unrelated to his work at the Center. He was placed on administrative leave pending further investigation. VV.

Rev. Eugene Dranka (MS) (+), 2 allegations settled 2004. Dranka, a native of Three Rivers and a member of the LaSallette Order, served in parishes in Westfield, Palmer, and Bondsville as well as LaSallette settings in Texas and New Hampshire. He died at age 66 in 1974. A. W.

Rev. Donald V. Dube (+), 1 allegation settled 2004. Dube was removed from parish ministry by the Diocese in the mid-1990s while at Notre Dame in Easthampton because of credible allegations of sexual abuse. His estate was sued after his death in 2003. The alleged incidents took place at Notre Dame in North Adams. A. DD.

Most Rev. Thomas Dupre, 3 allegations settled 2008. Dupre was confronted with allegations of abuse on Feb. 10, 2004 and resigned the next day. He lived for the next several years at a treatment facility in Maryland. Two claims filed in 2004 were related to his service at Springfield-area parishes in the 1970s. Those claimants received payments (including a personal payment from Dupre) after the 2008 negotiation, according to the Diocese. A third claim (to which Dupre did not contribute) was settled by the Diocese in 2008. Dupre was sued for negligence in May, 2010 over his supervision of former Rev. Richard Lavigne by a Michigan man. K. EE. FF. II. XX.

Rev. David Farland, 1 allegation settled. After allegations in the early 90's, Farland was removed from parish work, sent for counseling and placed in "limited ministry" as Springfield Fire Dept. chaplin for the next 10 years. Members of the Fire Dept. were not told of the allegations. In 2002, he was secretly removed from all ministry. In 2006, after an inquiry from the Springfield Republican, the Diocese confirmed his removal from all ministry 4 years earlier. His present whereabouts are unknown. He is reportedly a candidate for laicization. Q. JJ. KK.

Rev. Joseph E. Flood (CSS) (+). According to two attorneys in 2002, six men have alleged that they were molested as boys by either the Revs. Richard J. Ahern or fellow Stigmatine Joseph E. Flood. The abuse is alleged to have occurred in Springfield (provincial house), Agawam (St. Anthony's), or New Hampshire. Ahearn also served at Sacred Heart in Agawam. V.

Rev. Joseph Clarence W. Forand (+), 1 allegation settled 2004. The diocese acknowledged that a credible accusation was made against Forand. A. L. HH.

Brother Lawrence Gauthier, 1 allegation 2002. A man filed a lawsuit against Gauthier for abuse stemming from Gauthiers's work as groundskeeper at Immaculate Heart of Mary Seminary in Lenox during 1969-72. The suit alleged that between 7 and 10 other children were abused. The suit targeted both the Diocese of Springfield and the religious order, the Priests of the Sacred Heart. As of 2002, Gauthier was retired but still a member of the order, living in Wisconsin. SS. TT.

Alfred Graves (x), 1 allegation settled 2004, 1 settled 2008. Graves was removed from ministry because of credible accusations of sexual abuse, according to diocesan officials. He has since been defrocked (announced on Dec. 2, 2006). More allegations against Graves were made in 2009 by a Williamstown man who sued Graves' supervisors for negligence. The suit lodges charges of neglect against Bishop Joseph Maguire, who was head of the Diocese at the time of the alleged abuse; the Most Rev. Thomas L. Dupre, Maguire’s successor who was chancellor and third in command at the time; and Monsignor Richard S. Sneizyk, who was vicar for priests.

Rev. E. Karl Huller (+), 2 allegations settled 2004. Huller, former athletic director and superintendent of schools, was accused of sexually abusing Cathedral High School students during the 1960s in lawsuits filed against the diocese. A. L. N. II.

Rev. J. (Joseph) Roy Jenness (+), 1 allegation settled in 2004, 3 settled 2008. Jenness was accused of joining other priests in sexually abusing minors in the period 1967-83 in lawsuits filed against the diocese. As early as the 1950s, Jenness was implicated in a Worcester Diocese report on group sexual abuse in Manchester, NH. A. L. K. J.

Rev. Vernon Kelly, 1 allegation settled 2008. K.

Edward M. Kennedy (x), 1 allegation settled 2004, 1 settled 2008. Kennedy was removed from parish ministry in the 1990s. Upon removal from parish ministry he was sent to graduate school, earned a degree in canon law, and served in the chancery on the marriage tribunal and as a substitute priest in parishes for many years. When the Dallas norms were mandated, he was removed from all ministry because of credible accusations of sexual abuse, according to diocesan officials. Kennedy has since been defrocked (announced on Dec. 2, 2006). A. J. K. II. NN.

Rev. John A. Koonz, 3 allegations settled 2004, 1 settled 2008. Koonz was removed from ministry because of credible accusations of sexual abuse, according to diocesan officials. Three men came forward in Sept. of 2002 to allege that Koonz abused them at separate times when they were teenagers. He is reportedly a candidate for laicization. A. O. JJ. UU.

Rev. Paul LaFlamme, 1 allegation, 2003. A housekeeper became pregnant after encounters with LaFlamme. The pregnancy reportedly ended in a stillbirth. LaFlamme was temporarily suspended after he admitted to the encounters. D. OO.

Leo Landry (x), former Stigmatine (CSS), 1 allegation settled 2008. An Easthampton man accused Landry of abusing him as a minor at St. Anthony's Church in Agawam and elsewhere. He also served at St. Ann's in West Springfield and Mt. Carmel in Pittsfield.
Landry admitted in a sworn statement to New Hampshire law enforcement officials in 2003 that he abused at least a half-dozen children while serving in the Springfield diocese. He pleaded guilty in August, 2004 to criminal sexual abuse charges in Norfolk County (MA). He was sentenced to life probation and was a registered sex offender in Colorado as of June, 2004. K. O. T.

Rev. Francis P. Lavelle, 3 allegations settled 2004, 2 settled 2008. An assistant to two bishops and pastor of a Longmeadow church, he was removed from all ministry because of credible accusations of sexual abuse, according to diocesan officials. He is reportedly a candidate for laicization. A. O. II. JJ.

Richard R. Lavigne (x), 17 allegations settled 1994 (lead attorney Wiggins); 1 allegation settled 1996 (Joseph Croteau); 24 allegations settled 2004; 7 allegations settled 2008; defrocked in Dec. 2003. Lavigne is listed as a Level III sex offender (high risk) on the website of the Chicopee Police Dept. In 2010, a civil lawsuit was filed against two supervisors of Lavigne (Bishop Maguire and Bishop Dupre) by a Michigan man accusing them of negligence in connection with alleged abuse at St. Francis Church of North Adams in 1976-77. A. XX.

Monsignor Timothy L. Leary (+), 2 allegations. Leary was accused of abuse in a lawsuit against Lavelle, and also accused separately. Both claims were settled in 2008. O. K. L.

Ronald Malboeuf (x), 2 allegations in 1988, defrocked in 1989; two allegations settled 2004. Reportedly living in Florida. A. GG.

Rev. Gary LaMontagne, 1 allegation 1992. LaMontague was a curate at St. Mary's Church in Westfield when he pleaded guilty to a charge of indecent assault. He was sentenced to three years of probation and counseling in 1992. M. RR.

Rev. Mr. James Martone (deacon), 1 allegation made in 2004 for incidents beginning in 1991. Martone was removed from all ministry in 2005. He served at Sacred Heart (Agawam), St. Louis de France, Immaculate Conception, and Our Lady of Hope parishes. P. PP.

Rev. Thomas McCarthy, 1 allegation settled 2008. K.

Rev. John McNamara, 1 allegation settled 2008. K.

Richard F. Meehan (x), 2 allegations settled 2004, 2 settled 2008. The one-time director of vocations for the diocese was removed from parish ministry in '90s; he then served in chancery offices for many years. Removed from all ministry in 2002 because of credible accusations of sexual abuse, according to diocesan officials. Meehan has since been defrocked (announced on June 8, 2006). A. I. K. II.

Rev. ____ Menge, 1 allegation settled 2008. K.

Rev. Thomas O'Connor (+), 1 allegation settled 2008. A plaintiff said he was abused 1952-53, at St. Patrick's parish in Monson. K. LL.

Rev. Thomas F. O'Malley (+), 1 allegation settled 2004. O'Malley served in parishes in Palmer's Thorndike section, Shelburne Falls, Holyoke, Springfield, Worcester and North Adams. O'Malley, a Clinton native, was ordained in 1930 and died at age 84 in 1985. A. L. W.

Rev. George Paulin, Burlington (VT) Diocese, 1 allegation settled 2003, 1 settled 2004, 1 settled 2007, 1 settled in 2008. The allegations in the 2003 settlement included charges that former priest Richard Lavigne transported a North Adams youth to Paulin's residence in Vermont. K. U.

Edward O. Paquette, Jr. (x), serial offender in the dioceses of Fall River, MA, Fort Wayne-South Bend, IN, and Burlington, VT. He currently resides on Belleview Dr., Westfield, MA, with no supervision. There have been two multi-million dollar jury awards in Vermont after trials concerning his conduct, with more pending. The pending suits were largely bundled together and settled in early 2010. Paquette was laicized by the Vatican on Jan. 31, 2009, and the announcement was made in early May, 2009. H. WW.

Rev. Leo T. Riley (+), (CSS). Riley, a Stigmatine order priest, was accused of molesting a student over a four-year period while teaching at Elm Bank seminary in Wellesley. He was subsequently transferred. His last assignment was rector of the St. Anthony mission in Agawam. V.

Rev. Michael Sabotor, 1 allegation settled 2008. K.

Rev. John Scanlon, 1 allegation settled 2008. K.

Rev. John J. Szantry. He was ordained as a Marian of the Immaculate Conception (MIC) and spent time in Stockbridge before becoming incardinated into the Worcester Diocese in 1980. Father Szantyr is allegedly a repeat sexual offender with victims in more than one diocese. He was indicted for abuse in the Worcester Diocese for incidents in the 1980s. QQ.

Rev. Ronald E. Wamsher, 1 allegation received in 2002, 3 settled 2008. Removed from all ministry in 2002 and placed on leave in 2004. At the time of his removal, Wamsher was a legal aide to the diocesan tribunal that rules on marriage annulments. He is reportedly a candidate for laicization. G. K. P. JJ.

Rev. David Welch (+), 1 allegation settled 2004, 2 settled 2008. Welch was the editor of the Catholic Observer for many years and served as the executor of Bishop Christopher Weldon's estate. A. E. L. K.

Mary Jane Vidnansky (x), 1 allegation. Vidnansky belonged to the Franciscan Sisters of St. Joseph when she taught at Mater Dolorosa School in Holyoke. The order has stated she is no longer a member. She was sued for abuse dating from the mid-'70s in Dec. 2004.
The lawsuit was the second known legal action against a woman religious in the diocese. Accusations against two other sisters had been brought to the Diocesan Review Board by mid-2003. One case against a Sister of Providence was among cases included in the 2004 settlement. LL. MM.

Source List

Berkshire Eagle (Pittsfield, MA): 12/31/2004 (B); Aug. 18, 2004 (W); March 29, 2004 (SS); May 20, 2010 (XX).

Boston Globe: Nov. 21, 2003 (D); Feb. 21, 2004 (E); April 14, 2004 (F); April 16, 2004 (G); June 11, 2004 (T); Aug. 10, 2002 (V); March 23, 2002 (GG); Nov. 21, 2003 (OO); May 12, 2004 (PP); Apr. 25, 1992 (RR).

CBS3 TV, Dec. 9, 2008 (X: the name "O'Hearn" in this transcription of a TV broadcast appears to be a misspelling of "Ahearn").

Catholic Observer: Jan. 7, 2005 (MM).

North Adams Transcript (MA): Sept. 18, 2009 (YY).

Republican-American (Waterbury, CT): Jan. 8, 2005 (QQ)

Providence Journal: May 7, 2009 (WW)

Springfield Union News & Sunday Republican: Aug. 17, 2004 (A); June 7, 2002 (C); Feb. 27, 2005 (H); June 9, 2006 (I); Dec. 2, 2006 (J); Dec. 14, 1992 (M); Feb. 15, 2002; March 24, 2003 (N); Jan. 8, 2005 (O); April 9, 2008 (R); Oct. 16, 2003 (U); May 15, 2008 (Z); Oct. 11, 2004 (AA); Dec. 23, 1993 (BB), Feb. 25, 2002 (CC); May 5, 2004 (DD); Dec. 2, 2008 (EE); July 22, 2006 (FF); July 6, 2004 (HH); March 1, 2004 (II); June 29, 2006 (JJ); March 10, 2006 (KK); Dec. 30, 2004 (LL); Oct. 15, 2005 (NN); March 28, 2002 (TT); June 17, 2002 (UU); June 2, 2004 (VV).

Press Release, Office of Stobierski & Stobierski, Dec. 3, 2008 (K).

2008 Diocese of Springfield Directory (necrology) (L).

Springfield Diocese Press Releases: May 11, 2005 (P); March 8, 2006 (Q).

The Gazette (Gaithersburg, MD): July 9, 2008 (S).
_____________

___________________
___
(+) deceased:

Rev. Richard J. Ahearn, CSS
Rev. Gerald Beauregard
Rev. Andre Corbin
Rev. Donald A. Desilets
Rev. Frederick Dion
Rev. Eugene Dranka, MS
Rev. Donald Dube
Rev. Joseph E. Flood, CSS
Rev. J.W. Clarence Forand
Rev. E. Karl Huller
Rev. J. (Joseph) Roy Jenness
Msgr. Timothy L. Leary
Rev. Thomas J. O'Connor
Rev. Thomas F. O'Malley
Rev. Leo T. Riley, CSS
Msgr. David Welch

(x) defrocked:

Alfred Graves
Edward M. Kennedy
Leo Landry
Richard Lavigne
Ronald Malboeuf
Richard Meehan
Edward O. Paquette, Jr.
Mary Jane Vidnansky

"Dallas Norms" mandated removal from ministry after 2002:

Rev. John Koonz
Edward Kennedy
Richard Lavigne
Richard Meehan
Alfred Graves
Rev. David Farland
Rev. Ronald Wamsher
Rev. Francis Lavelle
Rev. Mr. James Martone

Springfield 8.5 Settlement

2009-04-17T12:21:00.000-07:00

BY ROBERT M. KELLY

A Book-Length Study of the $8.5 Million Settlement of 60 Years of Sexual Abuse Claims Against the Roman Catholic Diocese of Springfield in Massachusetts

TABLE OF CONTENTS

List of Accused Clergy

Chapter Twenty-One: Conclusion

2009-04-15T11:59:00.000-07:00

"…Bishop Dupre … is not an evil man. He is being forced, I believe, to do evil things…"

[Scahill Deposition, Oct. 29, 2003]

Separating the sinner from the sin is just as important today as it was in late 2003, when the sexual abuse crisis in the Diocese of Springfield was coming to a head. We want to believe that people, including bishops, can change. But, when mistakes are made, there is a thirst for justice which can only be slaked by a day of reckoning. We need to ask: how much has really changed, over the last six years or so?

On its face, the $8.5 million settlement is an attempt to settle, once and for all, sixty year's worth of claims leveled against the personnel of the Diocese of Springfield. "Settle" means to fix or resolve conclusively. This suggests finality, if not an outright absolution. So, does the settlement fit this definition?

I believe it does, in the legal sense. There are unlikely to be further court proceedings from the 46 who settled in 2004, or the 59 who settled in 2008. And, if the claims against employees are resolved, any reservations about supervisors become moot, because there is no one to press the claims and no way to prove them.

However, there's an aspect which I believe the settlements do not address. And that, perhaps surprisingly, is the moral one.

The Diocese would like us to believe that this satisfactory conclusion in the legal arena carries with it a moral stamp of approval. And we know this from their press releases and editorials. For example, on July 2, 2008, Attorney John Egan claimed that the settlement proved the innocence of the Diocese, once and for all. A church editorial on July 11 asserted that mediation was the best available method to achieve justice.

Again, on Nov. 27, when the arbitration awards were finalized , Egan stated that full participation was a tribute to the fairness of the process. And, Bishop McDonnell said that the diocese reached out to victims from a sense of moral responsibility. Clearly, the settlement is believed by the Diocese to carry highly moral overtones.

I disagree with these assessments because I don't think they are supported by the facts. Two themes stand out: policy, and money.

From the beginning, the policy of the Springfield Diocese toward sexual abuse allegations has not been shaped by justice, fairness, or a sense of responsibility. The policy has been to avoid them, to flee them, and when cornered, to fight them. A review of the record (close to 100 news articles and over 100 legal papers over the last 10 years or so) shows this without question.

The subtext of the church's declarations is that since the victims have what they want – money – the problem is solved. But, when you look at what victims actually asked for, you find that money was the least of it.

Instead, they wanted compassion and understanding. They wanted the perpetrators removed from our midst, quickly. Accountability to this degree never happened, and it remains elusive. The implications of this failure are not clear. But, it is clear that we cannot ignore it.

As we've discussed, the Diocese of Springfield is really two things. The canonical one is a particular church founded in 1870, and the legal one is a corporation sole created in 1898. This composite is not easily described. Every analogy falls short, but this one conveys some truth:

For convenience and protection, the Diocese of Springfield wears a suit of armor (corporation sole). But, the canonical Diocese of Springfield is the beating heart within the body.

The pre-trial hearings of the insurance dispute confirmed beyond any question that church officials must uphold the law of the land while operating under corporation sole. They are not allowed a pass. This gives us a starting point for the difference between the canonical Diocese and the legal one.

But, this very distinction raises concerns: If the civil Diocese, the legal one, has been found accountable – judged to have a moral duty to our fellow citizens – can the canonical Diocese be any less moral than the legal Diocese? Aren't we, the body of Christ and the communion of saints, supposed to reach higher than the civil standard?

Maybe past bishops and their legal advisers put all the eggs into the corporation sole basket with the firm moral conviction that it was the best way to serve the canonical Diocese. One can agree that self-preservation is a powerful and often legitimate motive. But, the legal strategy that works to protect the civil corporation should never be allowed to work against pastoral responsibilities.

When I began this study, I said that "…even when the interests of civil and religious society seem most opposed, the hope and belief is that they can yet be reconciled..…" I still think that. But, I have to admit that I am sobered by the Diocesan attitudes I have identified, and the challenge ahead.

For example, laity and clergy are supposed to be part of the same body and the same family. And yet, chancery officials have never bothered to explain their legal strategy to the laity, much less ask for advice, despite ample opportunity to do so. I find this insensitive.

The laity are the loyal faithful who make all the good works of the Diocese. Why else do we have media such as the Diocesan newspaper, the public affairs office and the web site, and what could be more important than consulting with us, and confirming and explaining what the official Diocese is up to?

It seems clear from this study that church officials in Springfield do not encourage expression of ideas within the church. If they did, we would have seen a lively debate about these critical settlement issues in both church and public forums, instead of a moral vacuum in which individual voices (whether from priest or laity) are systematically stifled. From the evidence, the Diocese of Springfield does not just dislike free speech; it hates and fears it.

These ideas are so far from the ideals of Catholicism, and so far tilted toward an unhealthy and outmoded centralization doctrine, that I doubt even Bishop McDonnell would defend them. And yet, it seems from his action (or rather, from his inaction) that he considers control to be more important than communion.

Many more stumbling blocks come from Attorney Egan. He's still fighting the court case, except that the litigation has moved to the court of public opinion. He continues to misrepresent the facts of the case. This may be a justifiable, and even a winning strategy in court. However, in the canonical and moral sense, it is a grave failing. Again, the Diocese deserves better.

We need to solve these problems, because we need to restore the beating heart to the place of honor. With a change of heart, I believe that we can solve these problems. What will it take to get to the change of heart?

-- the end --

Chapter Twenty: The Top Five Recommendations

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5. The Diocesan law firm of Egan, Flanagan & Cohen should be replaced.

4. Throw away the Diocesan Playbook which enthrones corporation sole above all else. The Diocese should abandon corporation sole and move toward a federation of individually incorporated parishes and institutions.

3. The Catholic Observer should apologize for its slanted coverage about the settlement to the parishioners and to the Catholic Press Association. It should embrace professional journalism with a renewed commitment to the truth.

2. First, the Diocese should award the latest round of victims additional money to achieve parity with the victims of the first round.

Then, non-monetary demands for victim's rights should be embraced by Bishop McDonnell, especially:

a. - The Bishop should announce that he will not enforce the confidentiality provisions of any prior agreement with a sexual abuse claimant who now or in the future desires to make his/her claim public.

b. - Diocesan representatives should not refer to plaintiffs or other tort claimants and their claims as “alleged” victims, “alleged” survivors, or “alleged” claims.

c. - A list of credibly accused priests who worked in the Diocese should be placed on the Diocesan web site and kept there.

d. - The Bishop should publicize laicization procedures, and publish information about the following defrocked priests of the Diocese: Ronald Malboeuf, Richard Lavigne, Richard Meehan, Alfred Graves, and Edward Kennedy.

e. - The Bishop should disclose specific supervision and support plans for each credibly accused priest to assure safety in neighborhoods where these priests are living. (SNAP estimates that there are roughly a dozen such men living throughout the diocese among unsuspecting neighbors and getting little or no supervision.)

f. - The Bishop should publicly support statute of limitation reform by CORSAL, or explain why he believes it is not worthy of support.

g. - Diocesan financial reform should include:

1. yearly net worth statements in addition to operating budget statements
2. openness and transparency about payments to Bishop Dupre
3. openness and transparency about the "Clergy on Involuntary Leave" category
4. openness and transparency about the "Child Protection" category; for example, Bishop McDonnell should explain why he feels that payments to lawyers and payments for civil settlement costs qualify as "Child Protection"

and...........

1. Bishop McDonnell should establish a truth commission to end the silence about Bishop Thomas Dupre and work toward his rehabilitation within the Christian community.

Chapter Nineteen: Q & A, Revisited

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(these Q & A are taken from the July 11 article in the Catholic Observer; Mr. Egan's comments are in italics)

Q. Why did the Springfield Diocese sue its insurance companies?
A. …..after the 2004 settlement was announced, new claimants came forward. The diocese was unable to proceed to resolve these claims until its dispute with the insurance carriers was resolved.

The claimants that Egan refers to were 20 in number but they were not new. All were pending when the $7.75 million settlement for the 46 consolidated claims under Attorney Stobierski was announced, see Springfield Republican of Aug. 17, 2004. It's never been explained why the consolidated claims were honored but not the others.

The leftover claims grew to 30 by the time of the insurance suit in June of 2005, and to 61 by the time of the 2008 settlement. Bishop McDonnell was not unable to settle the leftover claims, but he was unwilling. There is a difference.

The Diocese, like many corporations, has funds for a rainy day. On Nov. 15, a portfolio of $30 million was referenced in a story in the Springfield Republican. Almost certainly, far more is available. We don't know the true amount of Diocesan assets because it's hidden from the laity.

Q. What happened in the lawsuit?
A. The insurance carriers investigated all the pertinent records of the diocese (80,000 pages) and took sworn testimony of multiple diocesan officials and witnesses outside the diocese. The diocese took sworn testimony from representatives of each insurance carrier. This "discovery" process took several years. At the same time, a Hampden County Grand Jury was reviewing the same records and taking testimony under oath from officials of the diocese.
On Sept. 27, 2004, the District Attorney announced that the grand jury had completed its investigation and found no evidence of knowledge of sexual abuse, no evidence of destroyed records, or a cover-up on the part of the diocese..….

Most of these statements are not true or amount to fact-fudging.

The claim is made that 80,000 pages were examined by the insurers', but nowhere does this figure appear in the court papers. But, the figure of 80,000 often appears in accounts of the 2004 grand jury investigation of Bishop Dupre.

Egan often conflates one with the other, even though the number of papers, objectives, timing and personnel of the investigations are different. The insurance trial did not begin until June of 2005, some 9 months after the grand jury inquiry had ended.

The 2004 grand jury did not absolve the Diocese, as Egan claims, because that was not their function. Their charge was to gather evidence against Dupre.

They found enough evidence to charge Dupre with 2 counts of child rape. The DA said that they did not find chargeable evidence that Dupre had personally destroyed documents, obstructed justice, or tampered with witnesses – but said nothing about the Diocese.

It is a marvel that Attorney Egan appears to be the only one who still doesn't get it. The Washington Post, the AP, the Boston Globe and the Springfield Republican all reported that the conclusions of the grand jury related to Dupre, not the Diocese.

Q. Why did the diocese settle for less than it paid?
A…… one of our major carriers was insolvent…..the diocese, out of concern for the victims, agree to waive the charitable immunity cap of $20,000 and not assert any statute of limitation or other legal defenses. This was a pastoral decision made by the bishop, and the insurance carriers were not bound by it. Finally, by settling now, the diocese was able to spare the claimants from undergoing depositions conducted by the insurance company lawyers.

This pack of statements are not true. They imply that the Diocese was giving away the store for altruistic reasons. That was hardly the case.

Home Insurance Co. was declared insolvent in June of 2003. The Diocesan response at the time was to petition the court to delay five lawsuits. Soon, the MIIF (Massachusetts Insurance Insolvency Fund, a state agency) stepped in to cover the liabilities of Home. The Home insolvency was a complicating factor, but not for the reason that Egan suggests. The MIIF proved to be an especially tough negotiator during pre-trial hearings.

During the trial, additional carriers became liable. Three long-forgotten policies turned up during the discovery process. Two of these policies (from American Home Assurance Co. and National Union Fire Insurance Co.) were ordered by the judge to 'drop down' to provide primary coverage on Feb. 11, 2008. Thus, at the time of settlement there were at least five companies liable for damages. There is no connection between the ability of the carriers to pay and the decision by the Diocese to settle for less than it paid out.

The concessions referred to (suspension of SOL, waiving charitable immunity, etc.) were not pastoral decisions, but rather carefully crafted deals. The limit on charitable immunity is $20,000, a measly sum under the circumstances, and the victims wisely pushed to have this threshold set aside for the more egregious cases.

The SOL suspensions were part of the tolling agreements dating from January of 2005. The tolling agreements permitted the second wave of victims and the Diocese to set their arguments aside while the insurance trial was being fought. In return for suspending the ticking clock of the SOL, the Diocese got to remove their name from the lawsuits (leaving the names of the accused priests) and got a respite from the pending claims.

The tolling agreements bought time for the victims. Without them, their claims would have lapsed during the three-year trial. The Massachusetts SOL is three years from the time that victims realizes their injuries can be traced to past abuse.

The SOL defense has nothing to do with the amounts of the awards for the second wave of victims, since the Diocese had already waived it. If the Diocese paid awards during the first wave to those whose SOL rights had run out, that might qualify as "pastoral".

But, the Diocese negated that possibility by demanding the full reimbursement of $7.75 million, plus court costs, throughout the trial. See Paper 111.1. If the "pastoral decision" referred to by Mr. Egan was forced by the terms of the settlement, then it cannot be considered either pastoral or a decision.

Egan expresses great compassion and solidarity with the victims, but these attitudes are suspect. During the trial, the Diocese and the victims were often opposed. For example, the victims opposed the "protective order", a key Diocesan strategy. They also opposed the Diocesan petition to have impounded documents from the 2004 grand jury favorable to the Diocese unsealed (see Paper 89, pg. 11). In these matters the victims supported the insurers' lawyers, not those of the Diocese.

The statement about depositions is not true. The deposition of victims by insurance lawyers was prohibited by the Scheduling Order for Discovery (Paper 63), about a year into the suit. It remained a bargaining chip and was subsequently mentioned by the insurance lawyers. However, in Paper 111.1, we learn that the insurers have agreed to skip depositions, in exchange for written information.

It was Attorney John Stobierski, lawyer for the claimants, who successfully resisted attempts to reintroduce victim depositions, not Attorney Egan. See the Springfield Republican of Oct. 26, 2007, when an announcement was made about the final agreement to substitute written questions for the depositions.

The Diocese demanded the full $7.75 million reimbursement, plus attorney's fees, throughout the trial, and yet caved at the last minute for a reimbursement of $3.5 million. The Diocese (and Mr. Egan) have yet to explain why they settled for $4.25 million less.

Q. Where will the settlement proceeds go?
A. …..claimants will be offered an arbitration process, which will permit recovering between $5,000 and $200,000 as determined by Commonwealth Mediation…..those who elect not to go into arbitration will be free to pursue their legal claims in a court of law, and the diocese will defend those claims with any lawful defense.

Nowhere in these answers do we learn that the offered amounts for the "process" were determined by Bishop McDonnell. The insurance companies provided reimbursement, and the mediation service provided distribution. Mr. Egan is hiding the fact that McDonnell low balled the victims.

After the dust settled, the average award of the second wave was $76,000. The average award for the first wave of victims had been $168,478. Although $5 million was allocated for the second wave, the mediation service held the awards to $4.5 million – so the remaining $.5 million went to the Diocese. Confidentiality agreements prevent us from knowing much more about the process.

Egan's statements show how the settlement game is played. Those who opt into the process gain the money, but lose their right to sue. Those who don't participate lose the money, but retain their right to sue.

This proves that the Diocese never gave up its legal defenses, unless it got something in return. Church officials made their decisions based on cutting their losses. In other words, they displayed typical corporate behavior.

Q. Why do you think the insurance carriers settled now?
A. ….. in my judgment, the carriers came to the same conclusion as the grand jury: that this terrible abuse was done in secret, and that the victims were coerced by their abusers to keep the abuse secret for years….

This is grandstanding. Mr. Egan continues to argue the case here that he lost in court, except that now, confidentiality agreements are in place.

It's convenient for Mr. Egan to say that the insurers were converted to the same viewpoints that Mr. Egan holds, now that they cannot answer back. But, throughout the three-year trial, the carriers never gave a sign that they accepted Diocesan claims.

It's equally convenient for him to pretend that the conclusions of the grand jury mirror his own, now that they have disbanded. But, the record shows that the grand jury come to no conclusions about the Diocesan role in sexual abuse. Their charge was to examine the actions of Dupre, not the Diocese.

_____

If we apply the Diocesan Playbook to Mr. Egan's Q & A, we find that the Diocese claims they were forced into the settlement (a decision made by not making a decision). Although Mr. Egan avoids responsibility by claiming"pastoral decisions", it's hard to find decisions that are not forced or strategic.

Even after a loss of $4.25 million, church officials try to hide the reasons for the loss. They also withhold information by insisting on confidentiality agreements to protect themselves, even though the Dallas Norms specifically called for an end to such measures.

The Diocese does not apologize for lowballing the victims, or for its past behavior as employer, or for maintaining its secrecy. On the contrary, it loudly proclaims its innocence, despite considerable evidence to the contrary.

The shortfall of $4.25 million strongly suggests that the Diocese was indeed negligent – and that a trial would have made this plain.

Chapter Eighteen: The Top Ten Lessons

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10. The Diocese cannot assert privacy and due process rights on behalf of priests - only the priests can do that.

9. The Diocese has a normal employer-employee relationship with priests.

8. Representatives of the state can't interfere with church decision-making - but, they may examine it.

7. If the Diocese wants to protect secret documents in a court of law, they must show why this is necessary.

6. "Corporation sole" exposes the assets of parishes to the claims of creditors of the Diocese – and vice versa.

5. Under civil law, the Springfield Diocese is a corporation - it is not a subsidiary of a larger group.

4. The Diocese has ignored Dallas Norms 3 and 7 about confidentiality agreements and open and transparent communication.

3. The Catholic Observer has consistently misrepresented the truth of the settlement to the parishioners of the Diocese.

2. The Diocesan law firm of Egan, Flanagan & Cohen should be replaced because they have placed secrecy above justice, and..............

1. The number one lesson of the settlement is that the purpose of the church, which is the salvation of souls, has been severely compromised by the conduct of Diocesan leaders during the $8.5 million settlement.

_______________________________________________

10. The Diocese cannot assert privacy and due process rights on behalf of priests – only the priests can do that.

See: Paper 69, pg. 22, Paper 77, pg. 9.

The Insurers' argued two points: that the Diocese was not a person, and therefore could not uphold the rights of the priest; and, that the heinous nature of the allegations overrode a nominal right to privacy. They were upheld.
In Paper 77 the judge did not address the question directly, but answered it under the "psychotherapy-patient" privilege that the Diocese was also trying to assert. He ruled that the Diocese was not the patient, and therefore could not assert privacy rights of the priest on his behalf.
I find this decision important because the vow of obedience is sometimes used as a cover for inaction. The laity have a right to wonder, why are priests so quiet? Why have they not broken ranks with bishops, even when their own rights have been trampled?
It is past time for priests to assert their rights to due process and to their own opinions. They have baptismal rights and civil rights that are just as important as the desires of the bishops for a compliant work force.
_____
9. The Diocese has a normal employer-employee relationship with priests.

See Paper 62, pg. 5, Paper 73, (not paginated), pp. 7-8, Paper 77, pg. 5.

The Diocesan arguments that somehow priests were the equivalent of "super-employees" not subject to civil law did not hold water. Those in pp. 7-8 of Paper 73 are particularly lame. They plead for an exception, without showing any validity for an exception. The judge wisely held the Diocese to the same minimum standards that any corporation has toward its employees.
It's probably true, as church officials sometimes claim, that the incidence of sexual abuse among clergy is not much different than among bank tellers, or stock brokers, or teachers. But, the difference is that banks, stock exchanges and schools did not systematically protect their employees from the consequences of their actions, and the Roman Catholic Church, including the Diocese of Springfield, did. Also, children regularly conflate religious leaders with God; an entirely different dynamic that that at play in public schools.
To this day, there has been no bishop who has been disciplined – in any way, shape, or form – as a result of the crisis.
_____
8. Representatives of the state can't interfere with church decision-making - but, they may examine it.

See Paper 77, pg. 6.

The Diocese claimed, using many of the arguments of the Talbot case, that an examination of church decision-making during the discovery process would directly interfere with religious belief and thus have a "chilling" effect on it. The judge thought not. He wrote that the mere examination of decision-making did not have much to do with what the church thought or did.
Instead, he found that the examination of chancery papers, especially the personnel files of priests, was an acceptable way for the defendants to find out "…when and what the Diocese knew about the sexual abuse claims in order to bolster their defense…"
The appeal judge agreed. She 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]."

_____
7. If the Diocese wants to protect secret documents in a court of law, they must show why this is necessary.

See Paper 77 (Judge Agostini's decision) and Paper 89 (Judge Duffly's affirmation), and Paper 86 (rejection of protective order).

The laicization files were those most bitterly fought over. This consisted of at least five large files (Ronald Malboeuf, Richard Lavigne, Richard Meehan, Alfred Graves, and Edward Kennedy), and perhaps more. I suspect that somewhere in these files there was a smoking gun that explains the reduction of the reimbursement from 7.75 million to 3.5, or, at the least, had a substantial effect on the reduction.
But, there were many types of documents that the Diocese sought to protect. Sometimes, this was allowed, as in the work-product and attorney-privilege issues. Perhaps its revealing that the closer the documents got to secular correspondence, like attorney-client, the more likely they were to gain protection.
The frantic attempt at a "protective order" after the laicization documents were ordered to be produced was probably doomed from the start. It was deemed an "impoundment order dressed as a protective order" by the motion judge and fared no better when the Diocese addressed a petition to the appeal judge, who found the petition a "…collateral attack on the trial court's denial of its motion…" for the protective order.
The Diocese had no luck in convincing judges that its privacy rights were more important than the victim's rights to be safe from harm.
The appeals judge, quoting from the Leary v. Geoghan decision, wrote that "In view of the legitimate public interest in the issue of sexual abuse of minors by priests, it is difficult to '…conjure up an argument that would persuade a reasonable person that many of the issues raised in these cases and their underlying discovery documents do not lend themselves to public scrutiny…'"

_____
6. "Corporation sole" exposes the assets of parishes to the claims of creditors of the Diocese – and vice versa.

I have argued elsewhere that the number one priority for the Diocese is: protect corporation sole (see Chapter Seventeen: The Diocesan Playbook). This priority explains their legal strategy, including the insurance trial, better than anything else. And yet, the way that corporation sole works is not widely known, even within the church.
The defense that individual weekly donations to the parishes have nothing to do with the costs of the insurance settlement has been a persistent theme of church officials. Likewise, the "central funds" in Springfield are said to differ from other pots of money. And, it is said that "all of the settlement costs are paid for from insurance". Yet, these assertions are easily discredited.
A research paper explains that under corporation sole there is really only one pot. See: The Bishop's Alter Ego", by Bainbridge and Cole, UCLA, online at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=901663
Under corporation sole, the assets and liabilities of the parishes and other units of the diocese become inextricably linked. On pg. 13 we find that:

…The Church, as a matter of doctrine and canon law, is composed of numerous united but distinct entities, subject in varying ways and degrees to ecclesiastical control. Each separate entity possesses rights (including rights of ownership) that are enforceable, under church law, against the other entities. The assets of the Catholic Church, under canon law, thus do not belong to a single owner. Instead, Church assets “belong to many owners: the Apostolic See, individual dioceses, institutes of consecrated life, societies of apostolic life, parishes, other public juridic persons, private juridic persons, and natural persons individually and in association.” Accordingly, centralization of “ownership and control of all church property within a diocese is contrary to the law of the Church. ”, according to the New Commentary On The Code Of Canon Law by Beal, et al., 2000.

And on pg. 14:

" ...First, and most crucially, it is impossible to square the use of the corporation sole with canon law… 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 part of this quote is from pg. 1457 of the "New Commentary on Canon Law" (2000) by Beal and others, a standard guide to interpreting canon law.
In view of this, any bishop would have a hard time keeping the diocese together under the threat of millions of dollars of liability, which is one way to look at the sexual abuse crisis. The fear of trial by jury is probably what led Dupre and other bishops to prefer mediation and settlements. Settlements always result in less cost to the diocese. Other advantages are the preservation of secrecy and the appearance of propriety.

The true cost of the settlement is therefore a matter of concern to all parishioners, not just chancery accountants. Much of it is not covered by insurance. The Diocese expended $7.75 million for the first round of victims in 2004, an average of 168,478 per victim, and got reimbursed 3.5 million in 2008, after the bruising 3-year insurance trial, leaving a loss of 4.25 million.

The next thing to happen was that 5 million of the insurance settlement (remember, the total settlement was 8.5 million) was earmarked for the second round of victims. But, for reasons that have not been explained, only 4.5 million went to the 59 victims, an average settlement amount of 77,203. The other .5 million was put into the chancery treasury.

If we take the .5 million as a credit, then the loss of 4.25 million comes down to 3.75 million.

To this loss must be added the lawyers' fees specific to the settlement, found under "Child Protection" in annual reports:

Civil and Canonical Fees

2004     354,948
2005     209,328
2006     101,616
2007     229,000
2008     366,218
2009     161,013

subtotal 1,422,123

The 2004 diocesan report by Laura Reilly included these figures for Jan. 2004 - Jan. 2005:

payment for priests counseling 112,452
payment for victims counseling 145,470
subtotal     257,922

Also, there was an initial grant for future counseling to Behavioral Health Network in 2004 of $50,000. It is not known if this is a recurring annual expense.

totals: 3,750,000 + 1,422,123 + 257,922 + 50,000 = $5,480,045.00

Thus, the reimbursed cost to the Diocese of the sexual abuse crisis, so far, is nearly $5.5 million.

This is a conservative figure because it does not include the first settlement for 17 victims of Richard Lavigne in 1993, confidential settlements that have not been disclosed, benefits for Bishop Dupre, and the "clergy on involuntary leave" category of the annual report.

This last item was $676,705 for the period 2004-2007, 135,686 for FY2008, and 120,433 for FY2009.

When the total of this last category (932,824) is added in, and the continual counseling for both priests and victims since 2004 or so, and the support for Dupre, which as far as I know appears nowhere, it is quite clear that the monetary cost must be at least 10 million and is very likely far greater.
_____
5. Under civil law, the Springfield Diocese is a corporation - it is not a subsidiary of a larger group.

See Paper 62, pp. 5, 6, Paper 77, pg. 7.

The Diocese pretends that the canonical Diocese (the one sanctioned by Rome in 1870) and the legal Diocese (created by the laws of Massachusetts in 1898) are the same, and tries to exploit their combined rights in pursuing its objectives.
The insurance trial found a narrower role. The judge ruled in Paper 62 that the Diocese of Springfield is not a subsidiary of a larger group (the Church of Rome). In Paper 77, addressing the privacy area, he held that " …privacy mandates by ecclesiastical authorities are not, standing alone, binding on this court."
Instead, he found that the Diocese was a corporation subject to the laws of Massachusetts. This ruling undercut the "alter ego", trade association, and subsidiary/corporation analogies put forth by Diocesan lawyers.
The judge said that "…nothing in the record supports an inference that the dioceses stand in an organizational relationship to each other such that one diocese's liabilities directly affect those of the other dioceses, in contrast to the relationship between parent and subsidiary companies…"
The Diocese is accountable to U. S. citizens through civil law. It is also accountable to both parishioners and the Vatican through canon law. The affiliation with Rome, though true theologically, cannot be used by a Diocese to cover up criminal activity, or to encroach where it should not be.
This was a good ruling because it reinforces that the Diocese is accountable for its actions.
_____
4. The Diocese has ignored Dallas Norms 3 and 7 about confidentiality agreements and open and transparent communication.

Stories of the survivors have not appeared in the press in the wake of the settlement, and there is only one reason I can think of: that such truth-telling is prohibited in confidentiality agreements that Diocesan lawyers forced on the victims as a condition of settlement.
It is remarkable how little coverage of the settlement has appeared in the Catholic Observer, the official newspaper of the diocese. It falls far short of what was supposed to happen, according to the Dallas Norms.
Shortly after the 2004 settlement, Stobierski commented: "The Dallas norms set forth the fact that these settlements will not be done in secret any longer. To that end, my clients want the names of priests who allegedly abused them made public".

ARTICLE 3. Dioceses… will not enter into confidentiality agreements except for grave and substantial reasons brought forward by the victim/survivor and noted in the text of the agreement.
ARTICLE 7. Each diocese… will develop a communications policy that reflects a commitment to transparency and openness. Within the confines of respect for the privacy and the reputation of the individuals involved, dioceses… will deal as openly as possible with members of the community.

Openness and transparency across the board is called for. And yet, if you go to the Diocesan web site right now (www.diospringfield.org) you will find nothing about the settlement. It is as if it had never happened. It's clear that publishing a list of credibly accused priests is just about the last thing on the mind of Springfield officials. In fact, they claim it is illegal, though the Archdiocese of Chicago seems to be able to pull it off.

But, since this type of disclosure is certainly encouraged, if not mandated, by the Dallas Norms, why did the Diocese not follow suit, and publish such a list in 2004? Why did no information about the 2004 settlement get posted and remain on their web site? And why has the Diocese not used their web site to publish information about the 2008 settlement, and list the accused priests?

Sometimes it's hard to demonstrate why confidentiality agreements are so important. Don't the victims deserve privacy? Certainly they do, as much as they want and need. But, we need to remember that the claimants were not the parties. It was the Diocese that sued the insurance carriers. The Diocese and the insurers fought it out over who should pay, leaving us with a cash settlement that will resolve the legal claims of the victims.

But, masking the terms under which the legal fight was resolved has nothing to do with the privacy of the victims. On the contrary, it has everything to do with the privacy of the Diocese and its insurers - both of whom should be reporting to parishioners.

The problem is, once the suit is settled, it's not easy to know how and under what conditions it got settled. This is why the Dallas Norms stipulated that confidentiality agreements in settlements should be confined to protecting the victims, and not used to protect bishops and institutions. Unfortunately, management at the Diocese of Springfield has apparently chosen to do that very thing. One of the 59 claimants of the 2008 settlement has confirmed that the confidentiality agreements that all were forced to sign amounted to no less than 16 pages.
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3. The Catholic Observer has consistently misrepresented the truth of the settlement to the parishioners of the Diocese.

A regular reader of the Catholic Observer or a visitor to the Diocesan web site will find virtually no trace of the scandal that has consumed over 14 million dollars, 5.5 million of it reimbursed. The fallout includes over 50 credibly accused priests, more than 100 victims, a time span back to the Eisenhower era, and yet – it is as if it had never happened. And, as time marches on, this void seems more and more like a plan.

The Catholic Observer is important because it presents the story of the Diocese in the form of news. The Observer has the same journalistic criteria of any respectable news organization. It also subscribes to the code of the Catholic Press Association (CPA), which states:

"This Code follows certain moral principles. Truth must be the cornerstone of all our work. Pursuit of the truth will lead to the Truth that is God. So telling the truth must be our first priority…any breach of this prime directive hurts ourselves and other people, sullies reputations, damages the credibility of our publishing institution and the Church."

A search for truth demands that we notice the local story that is not there, but should be, just as much as we notice the existing local stories about bake sales and 4th grade field trips. Just because a story is placed by church authorities, that does not mean it always rises to the level of news. It is not enough for the Observer to carry stories from the CNS (Catholic News Service, a creation of the USCCB) about "Milk Grottos" and pilgrimages. It is also not enough to print an unending stream of press releases from the Vatican. The Observer is called to a higher truth which involves sifting stories to be sure they are comprehensive, relevant and proportional.

Because the Catholic Observer has not lived up to these ideals, it is the subject of a formal complaint to the CPA. There are many signs of bias in the Observer's reporting, particularly that of staff writer Rev. Bill Pomerleau. The complaint alleges that the Observer's coverage of the $8.5 million settlement has been untrue.

For the last several years, the settlement has been the elephant in the pages of the Observer. Yet, it is almost never mentioned. And when it is mentioned, fact is intermixed with opinion.

I mention only one particularly egregious example, "Springfield Diocese Offers All Its Abuse Documents To Insurers" from the issue of Feb. 2, 2007. This article appeared shortly after the court order which effectively ended the attempt by the Diocese to shield 7,700 pages from discovery. It was an important turning point, but those looking for real news were disappointed.

Contrary to the headline, not only did the Diocese not offer the insurers' all of its abuse documents – it did the opposite. It continued to withhold most of the documents, in direct violation of the Jan. 3 court order.

This article is shot through with the legal points and arguments of Egan & Co. and is nothing more than an attempt to re-argue the case in print after the arguments had been found wanting on Jan. 3. In so doing the author and the editors displayed a shameful disregard for the truth.

The article states that "… He [Judge Agostini] is expected to rule on whether the second group of documents….should be given to the insurers…" without informing the reader that the judge had already ruled on the matter.

Readers of the Observer were entitled to learn what was going on in the trial without any tilting of the playing field toward either the insurers or the Diocese. Instead, the readers got a rehashing of the legal team's efforts to thwart the court order to produce documents. None of the documents ordered produced were found to be "privileged" by the court on Jan. 3, yet Egan, in the legal court, and the Observer, in the court of public opinion, clung to this position.

These acts of defiance in twisting the plain meaning of words is unworthy of any publication, especially one that purports to hold the Truth especially dear.

Throughout the three-year insurance trial, it is doubtful that a single letter to the editor, editorial, or commentary can be found on the trial issues. At least, none were found in a review. This is quite remarkable, considering the high stakes involved. It is as if this organ of communication has become paralyzed.
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2. The Diocesan law firm of Egan, Flanagan & Cohen should be replaced.

See Paper 77, pg. 5, Paper 86, pg. 4, 8.

It's clear from studying court papers that the Diocesan legal team was not up for the match. The Diocese lacked a plan and fought a stubborn rear-guard action, even though it was they who initiated the suit. The strategy appears to have been based on denial, and, as the judge noted, "sweeping statements" and "declaratory assertions" rather than facts.

But even assuming that the Diocese was outmatched, it's more difficult to understand why they were not prepared for the litigation.

For example, if the suit was filed in June, 2005, after almost a year of growing resistance on the part of the insurers, and if the discovery was ordered to conclude by Oct., 2006, why, over this nearly two-year span, was the Diocese unable to come up with a single document for the insurers? What could explain this extraordinary delay, other than the argument made by the insurers, namely, that the delay was a deliberate strategy?

It's odd that having provided 80,000 documents only a few years before, in what must have been a Herculean effort at locating, reviewing, copying, and collating, that the Diocese really had such a hard time producing the documents a second time. Diocesan lawyers consistently acted as if they were burdened with an sudden and overwhelming task (though, again, it was the Diocese who had initiated the suit). It strains credibility to the breaking point (mine, anyway) that they were unable to produce even one document before the Emergency Motion to Compel was filed.

The firm's defense of the so-called "privileged" papers, the core of the litigation, was hapless. The several prongs of defense were largely based on the Talbot case (Jesuits v. Mass.), but, in the end, practically all of the 7,700 secret papers had to be turned over, including such items as unpaid bills, an undated newspaper article and a FedEx airbill. Even the one clause of Talbot that won in the original case turned out to be a loser for the Diocese. See pg. 8 of Paper 89.
The legal team was even lectured by the appeals judge for completely missing arguments in their own favor. See the "anticipatory breach" argument cited by Judge Duffly in Paper 89. Pg. 4.

Egan's campaign to get Nixon Peabody thrown out was equally embarrassing. There proved to be only 2 attorneys that were members of the NAAD out of the 600 or so attorneys employed at Nixon Peabody. Egan couldn't even get the acronym of the organization right (as the judge wrote, the proper short form of the National Association of Attorneys of Dioceses is NAAD, not NADA).

If you try and find the NAAD on the internet, you will soon come to the conclusion that it is anything but a powerful organization poised to strike terror into the hearts of progressive Catholics. On the contrary, it hardly seems to exist at all. And nothing during the trial dispelled this impression.

The more we learn about the Nixon Peabody campaign, the weaker Egan's arguments appear. Neither lawyer had used the list serve for discussions of sexual abuse, one of the core issues that Egan complained of. Also, neither man had been at NAAD conferences to discuss the supposedly critical legal strategies about staving off liability claims from victims of sexual abuse.

All of this leads to the conclusion that the Nixon Peabody dismissal effort was designed mainly, if not solely, to frustrate and delay the forward movement of the case. Thus, far from Nixon Peabody "…holding our case hostage…" as Egan claimed, the reverse was true.

See the "Diocesan Playbook" chapter for other reasons why Egan, Flanagan & Cohen, the law firm for the Diocese since around 1950, should be replaced immediately.

and..............

1. The number one lesson of the settlement is that the purpose of the church, which is the salvation of souls, has been severely compromised by the conduct of Diocesan leaders during the $8.5 million settlement.

Chapter Seventeen: The Diocesan Playbook

2009-04-15T11:48:00.000-07:00

"It would mean a great deal if [McDonnell] cleaned house. He needs to take the responsibility of showing he treats survivors who come forward as doing a service to the diocese and not as enemies." - Peter Pollard, March 10, 2004, member of SNAP (Survivors Network of those Abused by Priests).

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Bishop McDonnell has not exactly treated victims as enemies – but neither has he embraced them. Instead, he seems content to watch as the victims, their concerns now "settled", once again recede into a shadowy past.

For example, he has not responded to the non-monetary demands of the victims which Mr. Pollard presented in December, 2008. And, in the yearly review of important stories in the Catholic Observer, a story of some 3,000 words, the $8.5 million settlement rated only about 50 words – the same amount of space covering a supposed apparition of the Blessed Virgin Mary in a damaged window at Mercy Hospital.

Despite Mr. Pollard's hopes in 2004, a review of Bishop Timothy A. McDonnell's actions shows that he did not clean house. The same chancery officials that surrounded Dupre for his 9 years in office (Sniezyk, Liston) the same lay advisors (Schuman, Egan) and the same media crew (Dupont, Pomerleau) continued, and continue essentially unchanged today.

Observers of entrenched bureaucracy will recognize the phenomenon. Some governmental offices can be revisited after a span of five or ten years, only to find that the same people and thought processes are still at work.

And so, corporate life goes on, uninterrupted, in the offices on Elliot St. The chancery continues to be legalistic in intent, defensive in posture, and deadly serious in outlook. Hardball is the rule.
While the Catholic Observer is supposed to be a window on the doings of the people of the Diocese, it is hard to find a story that does not relate directly to the official running of the Diocese, and impossible to find one that does not portray administration in a favorable light.

Regarding the settlement, McDonnell has succeeded in turning the backlogged lawsuits of the Dupre era into slightly over 100 settlements – but these have come at considerable cost. The unreimbursed amount that the Diocese has spent to date is more than $5.5 million.

More important, the continuation of Dupre's legacy has contributed to a grave loss of trust. Many view the Diocese as a polluted vessel. In the next few posts, we examine the rules of the game in the Springfield Diocese, those that constitute the Diocesan Playbook.
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The Playbook has only one goal:

1. protect corporation sole.

In order to do this, the Diocese employs many tactics: we concentrate on four:

1. maintain position
2. make decisions by not making decisions
3. avoid responsibility
4. withhold information

We'll look at how these tactics have been used in the Dupre and McDonnell administrations.

But first, a word about the goal (protect corporation sole).

The "Springfield Diocese" is really two things. One is the canonical entity sanctioned by Rome in 1870. The other is the legal Diocese created by the Commonwealth of Massachusetts in 1898. We donate money and property to the legal Diocese and trust them to use it for the goals of the canonical Diocese.

The canonical Diocese is the one that includes all parishioners and clergy as the People of God, organized into a "particular church". It guides our faith, provides solace for the human condition, and challenges us to find a place for redemptive suffering in our lives. The canonical Diocese is part of the communion of saints on earth. It is one with, and sustained by, Jesus Christ.

The legal Diocese is known as corporation sole. It is no exaggeration and not a sign of disrespect to address the Most Reverend Timothy A. McDonnell as the CEO of the corporation known as the Diocese of Springfield.

Though they have the same name, these two "Dioceses" are quite different. Even the standard reference work used by the USCCB, the "New Commentary on Canon Law", has grave reservations about how compatible "corporation sole" is with canon law.

Sometimes, the bishop's motivations for action stem clearly from the canonical side; other times, his deeds are just as clearly meant to enforce a business decision. Sometimes, it can be interpreted either way. I suspect that bishops like this ambiguity.

It should be clear that in this section we refer mainly to the business decisions of the Diocese, shown by their actions over the last twenty years or so. In my opinion, it is the Bishops' desire to protect and preserve corporation sole, at all costs, which has led to most of the tactics described here. All of the tactics are legal, but many are questionable on moral grounds. The tactics were largely instituted by Dupre, and have been carried forward, in a slightly different style, by McDonnell.

An interesting aspect of the $8.5 million litigation is that part of our attorney's argument in Paper 50 was that the Springfield Diocese was essentially canonical rather than civil. He described it as part of a larger unit, sort of like a franchise of a McDonald's. Mr. Egan also tried to extend the "specialness" of Dioceses to the association of attorneys that represent them. He argued that an adverse decision in Springfield would affect the legal prospects of all other U.S. dioceses. It's clear that he was trying to apply canonical reasoning as a way to avoid civil responsibility.

This was rejected by the judge. He ruled instead that the Springfield Diocese was a stand-alone corporation, responsible for its own actions.

He said that the Springfield Diocese had the same duty toward its employees (its priests) as any other corporation. The Springfield Diocese was not excused from normal obligations, even though in the canonical sense it does have a "special quality" that other corporations lack. This is but one illustration that the civil Diocese and the canonical one can be, at times, very far apart.

_____

When the first misconduct commissions were formed in the early 90's, the Times suggested that "…such a board might still leave final decisions to the cardinal, but it would report directly to him and not through the church bureaucracy." But soon, the commission in Springfield was doing this very thing, if by "bureaucracy" we include the chancery's legal department. This became especially clear during the toxic buildup of cases during 2002.

We've seen that it was the legal opinions of John Egan and others that caused the commission to begin refusing complaints if the victims had already filed suit. Increasingly, commission hearings took on the appearance of an armed camp. By fall of 2002 the new emphasis on litigation was spilling over into the Hampden County legal system.

Throughout 2003 Dupre attempted to throw suits out of court in many ways. His justification was that: "… we should not throw away our defenses, especially, those based on the First Amendment and the laws of Massachusetts…".

Clearly, by fighting the victims, he felt that he was living up to his role as head of the Diocese. What is not clear is whether he was acting on behalf of the corporate Diocese, or of the canonical Diocese. But whatever his motivations, his actions showed that he did not see the self-interest of the victims and the Diocese as compatible. Just as clearly, he was dead set against allowing the victims their day in court.

Then, he resigned.

At first, Bishop Timothy A. McDonnell was greeted as something of a savior. Within days of his appointment in March of 2004, he met with representatives of victims and seemed eager to solve the backlog of cases. With him came a significant change in personal style.

Dupre was a hometown boy made good. Though initially forced into the religious life, he grew to accept it. Dupre seemed destined to wear black, and had a gaunt, funereal aspect to him. His persona was that of a combative canon lawyer.

McDonnell, raised in the hothouse world of New York politics, looked larger than life compared to Dupre, with many more tools at his command. He charmed many during his initial appearances in Springfield, joking in a self-deprecating way that he was worried about getting lost on the road – that he might confuse North Adams with Northampton.

Yet, it's important to remember that during the transition period, McDonnell was under enormous pressure to solve the Diocesan crisis on both the canonical and legal levels.

In April, 2004, McDonnell announced that he wanted to disassociate the Diocese from a $100,000 fund set up by Dupre the previous Fall, funded by anonymous donors to aid indigent, defrocked priests, a fund that newly-defrocked Richard Lavigne would qualify for on May 1. However, a month later, the fund was still in place.

This delay led to public criticism by Rev. James Scahill. He urged the Bishop to dissolve the fund or put it outside Diocesan control. It has since become clear that Scahill had already criticized McDonnell about the fund in private, probably during meetings of the Presbyteral Council. Scahill was a member of this group of 18 elected priests who helped govern the Diocese.

The new Bishop blew up and retaliated. He stated at a council meeting that Scahill had done as much damage to the Diocese as Lavigne. He fired Scahill from the council. When word got out of the comparison of Scahill to a convicted pedophile, victims and parishioners were outraged. The bishop was soon forced to apologize.

Yet, he insisted in his apology that "The Presbyteral Council is meant to be an advisory group to the bishop, not an adversarial one." He characterized Scahill's statements as "personal attacks."

Apparently, Scahill's greatest offense was that he took his criticism public. McDonnell said that "…the public second-guessing of my motives has slowed the [healing] process and, in some cases, may have derailed it…" He did not explain how Scahill's statements had slowed progress.

He also said: "While we can disagree on the arguments, there is no way that an attack by a priest on his bishop does not have consequences…you don't do that and not have repercussions."

This rather blunt display of the command hierarchy would not be repeated. Ever since, McDonnell has taken a different tack. His public statements about abuse are few, invariably kind, and are reflective in tone, even somewhat naïve.

And yet, at the same time, the Diocesan newspaper, of which he is publisher, has on several occasions editorialized on the shortcomings of SNAP (Survivors Network of those Abused by Priests). One example, published at the time of the $8.5 million settlement, is here, in which the group is tarred as an "attorney-allied group". Another, a reaction to the Burlington damage awards, is here.

It's difficult to gauge McDonnell's motivations, partly because he avoids speaking publicly about controversial topics. A notable example was on July 2, when the $8.5 million settlement was announced. He was out of town and not available for questions or additional comments during that watershed event.

One might describe McDonnell's approach to governance as "passive-aggressive". He asked parishioners to speak out about parish reconfiguration – but then restricted the "listening session" participants to a selected few. He mandates councils for every parish – but then does not work with them, even when critical decisions are made. He expresses solidarity with victims – but then finds time to criticize SNAP and other victim's organizations.

In a memorable exchange in April of 2008, the mother of two young boys filed a lawsuit against the Rev. Aaron Cote. Cote was not a priest of the Diocese, but the alleged crimes took place in the Springfield area, and Cote had been assigned here in the past. SNAP held a press conference outside 65 Elliot St., pressing McDonnell for more outreach to victims through the Observer, parish bulletins or the Diocesan web site.

The only response from McDonnell was that he knew little about the family or their accusations. "They are talking about it but they are not sharing," McDonnell said of the Survivor's Network. "That's what makes it difficult."

Another recent example was when William Nash, a native of the Springfield Diocese, showed up at Elliot St. to ask for help in defrocking a known sex offender, the Rev. James Tully. Instead, in the words of a local priest, Nash was "…condemned and chastised…" by McDonnell, simply because Tully was not a Diocesan priest. This super-sensitivity to criticism, such that the appearance of propriety seems more important than the pursuit of justice, raises questions about McDonnell's priorities.

One of the positive differences between Dupre and McDonnell is that while Dupre made it clear that pursuing laicization for troubled priests was the last thing on his mind, McDonnell has not opposed it.

In Dec. of 2002, it was reported that Dupre was not seeking laicization for Rev. Koonz, Kennedy, Meehan, Graves, and Dube. Yet in 2006, when Meehan was laicized, we learned from the Republican that another "6 or 7" were also candidates. Indeed, later that year Edward Kennedy and Alfred Graves were defrocked, joining Meehan, Lavigne and Malboeuf. The Diocese has not explained why its web site or print media carries no information about defrocked priests, and why only cursory announcements are made. It's also not clear where the pressure is coming from to continue the defrocking program – from McDonnell, the U.S. bishops, or the Vatican.

The defrocking initiative is important because it generates a great deal of paperwork between the Vatican and Elliot St. This helps to explain why the insurance lawyers were so eager to see the cache of secret chancery papers during the recent $8.5 million settlement.

Other than questions of style, there's been a remarkable continuity between the policies of the two bishops, as reflected in the tactics which we now turn to.

The first point of continuity between the two administrations is the Diocesan law firm of Egan, Flanagan & Cohen. This law firm has been in place for over 50 years, spanning back to the Weldon administration. From all appearances, the legal strategy of John Egan, lead counsel, and the legal strategy of the Diocese are one and the same. Whoever has been calling the shots, the legal strategy of the Diocese has been highly questionable, because it has placed secrecy before justice.

Whatever the meaning of the dollar amounts of the settlements, which, if anything, are on the low side, the moral costs have been high.

We now move from the macro-level of the Playbook to how it's been used in both administrations. Many of these tactics overlap. But, they all contribute to a solitary goal – the protection of corporation sole.

Playbook Tactics:

1. maintain position
(we're broke; we're special; it's someone else's fault)

2. avoid decisions
(make decisions by not making decisions; stall; litigate)

3. avoid responsibility
(hide power; create layers to diffuse accountability)

4. withhold information
never admit guilt; never give up defenses; maintain secrecy)

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1. maintain position
(we're broke; we're special; it's someone else's fault)

The Diocese has a peculiar position, not easily maintained. It acts as if it's broke – and at the same time pretends it's rolling in money. This contradiction is hard to explain. Perhaps they think that half the Catholic population expects them to be dependent on the Widow's Mite, while the other half expects them to invest as wisely as other corporations. Whatever the reason, the financial facts are cloudy.

Yearly operating budgets show in-and-out cash movement, but are never supplemented by a net worth or balance sheet, something every household is familiar with.

In a press release announcing his decision to sue the insurance carriers, McDonnell stated that "…the resolution of these issues is necessary so that the Diocese can resolve outstanding, legitimate claims…" This ploy of making the pending claims dependent on the reimbursement for the settled claims was sharply criticized by attorneys for the victims, to no avail.

Although McDonnell insisted on other occasions that the well was dry, this appears not to be the case. In a Republican story from November 15, a portfolio of more than $30 million was referenced. It is hard to see how the Diocese was prevented from using this money to satisfy the claims that McDonnell says he wanted to honor.

When victims from the second phase complained to McDonnell that their average award of $76,000 compared unfavorably to the average award of $168,478 of the first phase, the response was not sympathetic. The Diocesan statement was that "our hands are tied" because the insurers only gave a certain amount. This defense ignores that Travelers and Aetna and the other insurance companies were not the ones who were responsible for the priests during the time of the alleged crimes.

The "we're special" argument pops up any time that the employer/employee relationship of bishop and priest is questioned.

In the Dupre era, in April of '03, Egan argued before Judge Wernick that "…in Catholic belief, the relationship of a priest to his bishop is different than that of an employee to a secular employer…". Over a dozen lawsuits were delayed by the argument.

The same point was recycled by Egan during the McDonnell era in Paper 73. He said the Diocese "…contends that its relationship with its priests is different than that of an ordinary employer. Priests are not ordinary employees. They are consecrated to the priesthood on a lifetime basis, absent the extraordinary step of laicization. The priests take vows in connection with their ordination. The relationship between the Bishop and the priests is a sacred one…"

In neither case did the argument hold water. In 2003 the Diocese was not able to throw the cases out, and in 2008 the judge found instead that the Diocese was subject to all the secular rules of law for an employee's behavior. The judge said that examination of documents about the bishop-priest relationship was proper, because it might lead to admissible evidence. Nor did examination of them infringe on church decision-making about the priest's employment.

In 2005 there was a fight over a new law that would have required churches to report yearly income. McDonnell claimed that the Diocese was "special" and needed to devote all its money to good works. Apparently, McDonnell doubted that filling out financial disclosure forms was a good work. He said that the burden of filing would cost the Diocese as much as $1 million dollars, because individual parishes would be required to file – though the bill's sponsor, Sen. Marion Walsh, said that only dioceses – not parishes – would be required to file the reports.

It was later learned that the $1 million figure was claimed by a lobbyist for the bishops group (the Massachusetts Catholic Conference). He made the claim during testimony about potential costs for the Boston archdiocese, not the Springfield Diocese.

McDonnell's position was that "…the bill is a violation of the First Amendment…" and he promised that if the bill was passed, the Diocese would join other churches in a lawsuit to prove that the new law was unconstitutional.

But, it was clear that the bill was about money and accountability – not religious belief. The purpose of the bill was the disclosure of financial information – a sensible requirement that other non-profits such as the Boy's Club, Girl's Club and Red Cross take for granted, and that donors appreciate.

The Diocese claimed that their "specialness" allowed them to criticize Representative Daniel Bosley in August of 2008. Bosley had suggested a moratorium to promote better decision-making about changes suggested for the Adams church community. The Diocese said that the First Amendment prohibited Bosley from commenting on church affairs. They said that he suggested "...a direct interference in a purely religious matter…". The Diocese did not explain how dialogue about administration of church property related to protected religious belief.

"It's someone else's fault".

The Springfield Diocese has a long enemies list, and keeps it updated. The "secular media" and other advocates of free speech are a favorite scapegoat. Letters to the editor, editorials, blogging, victim support groups, and even juries are blamed for church troubles.

The Diocesan annual report for 2006 noted that the "…staff of the Catholic Observer continues to produce a highly regarded and award-winning newspaper that serves to balance the many times sensational reporting on the Catholic Church found in the secular media..."

However "highly regarded and award-winning", the Observer may be in some quarters, it shows an unusual antipathy to free expression, even Catholic free expression. For example, throughout the three-year insurance trial, it is doubtful that a single letter to the editor commented on the trial issues. At least, none were found in a review. The only mention of the lay reform group "Voice of the Faithful" over the last few years was in an article gloating about the problems they've encountered.

An editorial in the Observer complained about the very existence of the internet. The writer admitted that "…the Internet has made it possible for Catholics to find reliable information about happenings in the church from a variety of sources…", but still concluded that "…we can't say it has made our job here at the Catholic Observer any easier…". Perhaps if the Observer communicated with parishioners by posting articles on their web site, it might help. Creating and publishing an email address for Bishop McDonnell might put him in touch, as well.

Sometimes, in finding fault, the Diocese switches horses. For example, in the Dupre era, the lawyers for the insurance company were allies. They worked on the same side of the table as the Diocese, and helped wear down the victims.

Then, about a year into the McDonnell era, the lawyers for the insurers broke ranks when they were sued. For the next three years, they were in opposition, across the table from Egan & Co.

Not surprisingly, once the insurers changed position, they became a target for Diocesan scorn. They were regularly blamed in the Observer for the leisurely pace of the three-year settlement trial, although if one took the trouble to look at the court papers, a different picture emerged. Study of the court papers shows that it was the Diocese that did most of the foot-dragging.

More proof that "it's someone else's fault" was provided in an interview with WAMC public radio in early 2009. The Diocese stated that since for the past 14 years there have been discussions about pastoral planning and church consolidations in the Berkshires that, "...clearly we have made our intentions well known…none of this should have been a surprise really to anyone who was paying attention all these years."

The implication is that if the disenfranchised parishioners of St. Stan's in Adams don't understand the decision to close their church, then they obviously weren't paying attention. Similarly, in recent months Msgr. Bonzagni, the official in charge of pastoral planning, defended the decision to close St. Stan's. He observed that if the participants in the "listening sessions" from St. Stan's did not use their time wisely, then that was not the fault of the Diocese.

In all of this we can see that the Diocese is not above blaming the victim in order to maintain position.

_____

2. avoid decisions
(make decisions by not making decisions; stall; litigate)

It's a peculiar trait of U.S. bishops that they would rather maintain the status quo and not make a decision than make a wrong one. This goes far in explaining how the sexual abuse crisis could have grown so large. The crisis required a creative and aggressive response from risk-taking chief executives, but instead was left to fester. Eugene Kennedy has explored this dynamic in his article for the National Catholic Reporter "The Great Inertia".

In Springfield, Dupre, the canon lawyer, was ideally suited to play the legal game of waiting it out – until the day that he himself ran out of time.

It was a point of pride for Dupre that his Diocese avoided trials. He said: "Although in other areas of our state, abuse cases have come to trial, none involving the Diocese of Springfield ever have. I hope to continue that record."

And he did. Even when lawsuits flooded the Diocese during 2003, where others saw a demoralizing situation, Dupre saw only "a complicated issue" and asserted that priests and laity were still "…standing with our head held high…". Springfield was the last of the four dioceses in the state to share lists of victims and accused priests with the local District Attorneys.

The stalling tactics of the Misconduct Commission started almost as soon as it was formed in Dec. of 1992. Many of the first complainants were dissatisfied with the commission's response. This led to the consolidation of cases under Attorney Wiggins, which led in turn to the 1993 settlement with 17 of Lavigne's victims.

As we've seen in previous posts, the commission kept a lid on cases by playing the "morality" card. First, the emphasis was shifted from justice and investigation to a vaguely defined "healing". The object of the commission's recommendations also shifted, from the accused to the accusers. Victims were told that retention of a lawyer could "complicate" things. They were asked to pray, forgive the priest, and move on.

These strategies deflected accountability while leaving church structure unaltered.

In the spring of 2002, a dead calm prevailed in the commission's docket. We've seen that by fall a victim's revolt was underway, resulting in a wave of lawsuits, many naming higher-ups for the first time. This assault prompted the Diocese to rely more and more on legal muscle.

And yet, at the same time, Dupre expressed distaste for legal scraps, and tried to distance the Diocese from them. For example, when he tried to throw out five suits based on charitable immunity, he called the move to dismiss the cases "…a legal maneuver, which [would] not interfere with financial compensation to all victims with legitimate claims." This rather remarkable statement doesn't take into account that the charitable immunity doctrine caps damage awards at $20,000 dollars.

Although Dupre never ceased claiming that his motivation in pushing for settlements was to give each case "the attention it deserves", he never explained why it was not possible for a victim's case to get the "attention it deserves" from a jury trial.

Nor did he give any hint why going to trial and clearing the name of the priests, assuming they were innocent, was never mentioned as an option. It seems not to have been on his radar. Apparently the self-interest of the Diocese and the accused priest did not always coincide.

In April, '03, the Diocese argued for dismissal of charges in the Dobbert case, one of those which named higher-ups on negligent supervision charges. The motion was clearly an attempt by the Diocese to insulate itself from the actions of its priests. Egan argued that the bishop's oversight of priests in his diocese is a matter of religious, not secular law.

When these lawsuits could not be thrown out or staved off, the result was the 2004 settlement, which had to be managed by McDonnell after Dupre's spectacular flameout. In retrospect, McDonnell's hand may have been forced because the Diocese had hit rock-bottom.

But, under his own steam, McDonnell has continued this tradition of stalling. He too, has worked so that no abuse claims have come to trial. His motto "healing on many levels", though certainly a graceful phrase, has meant in practice that over a hundred victims have forfeited forever their legal right to sue the Diocese. Confidentiality agreements of some 16 pages are still insisted on by the Diocese prior to any settlement, in violation of the reforms established by the Dallas Norms.

The final cost for the second wave ($4.5 million for 59 claims) now seems affordable, and maybe even a bargain, compared to other dioceses such as Burlington, in Vermont. There, $12.3 million was awarded last year to two individuals.

We said earlier that the self-interest of priest and diocese are not always the same, and that the Diocese has consistently avoided making decisions that would clear the name of clerics. A case in point is that of Rev. Karl Huller, who was accused after he died. Diocesan attorney Michael Callan admitted that clearing Huller's name was not an objective. "We are defending the diocese. Our concern is that the diocese didn't have knowledge of any abuse that may or may not have been committed," he said.

It is not generally known that the Diocese never pays for an accused priest's lawyer. "The Diocese has never represented any clergy accused of abuse. They have to retain their own counsel", said Michael McDonough, Jr., a member of Egan, Flanagan & Cohen.

Like Dupre, McDonnell has also preferred to settle. He does not fight suits targeting dead priests in order to clear their name. Neither does he encourage or allow the accused priests of the Diocese to fight suits, even when loud claims have been made that some of the accused priests are innocent.

Ironically, Dupre himself, the author of the strategy, has been thrown under the bus. He's become a non-person in the Diocese, an unmentionable man who does not appear on the web site, and who is not even prayed for during Sunday liturgies. The Diocese has done everything but airbrush his face out of group portraits.

On the legal fronts, McDonnell says that church accusations about Dupre have been "forwarded to the Vatican", and are no longer his responsibility. This avoidance may be canonically correct but the morality of it may still be questioned.

On the secular side, Dupre has retained two criminal defense lawyers, though it's not known who foots the bill. Perhaps we'll learn someday about how these decisions are made, but for now, the process remains well-hidden.

_____

3. avoid responsibility
(hide power; create layers to diffuse accountability)

When it came time for chancery bookkeepers to record the $7.7 million settlement in 2004, they faced a dilemma. The recording of it would wreck any existing account, yet it could hardly be left out of the annual report.

Putting a good face on the settlement must have presented a challenge. After all, the purpose of the deal was to protect the Diocese of Springfield by neutralizing lawsuits for sexual abuse. The settlement was nothing less than money for "priest protection" or even better "diocesan protection" but, it is not known if these names were seriously considered. What is clear is that the necessity to hide power and create layers asserted itself. The new account emerged in the next annual report as – Child Protection.

The new Child Protection budget of FY2004 included a sub-category: Civil and Canonical Fees. Though lawyers are not specifically mentioned , it's hard to see who else would be commanding these fees. The Diocese was certainly not being billed by the children. The total expenditure for Civil and Canonical Fees through FY2007 has been $894,892.

We've seen that the law was a refuge and a weapon for Dupre. Legal hairsplitting could be the path to a separation of the church's legal obligations from its moral ones. Indeed, the Diocese seemed willing to interpret the law to avoid oversight. In 2003, while trying to have a lawsuit dismissed, Mr. Egan explained that "…even if the Diocese acted irresponsibly in its assignment of priests, the law says that it cannot be held responsible for those actions."

The insurance lawyers, too, were practically an arm of the Diocese during the Dupre era. But, lawyers for the victims spoke up: "They are playing legal hardball and blaming it on the insurance companies," Attorney Stobierski said, after Diocesan lawyers asked for the dismissal of five suits after the bankruptcy of the Home Insurance Co.

The legal team of Egan, Flanagan & Cohen is only one layer of command that bishops employ to get the work done. Other prominent layers are communications (headed by Mark Dupont, assisted by Rev. Pomerleau), pastoral planning (headed by Msgr. Bonzagni), financial affairs (Mr. Schuman, recently retired, and Mr. LaBroad), to say nothing of the chancery offices of the Bishop's Cabinet, the educational sector, the cemeteries, and a host of ad hoc committees, all charged with carrying out the business of the corporation.

McDonnell has created a small army of ad hoc committees to help him govern. Many of these have recently dealt with the rearrangement and suppression of parishes. However, after the announcement is made that they've been formed, they're little heard from again.

It's been said that Weldon ran a tight ship, and that Marshall was no slouch either. It may well be that Dupre was just another in a long line of autocratic and isolated decision-makers who were surrounded by like-minded chancery officials. The Roman Catholic church is famous for such a top-down style.

Nevertheless, Dupre seems to have taken avoidance of personal responsibility to new lows. We cannot ignore that he's made no public statements confirming or denying the charges against him from three individuals.

Some public statements during his last two years in office suggest a man on auto-pilot, at times oblivious to the pain his words must have caused. He defended his decision to support Richard Lavigne by invoking Christian charity. He said that bishops are held to a higher standard and not allowed the "luxury" of a popular choice. His explanation implied that he had no choice in the matter.

This continues to be familiar language, because the Diocese often announces that it is "compelled" or "forced" to do things, when a secular understanding would be that they've made a choice to do this or that.

In Jan. '07, shortly after the judge's decision to compel the Diocese to release most of the 7,700 documents that were in dispute, attorney Stobierski commented that "…nearly every other diocese in the country has been able to negotiate these very same issues with their insurers…"

The explanation for the resistance by McDonnell shows a continuation of the Dupre philosophy. The reply was that "…the diocese felt it needed to be compelled by the court to disclose that information…"

Thus, we are supposed to believe that is the compulsion of the court that creates the Diocesan decision – an example of making a decision by not making a decision.

The Diocese sometimes uses legal arguments to advance its interests in unusual ways. One is the quixotic campaign to make lemonade out of the Dupre indictment. The claim advanced is that the investigation which resulted in two counts of child rape for Dupre was actually an exoneration of Diocesan bookkeeping practices.

This point is so important that Egan's explanation of it was included in the press release about the $8.5 million dollar settlement in July, and then repeated in the announcements of the settlement awards on Dec. 2. It's been a staple of Catholic Observer articles about the insurance trial.

Egan has regularly conflated the grand jury investigation of 2004, which looked at 80,000 documents, with the discovery portion of the settlement trial, which looked at about 60,000 – even though the two efforts are separated by several years and had different objectives.

While the grand jury chose not to indict Dupre on obstruction of justice or tampering charges, presumably for a lack of evidence that would hold up in court, there was no statement at the time from DA Bennett that he found Diocesan files to be pristine.

The grand jury was looking for evidence specific to Dupre, and while they found enough to indict on child rape, they did not find him personally responsible for the tampering charges. It's that simple. But, ever since, Egan sets up this straw man so that it can be knocked down.

_____

4. withhold information
(never admit guilt; never give up defenses; maintain secrecy)

Often, news stories about accused priests and victims have included a reference that information was released by the Diocese after an inquiry from the press. This has been so common that it raises a question – how much information has been put out by the Diocese in response to inquires without the acknowledgment?

Dupre was an expert at withholding information. For example, in Feb, '02, he confirmed in the Republican that Rev. Graves, Dube and Meehan had been removed from ministry years before – but this confirmation came only after an inquiry from the newspaper, and only after the newspaper had obtained those names from other sources.

During a lawsuit against Lavigne in Nov. of '02, Attorney Stobierski sought to examine Lavigne's file. Dupre authorized 168 pages to be released, out of a supposed total of 699 pages. Stobierski was not satisfied and sought a court order for the rest.

Six months later, the attorney was asking for 2000 more documents, which appears to be the true size of the file. This size difference was corroborated later during Rev. Scahill's testimony during a deposition.

The Diocese consistently argued in the Dupre era that the reason Lavigne's documents (and the documents of many other priests) could not be released was due to "confessor-priest" privilege.

It took until Jan. '07 of the McDonnell era before a judge ruled on this assertion. In Paper 77, Judge Agostini ruled that "…there is no support in the statute or the case law for the Diocese's sweeping assertion that any statement or acts…are covered by the privilege…" simply because one of the parties happens to be a priest.

It is an understatement to say that Dupre attempted to use all legal defenses. In 2003 the efforts to throw suits out of court seemed unending.

The Home Insurance Co. insolvency in July caused an immediate delay for five suits. Confessor-priest claims slowed the Lavigne cases, the Dobbert case was used as a test case for a dozen more under the Church/State argument, and the pre-1971 charitable immunity defense slowed five more.

It appears that the legal strategy during 2003 was hardball, pure and simple – litigate – and litigate some more. Or, as Dupre put it: "The issue is that we were willing to settle then and we are willing to settle now. But you have to get both sides to a reasonable spot." There is no way to know for sure, but, from all we know now, it is questionable whether Dupre would have ever stopped stalling, short of contempt of court.

We now know that confidentiality agreements were another prong of Dupre's approach. While settlements kept the costs down, it was confidentiality agreements within the settlement papers that kept court documents sealed.

An important case was the confidential settlement with Joseph Croteau, Danny's brother, in 1996. There is no way to be sure, but Joseph's settlement may explain why the 1993 settlement figure of 1.3 to 1.4 million had jumped to 1.7 million by the time a 2004 report on abuse was issued by the Diocese.

Even when the lawsuits and complaints kept rolling in, reaching a total of 65 or so by his resignation, Dupre felt no need to apologize for the alleged incidents. After all, they had not been proven.

In Dupre's view, there was only one type of information and one way of understanding things – the Diocesan way. And, there were no shades of gray. One senses that his confidence may have stemmed from a theological conviction that the canonical Diocese can never be wrong, morally, because of it's union with Christ. From that position, it is but a small step to the view that the Diocese (as corporation) cannot be wrong, either.

Dupre memorably referred to "the information" in the singular during an attempt to explain why it was that he and Rev. Scahill were so far apart. They differed in their recollections of what Dupre had said about the destruction of documents during a Presbyteral Council meeting.

In his explanation, Dupre said that he contradicted Scahill publicly because "…without prior notice to me or anyone in the diocese, the incorrect information was given by the priest [Scahill] to the local and Boston newspapers. So I felt the correction had to be equally public."

In the same statement he addressed the abuse charges: "…in a pastoral context, it does not matter who was legally responsible. What matters is, how can we bind up the wounds?"

Again we witness a conflict between canonical and civil. He asserts that his canonical responsibility for healing and pastoral care trumps all. Yet, his constant attempts to thwart and throw out suits and deny the civil rights of the victims suggest instead that he was willing to place the civil rights and needs of corporation sole well above those of the victims.

McDonnell has continued this strategy by restricting his public comments and instructing his lawyers and other confidants to keep Diocesan governance well-hidden. The decision about the so-called "privileged" documents which essentially ordered the Diocese to turn over the 7,700 pages they sought to keep private, is the best example. Even after a court order, the Diocese continued to insist on "privileges" that did not exist. In this attitude McDonnell is joined by the Most Rev. Roger Mahony, whose relentless stonewalling of similar documents is at the heart of the federal indictment underway in the Archdiocese of Los Angeles.

In Paper 77, Judge Agostini found that the Diocese had raised a religious autonomy-First Amendment argument about documents "…which are, on their face, not confidential…or which are devoid of substance…" He also wrote that "…privacy mandates by ecclesiastical authorities are not, standing alone, binding on this court."

In addition, the judge rejected arguments that a psychotherapist-patient privilege precluded disclosure. "The Diocese argues that where…the documents from and relating to the accused priests' treatment were placed in a confidential file accessible only to the bishop and his designees, the psychotherapist privilege applies and precludes their disclosure. This assertion is at odds with the statue and the case law."

Egan's immediate reaction in filing for a "protective order" to continue protecting the documents was labeled an "…impoundment dressed as a protective order…" when it was dismissed by the judge. The judge noted that not only the insurer's lawyers, but also the underlying claimants (victims) opposed the protective order.

Eventually, after they had exhausted all possible appeals and stalling tactics, Diocesan lawyers explained their motivation. They said that they felt they needed to be compelled by the courts in order to disclose the information. While this answer may be reasonable for a civil corporation, the same explanation, when applied to a canonical organization, makes a mockery of the transparency and openness that the Diocese claims to uphold.

The oddest thing about the battle over the so-called "privileged" papers is that the discovery went forward as planned, nearly all of the withheld documents were seen by the insurer's lawyers – and nobody died. None of the dire consequences predicted by Egan & Co. happened.

Dupre's brinkmanship was on display when he took the Fifth in connection with the civil charges levied against him in July of 2004. It's an unusual tactic because it must be disclosed in future litigation, and is usually considered to weaken the leverage of the defendant. Nevertheless, in a situation in which he could have answered the charges by affirming the facts, denying the facts, or remained silent, he chose the latter.

This same attitude of "taking the Fifth" seems to have permeated the Diocese during Dupre's tenure – he was tight-lipped about details of priestly misdeeds, regularly withholding important information from parishioners, the public and law enforcement officials.

The attitude has prevailed under McDonnell. He runs the Diocese with an iron hand, albeit while presenting a kinder face. The laity is not any more empowered now than it was under Dupre. McDonnell has mandated parish councils on paper, but then allows pastors to avoid setting them up. When they are set up, he avoids consulting them on important local decisions.

He insists that confidentiality agreements be part of the settlements (though the Dallas Norms supposedly put an end to this practice). He consistently has had "no comment" about Dupre, and maintained this silence even when the Dupre indictment was announced.

_____

The Diocesan Playbook, summary

Playbook Tactics:

1. maintain position
(we're broke; we're special; it's someone else's fault)

2. avoid decisions
(make decisions by not making decisions; stall; litigate)

3. avoid responsibility
(hide power; create layers to diffuse accountability)

4. withhold information
never admit guilt; never give up defenses; maintain secrecy)

Chapter Sixteen: Where Are They Now?

2009-04-15T11:46:00.000-07:00

In this chapter we offer an update on Bishop Dupre, Richard Lavigne, Rev. James Scahill, Rev. Edward O. Paquette, Rev. James Talbot, and Rev. Bruce Teague.

Bishop Thomas Dupre

In Oct., 2007, Stephanie Barry reported in the Springfield Republican that Dupre was still at St. Luke's Institute (Silver Spring, Maryland). Six months earlier, he had been resisting interrogation in the $8.5 million settlement trial. However, he eventually testified in a deposition about his role in supervising accused priests of the Diocese.

The deposition was taken in an office building in Baltimore. A lawyer for the North Star Re-Insurance company, Adam Simms, explained that: "I don't like taking depositions in a hospital setting."

It will be remembered that Dupre resigned on Feb. 11, 2004, one day after he was presented with a list of questions about allegations of sexual abuse by the Republican. At the time, the Vatican and the Diocese cited health reasons for his resignation. Diocesan spokesman Mark Dupont said that his resignation one day after the newspaper's inquiry was a "coincidence".

It took about a week for the Boston Globe to discover that the health facility that Dupre had checked himself into was St. Luke's Institute. In the edition of Feb. 20th, 2004, the Globe noted dryly that "…while Dupre has said he had a heart condition, the institute does not have a coronary care unit. It does treat priests with emotional, behavioral, and psychological problems, including those who have sexually abused people…"

The cost of Dupre's hospitalization is a matter of interest, because it could only be supported by church funds. Yet it is unclear how the cost is divided among Diocese, USCCB (United States Conference of Catholic Bishops), and the Vatican. St. Luke's will not divulge the cost of treatment for Dupre, citing privacy concerns.

However, the cost of a bed for similar mental health facilities averages about 650 dollars a day. On July 11, 2004, it was reported by the Republican that a six-month treatment phase for Dupre was projected by chancery official Msgr. Richard Sniezyk.

Assuming a minimum cost of 500 dollars a day, a month could be expected to cost $15,000, and a 6 months stay $90,000.

Officials from the Springfield Diocese have repeatedly said that they follow the guidelines of the USCCB with regard to retired bishops. The guidelines include a monthly stipend of at least $1,500, appropriate housing and board, complete health insurance benefits, an automobile, all expenses for trips to provincial, regional and national bishops' meetings and workshops as well as possible occasional visits to the Vatican.

Thus, Diocesan benefits for Dupre must amount to at least $3,000 per month and are probably higher. If the cost of 43 months (Feb. 2004 - Oct. of 2007), at $3,000 per month ($129,000), is added to the initial treatment cost of $90,000, we have a conservative total of $219,000 for Dupre's support, up to Oct. of 2007. If Diocesan support has continued, the total must be closing in on $300,000 by now, and is possibly much higher.

But, what has happened since May of 2007 is unclear, since neither the Diocese nor the Vatican have confirmed his continuation at St. Luke's or made any other information available. Even when it was announced in December, 2008 that Dupre would contribute money to the civil settlement toward two of his accusers, the Diocese insisted it had no other information.

It is also unclear if a Federal lawsuit is still pending against Dupre.

On July 11, 2004, it was reported that the Diocese had turned the Dupre investigation over to the Vatican. The Vatican did not respond to inquiries at that time, and nothing has been heard since about church discipline of Dupre.

Although it is customary to pray for retired bishops of the Diocese, Dupre is not mentioned at Sunday Masses in at least some of the parishes of the Diocese. It is not known if this is because of an order from the bishop, or for some other reason. Dupre's name does not appear on printed materials of the Diocese. For example, the Catholic Observer, the official newspaper of the Diocese, has had no substantive news about him in years. And, a recent color brochure promoting vocations to the priesthood mentions Bishop McDonnell and retired Bishop Joseph Maguire – but not Bishop Dupre.

On the Diocesan web site, Bishop Dupre's name does not appear. The following information appears under "History and General Information":

On April 1, 2004 Bishop Timothy A. McDonnell was installed as the 8th Bishop of Springfield. Retired Bishop Joseph Maguire (5th Bishop of Springfield) continues to reside in the Diocese and take part in the life of the Catholic community here.
________________

Rev. Bruce Teague

It will be recalled that Teague was the whistle-blower priest who objected to Rev. Richard Lavigne, a convicted child molester, hanging around St. Brigid church in the mid-90's. When Lavigne asked to help hear children's confessions, Teague, the pastor at the time, informed the Diocese. When he got no response, he alerted the local police, who issued a trespass order barring Lavigne. Teague said that after his superiors got a copy of the order, he was reprimanded for going outside the church. He was later removed from his post.

Teague is still a priest of the Springfield Diocese. He's been working for many years in pastoral care for hospitals at the eastern end of the state. As of May, 2008, he was listed as a member of parish outreach ministries of the Archdiocese of Boston at Beth Israel Deaconess Medical Center.

The following appeared in an article in the Worcester Telegram & Gazette on Aug. 25, 2005. The article is available online at: http://www.snapnetwork.org/news/vatican/vatican_papers_spark_debate.htm

In it, Rev Teague discusses "Crimen Sollicitationis", one of the Vatican decrees dealing with sexual abuse.

The Rev. Bruce Teague, a College of the Holy Cross graduate who is a priest of the Springfield Diocese, said bishops attempted to avoid scandal, particularly at the local level, and did not need Crimen to do it. “Most American bishops, unless they were canon lawyers, would not understand Crimen. It would have had to be interpreted to them by their chief canon lawyers,” he said.

Rev. Teague said bishops did not view sexual abuse of minors as a criminal issue but thought it was best handled by sending the priest to treatment. “Their behaviors were similar to Nixon in Watergate and Clinton in the Monica Lewinsky case. Their efforts and their diagnosis proved to be disastrous and destructive to victims and the church,” he said.

Canon law dealt with the issue of abusive priests, but American bishops did not even follow church law, Rev. Teague said. He said bishops still fail to hold themselves accountable for the harm they caused. “Unlike the Uniform Code of Military Justice, the Dallas Norms fail to hold bishops accountable themselves,” he said.

_____

Rev. James Scahill

Fr. Scahill continues to be pastor at St. Michael's Parish at 128 Maple St., East Longmeadow.

_____

Rev. Edward O. Paquette, Jr.

Rev. Paquette has never been prosecuted, despite hundreds of credible accusations in three states, because all of the statutes of limitations have expired. Paquette was never laicized. However, at least three lawsuits holding the Burlington Diocese accountable for his actions have been successful. The awards have been in the millions. Close to twenty lawsuits are still pending in Vermont.

A relative says that he still wears a Roman collar on occasion. He's now close to 80 and has health problems, and though he's not worked in several decades, he gets by. He was left an inheritance by a parishioner of Our Lady of Blessed Sacrament Church in Westfield, his hometown.

For at least the last twenty years he's lived in the ranch-style house built by his parents on Belleview Dr., in a rural part of Westfield, Massachusetts. Like the dozen or so other credibly accused clerics who reside in the Diocese, he does not appear to be under any supervision or treatment program.

_____

Rev. James F. Talbot, S.J.

The Talbot case was repeatedly cited by both plaintiff and defendants in the $8.5 million settlement case, because it had raised similar issues about so-called "privileged" documents such as bishop-priest correspondence, psychological evaluations and so on. 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. However, the Talbot decision upheld some areas of secrecy. The court found that keeping documents between Jesuit priests and superiors confidential helped to establish trust, and therefore contributed to the enforcement of religious discipline. The Jesuits defended this trust as part of their belief system.

This last part was found to be a valid excuse for secrecy. This may explain why the diocese decided to roll the dice on trying to enforce all of the defenses brought up by "Talbot" even though most of them were already 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:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ma&vol=sjcslip/sjcMay04g&invol=1

"Talbot" appeal (Nov. 24, 2004) can be found at:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ma&vol=sjcslip/sjcNov04r&invol=1

Rev. James F. Talbot, S.J., taught and coached at Boston College High, 1972 to 1980. He pleaded guilty in 2005 to raping two teenage students between 1977-79. He was sentenced to 5 to 7 years. He is currently incarcerated at the Massachusetts Treatment Center for the Sexually Dangerous in Bridgewater, Mass. While there, he is known as "James F. Talbot", but he does not appear to be laicized.

Richard Lavigne

Richard Lavigne is listed as a Level III sex offender on the Chicopee Police Department web site. Level III is "high risk offender". No further information is available about Lavigne.

Chapter Fifteen: Epilogue

2009-04-15T11:45:00.001-07:00

The following is from the direct examination during the deposition of Fr. James Scahill on Oct. 29, 2003 in the matter of Susan F. Morris vs. Richard Lavigne, Joseph Maguire, Robert Thrasher and Roman Catholic Diocese of Springfield.

+++++

Q. (By Mr. Stobierski): Do you believe your coming forward will enhance your career as a priest?
A. (By Fr. James Scahill): Absolutely not.

Q. Will it affect your career whatsoever? In your opinion?
A. No, no. I don't think it - I'm a parish priest. I'll just continue my priestly work and the sooner I can only do that the better off I'll feel. I want this to go away.

Q. Now, you indicated that you didn't think you'd be elected again to the Presbyteral Council, correct, you previously testified to that?
A. Right, yes. I serve until December 2004.

Q. And why do you think you won't be elected again?
A. I'm out of the box.

Q. What do you mean "out of the box," when you say "out of the box" what do you mean by that?
A. I think we're all products of our condition. And I think we're conditioned in a brotherhood in a fraternity as clerics and once I decided to do after prayer and thought and listening what we did do in June of 2002 [the financial protest], I knew it would be forever changed for me. And I've got priests that I used to socialize with for over 30 years who don't call me, don't talk to me. It's okay. I can - I'll tolerate that. But that's why I know. When I go to these presbyteral meetings do you think it's a walk in the park? You can cut the tension with a chain saw. I don't enjoy going to them but I go to them because I've not done anything wrong.

Q. Have you ever been threatened at all with your activities related to this clergy sex abuse scandal?
A. When Bishop Dupre and I met in July of 2002 Bishop Dupre told me, "You know, I can suspend you." And I told Bishop Dupre, "I know you can suspend me but so convinced am I of the correctness of what I am doing I am risking that suspension if you want to risk suspending me." In September of 2002 -

Q. Go ahead?
A. In September of 2002 at the convocation in Maine of the priests, I, after listening, stood up and asked that we would stop bashing the media, that it was supposed to be a spiritual twist to this because, I said, the media is not the personification of evil. I said, "I'm not in bed with the media but the media is accomplishing more on this matter than decades of bishops have." I then said, again in front of my priests, because it was the first time I was in the company of all the presbyterate after the June 2002 statement, I then said, "And I am not disobedient. There is no virtue to obedience that requires the surrender of virtue. There is no virtue to obedience that requires one to go myopically blind like the soldiers of Hitler."

Q. And was there a response to your statements?
A. Bishop told me I was disobedient. He told me that I had broken my oath of office as a pastor. He told me that I had cost this diocese thousands and thousands and thousands of dollars with the timing of my position because of the Stewardship Appeal was going on and because the Future of Hope pledge phase had not yet been completed. And he told me I went into East Longmeadow with an agenda. I rose at that time only to protest the final point of what he said because he and I had sat down physically at least twice and I explained to him I did not go to East Longmeadow with an agenda. I went there for a change. I went there for new challenges. The agenda came to me.

Q. Did you ever expect this kind of agenda when you went to East Longmeadow?
A. Absolutely not.

Q. And you said you had another meeting with Bishop Dupre?
A. Yes.

Q. And what occurred at that meeting?
A. Bishop Dupre is not an evil man and I do not hate Bishop Dupre and Bishop Dupre does not I believe hate me. That being said, I went down to his house. I called him the Sunday after the convocation. I talked to his machine. His secretary called me back Monday and I said, I think it would good for bishop and I to meet. So I went down there in late September, this time I guess, last year. And because what bishop did up in Maine in front of all those priests was assault me, verbally assault me and he literally - he literally raped my character. And I went down because my father told me a long, long time ago, he said, "I got no money, I got no land I can give you - all I have is my name. I've been good to it. You be good to your name." And I have always tried to be good to my name and my name was just raked through the coals. And I went down to the bishop one-on-one and I took him on with the disobedience, the disloyalty, the agenda and the money. And when it came to the money I said to him, "I find it strange that you have never with your priests or publicly bemoaned the millions and millions of dollars that Lavigne and the others have cost this church, but you go after me because of a disagreement and because of a challenge that I've cost the Diocese money."

Q. And was there any response to that?
A. No. And there was no apology.

Q. Are those the only two meetings that you can recall that you had with Bishop Dupre regarding the stance you took at your parish?
A. Well, yes, in that meeting, too, in September, which I believe - and memory doesn't always serve any of us completely - I do believe that September meeting was the last personal meeting I had with Bishop Dupre. And at that meeting once again, as he did in June of 2002, in that meeting of September 2002 he threatened to suspend me. And I told him at that time, "Stop threatening me."

+++++

Chapter Fourteen: Rev. Richard Lavigne and Bishop Dupre

2009-04-15T11:43:00.000-07:00

Above, Lavigne poses with (from left) Joseph, Danny, Michael, and Jackie Croteau. Globe Staff Photos/Dominic Chavez.

"I will never understand as long as I live how he is allowed to be paid by the diocese and remain a priest. . . . and I was abused and I have nothing. I am 34 and I feel afraid of people. I am afraid of sex. I can't hold onto a job."

- Shawn Dobbert speaking at a press conference after he filed suit against the Rev. Richard Lavigne and the Diocese of Springfield (Springfield Republican, July 12, 2002).

Dobbert's turn of phrase – that he would never understand as long as he lived – proved only too true. He died in circumstances ruled accidental in North Adams only a few days after his claim against Lavigne was settled in late 2004. He was buried after a service in an Episcopal church.

The two-year delay for his claim was not unusually long by Diocesan standards, but it was perhaps harder to take than most. The delay was caused in large part because his suit was used by the Diocese as a test case. Since Dobbert's suit wanted to examine the bishop/priest relationship, the Diocese worked hard to have it dismissed – on the grounds that such suits were a violation of church/state separation.

Lavigne was a parish priest in the Springfield Diocese for 25 years. But on Oct. 21, 1991, his career collapsed. That day he was arraigned in Greenfield District Court for sexual assault on children. He pleaded guilty to several counts of fondling two boys. One boy was molested in 1983-84, the other in 1987-88. But, the other charges in the plea bargain were far more serious – six charges of molestation of a child under the age of 14, two charges of molesting a child over 14, and two child rape charges.

Within 8 months, he was convicted and sentenced. Judge Guy Volterra ordered him to never again serve as a parish priest. The banishment was one condition of a 10-year probation. He never did jail time.

The prosecution of Rev. Richard Lavigne in 1992 and settlement a year later with 17 victims for $1.7 million seems from this distance to be almost a prequel to the Boston crisis some 10 years later. But, there is a significant difference.

The Archdiocese of Boston finally admitted to moving problem priests from parish to parish. That admission has never been made in Springfield. As to assigning reasons for this difference, "better record-keeping" might be among them.

It should be noted that when the announcement was made in March of '94 about the settlement, Bishop Marshall stated that a Diocesan investigation of Lavigne proved no cover up.

"A claim was made that diocesan representatives knew or should have known about Father Lavigne's misconduct and did nothing to prevent it. However, the bishops at the time and the priests, who lived with Father Lavigne, maintain adamantly that they knew nothing of such activity, any more than did the parents and families of the young persons who made the allegations."

The Diocese later admitted that it had received complaints of a sexual nature about Lavigne in 1986 or '87, when he was at St. Joseph's in Shelburne Falls. He was evaluated by mental health professionals, then placed back in service as pastor.

More disturbing, the Boston Globe reported the recollections of Detective Mitchell that shortly after the Danny Croteau murder in 1972, Detective Fitzgibbon sought out and briefed Diocesan officials. Police had learned that Lavigne had molested some of the Croteau boys and others.

"We had an obligation to show our cards," Mitchell said, according the the Globe. "Fitzy had a sit-down with them. Everything we knew, we told them."

It was only after the 1993 settlement that Joseph Croteau, Danny's brother, came forward to settle charges about Lavigne's behavior between 1969 and 1971. Joseph's complaint was settled in 1996, though the amount has not been disclosed by the Diocese. His complaint included the information that Lavigne had taken him fishing to the same spot where Danny's body was later found. Not proof, to be sure, but disquieting.

Joseph's settlement may help to explain why the 1993 settlement figure of 1.3 to 1.4 million had jumped to 1.7 million by 2004, when the larger figure was reported for the first time in a long-awaited Diocesan report on abuse.

But whatever the official position of the Springfield Diocese about Lavigne he was, and remains, a sort of one-man Chernobyl, in terms of damage. There is no other priest even close. His record includes the initial 17 claims, then Joseph in 1996, 24 in 2004, and 7 in 2008 – a total of 49. And there may be more.

Victims from long ago continue to come forward elsewhere, notably in the Burlington Diocese, which encompasses Vermont. A jury award of $8.7 million, mostly in punitive damages, was levied there in May, 2008, against the diocese for crimes committed and covered up in the 70's. $3.6 million was awarded on Dec. 17, again, mainly for punitive damages, and against the diocese for covering up crimes in the 70's. There are over 20 lawsuits against the Burlington Diocese still pending.

Thus, based on precedent in Vermont and on Lavigne's long record, there's still a possibility that we may see a jury trial based on testimony from one of Lavigne's victims. Yet, the more that victims settle, the fewer of them remain, and the less likely that trials will result.

And so, like Chernobyl, his legacy lingers. It is not just that the crimes themselves have caused lasting damage to the Diocese (though they certainly have). Of equal concern is that the officials of the Diocese, in pursuing a legal strategy of avoiding responsibility for enabling his crimes, have assumed a defensive posture. It is questionable if they have ever emerged from that stance.

Soon after his conviction, Lavigne was declared indigent, in October, 1993. In the following year Bishop Marshall stated that Lavigne was no longer on the Diocesan payroll. He added that Lavigne was receiving charitable assistance to meet minimal subsistence needs.

Similarly, in May, 2002, after Lavigne's continued support became a public issue, Bishop Dupre told reporters that Lavigne was given minimal food and shelter expenses to keep him off public assistance.

In fact, for thirteen years, from his arrest in 1991 until May 27, 2004, Lavigne received a Diocesan stipend of over a thousand dollars a month, plus full health and dental benefits.

His indigent status also earned him court-ordered legal counsel from Max Stern, a prominent Boston lawyer. He would need the counsel, because at regular intervals, legal actions against him would require his presence in court. His court appearances kept his name in the news and allowed questions about his support to grow. Another public concern was his continued status as priest.

After Ronald Malboeuf's defrocking in 1988, he moved to Florida and was taken off the payroll. On the other hand, Lavigne remained in the Pioneer Valley, was still paid, and was known to socialize with his former colleagues.

The socializing became an issue in the mid-90's. Lavigne would stop by the St. Brigid's rectory in Amherst after his therapy sessions to visit the Rev. John Roach. While Roach saw nothing objectionable about this, the same cannot be said for Rev. Bruce Teague, the pastor of St. Brigid's. Teague was particularly concerned because in 1997, Lavigne had asked to help hear children's confessions. Teague asked Lavigne to stop hanging around church grounds.

Teague reported Lavigne's presence to the Diocese, but no action was taken. He then went to the local police, who issued a trespass order threatening arrest if Lavigne reappeared at church properties. When word of this got back to the Diocese, Teague was reprimanded for going outside of the church. Eventually, Teague was forced out as pastor. Many parishioners were outraged, but Bishop Dupre insisted throughout the controversy that Teague's dismissal had nothing to do with discipline, or with Lavigne.

Word of Teague's dismissal and the continued financial support of Lavigne spread throughout the Diocese via press reports. Soon, victims, their families and many others were calling for action.

The twin complaints – the defrocking issue and the support issue – only got more volatile as time went on. A parishioner said that the defrocking was half the equation, because "…until Lavigne is removed from the diocesan payroll, he will be the responsibility of the diocese and the lay people of the diocese."

Finally, in June of 2002, one parish took a stand. Led by Rev. James Scahill, St. Michaels in East Longmeadow began to withhold the parish tax on recurring income (weekly collections). This 6% tax was sent to the chancery for general purposes. The protest was to last nearly 2 years.

The best way to understand the impact of this protest is to listen to an excerpt from the deposition of Scahill. This interview with Attorney Stobierski took place in Oct. 2003, some 16 months after the protest began. The purpose of the testimony was to gather information for one of the lawsuits filed against both Lavigne and the Diocese.

________

Q (by Mr. Stobierski): Do you know the gist of the stand that you took, what -
A. (by Fr. James Scahill): Well, I think I told you it was a two-prong concern -

Q. Right.
A. - that the man [Lavigne] would be laicized and that he would no longer be supported by the church. And that in the meanwhile we would withhold a 6 percent taxation of the chair on the recurring income in East Longmeadow because there was a concern that that monies were going for those purposes.

Q. Did you ever ask for any kind of information to show the Diocese funds were not used to support Richard Lavigne?
A. Well, for the first time in my 28-year history as a priest, later, about a month after we took the stand, in fact, I believe it was the end of June, for the first time bishop sent a cover letter and there was an explanation of the disbursement of the 6 percent taxation. I think there was 17 or 18 line items, you know, 8.1 percent here, 3.2 percent here, all adding up to a 100 percent. And he did mention in his cover letter to all the priests that this conclusively shows that not one cent of the 6 percent goes for these purposes.
But my point is the church has no money save from what it receives from people and the people did not contribute for these purposes.

Q. So other than that letter did you ever ask for any specific information or ever receive information with respect to how the Diocese pays Richard Lavigne at this point?
A. I don't understand that.

Q. You indicated that you received a letter that was sent out to all the parish priests how the money was broken down?
A. It was 6 percent was disbursed. Of course, if one wants to prove conclusively that not one cent would go, one would have to break down all of those 18 line items to the cent.

Q. But did you ever ask anyone else or make any requests with respect to how Richard Lavigne is paid?
A. People's jobs could be in jeopardy. I know factually that the Diocese is paying for his full excellent medical and dental insurance. That's one of the things we had to hammer down before we could publicly say that but I hope no one loses their job over the fact that they shared that information with me.

________

In Chapter Twelve, the difference between judicial and administrative laicization was discussed. The judicial is the involuntary process. It requires canon lawyers on both sides, due process, testimony and so on. In the administrative process, the laicization is not contested by the priest. Indeed, he asks for it. It is the administrative type that was in play for Ronald Malboeuf, voluntarily laicized in 1988. Lacization finally came for Richard Lavigne, but not without more foot-dragging on the part of Dupre.

As Scahill mentions above, Dupre sent out an "Explanation of Laicization", including packets of information, to all priests of the Diocese. It appeared to be a direct reaction to the Scahill protest. In a cover letter, Dupre wrote: "This is a difficult time for all of us. We need to be supportive of one another and avoid the temptation to create division among us."

When the press asked him to explain further why Lavigne was still being paid, Dupre was unavailable for comment for three weeks. In lieu of a statement, a Diocesan spokesman sent newspapers a copy of the "Explanation of Laicization".

We have seen that the financial protest by parishioners began in June of 2002. On the opposing side was canon law, as interpreted by Bishop Dupre. Dupre stated that church law obliged him to support Lavigne during his 10-year probation, and even after any future defrocking. Essentially, Dupre was endorsing lifelong support. It seemed that the more that people demanded Lavigne's banishment from the church, the more defenses Dupre found, and the harder he dug in.

For example, he explained to the press that Catholic bishops have been reluctant to use the laicization process against "notorious and serial" child sexual abusers because the process is so slow and cumbersome: "The priest has all the rights any person would have - the right of due process, the right to a lawyer . . . There are rules of evidence and a statute of limitations and on and on and on."

He explained further, "The law holds all members of the faithful, and particularly Bishops, to the higher demands of charity. Bishops are not allowed the luxury of taking the easy, or most popular, path."

Later in the year, Dupre again asserted that the reason he had not moved to laicize Lavigne was because the process was too time-consuming. He failed to mention that, by this time, Lavigne had been out of ministry for over ten years, presumably more than enough time for the process to have run its course, had a judicial trial been started many years previous.

But whatever Lavigne's status, Dupre never wavered in his support, often citing canon law to back him up. This may have come natural, for he was a canon lawyer by trade. In fact, Dupre's astute grasp of canon law is footnoted in the standard work, the "New Commentary on Canon Law" by Beal and others.

But finally, in December of 2002, Dupre announced that the Vatican's approval of a streamlined policy enabled him to strip Lavigne of his priestly status. Apparently, Lavigne's name was at the top of the list, because a year later the defrocking was complete.

Back in 1991, Marshall had simply removed Lavigne from service, without pushing for either type of laicization. In fact, Lavigne spent only seven months at St. Luke's, and it's quite possible that the Diocese planned to return him to service again, as they had in 1987.

When Dupre took over in 1994, he followed Marshall's lead for handling Lavigne, essentially making a decision by not making a decision. When he finally came around to pursuing laicization in Dec. of '02, Dupre explained his change of heart: "Until charges came forward this year, I was willing to accept that arrangement [Marshall's]." Dupre may have been referring obliquely to the new policy of punishing abuse by immediate removal (Dallas Norms), which was passed by the US bishops in 2002.

But, we now know that complaints and lawsuits about Lavigne's behavior must have been coming in on a regular basis throughout Dupre's tenure. For example, the claim of Danny Croteau's brother, Joseph, was settled in 1996. The fact that Dupre had not publicly acknowledged that claim and others does not mean that he was unaware of the charges.

In retrospect, the study of law, particularly of the hardball variety, seems to have been almost a refuge for Dupre. Described by his admirers as "shy" and as "dour" by others, he nevertheless seemed most content while working within the intricacies of the law. Nor was he afraid to wield the law as a weapon, notably in a bruising fight among hospitals and local legislators. His control of the Diocese during his tenure was masterful, right up to and even including his Wizard of Oz-like departure at the 11th hour, in the early morning hours of Feb. 11, 2004.

A few months later, he again danced out on a legal limb, going so far as to take the Fifth Amendment when he stood accused of abuse. Taking the Fifth is almost never done in civil trials, because that potentially damaging fact may be disclosed to the jury, assuming that the case goes to trial. Perhaps he sensed that the trial would never be heard.

At any rate, when faced with a pre-trial hearing on civil charges of child rape in the summer of 2004, when he could have denied the facts, affirmed the facts, or remained silent, he chose the last option – to invoke his constitutional right not to incriminate himself.

Chapter Thirteen: The Misconduct Commission

2009-04-15T11:39:00.000-07:00

* Disclaimer: It should be noted that this whole series of reporting on the earlier years of the Springfield abuse crisis uses many quotes and other information from the dozens of newspaper accounts of the day. Due to the sheer volume of material I am not attributing each quote to its specific story, though I would be glad to supply the full citation to interested parties. I am indebted to the excellent reporting of the Springfield Republican and Union-News, and to reporters Bill Zajac and Stephanie Barry.

_____

We left off covering the events of Feb. of 2002, with Bishop Dupre claiming that the Diocese had not faced a lawsuit in more than five years, and the Misconduct Commission reporting that in the previous three years there had been no claims substantial enough to turn over to law enforcement, and none were of a sexual nature.

As late as March 5, only one new call had come in.

And yet this period of calm was about to explode. By July there would be dozens of new complaints. By Feb. of 2003 the Diocese was riding a legal roller coaster, and by Feb. of 2004 the situation seemed apocalyptic. Bishop Dupre's resignation on Feb. 12 was certainly the greatest shock, but it was by no means the only one.

Let's look a little closer at the history that led up to the crisis of Feb., 2004, by which time there were around 50 people with complaints against the Diocese.

It's worth reviewing the creation of the Chicago commission in the early 90's, since Springfield's was modeled after it. Initially, there were high hopes for lay boards, as reported in early 1992 by Peter Steinfels in the New York Times:

"… critics note that the church's actions [in dealing with clerical abuse] have also been shaped by an emphasis on forgiveness, and especially by a desire to avoid public scandal -- a desire sometimes as strong among laity as clergy…factors like these are expected to lead the Chicago commission to recommend that some kind of independent board, including lay people and outside experts as well as priests, be established to receive accusations, immediately investigate them, report charges to civil authorities and remove the accused priest if warranted and provide therapy to victims and perpetrators."

The last sentence displays confidence – perhaps, overconfidence? – in the laity's ability to help, and in the clergy's willingness to let them. No doubt, the boards were created in all sincerity to get to the bottom of clerical abuse. But, along the road to reform there were many conflicting interests, as we shall see.

Even the name of the Springfield commission is a story in compromise. At first, it was the governmental-sounding Commission to Investigate Improper Conduct of Diocesan Personnel. Sometime before 2002, the name was changed to the Misconduct Commission. During 2003 or 2004 it changed again, to the Review Board. The emphasis changed as well.

At first it was mainly about clergy, as the original name suggested, although certainly therapy and other concerns for victims had a place. But, in recent years, the emphasis has been on victims, and on a vaguely expressed hope of "healing", across the board. No longer does anyone at diocesan headquarters seriously contend that it is an independent, transparent agency that effectively reports charges to the police.

Like the one in Chicago, the commission had 9 members. They were laity drawn largely from the social services professions. One member investigated a new claim. If it was found credible, the full board would review the complaint, hearing from the complainant, the accused person, witnesses, and consultants. After deliberation, the commission made a recommendation to the bishop. Substantiated allegations of law-breaking behavior would be reported to civil authorities, according to Marshall.

After a year or so, the commission had made 4 or 5 recommendations to Marshall for disciplining priests. But, citing privacy concerns, the commission was tight-lipped about details. Marshall, too, shared little with the press or parishioners.

He explained: "The commission finds itself in a difficult position…they are bound to confidentiality…I don't know the particulars of any testimony given to the commission. I do not attend the meetings and they do not reveal the testimony to me, nor do I ask questions of them. After they ponder a case and discuss it they make a recommendation to me. I…have carried them out."

Commission Chair Robert Van Wart saw the commission's role as listener and helper: "We're really there to listen, to show we are interested in them, if they are in need of assistance and to get as complete a story as we can get," he said. "We ask questions and try to be as sensitive to the individual as possible. It can be intimidating for some people, with a group of nine people listening. You can see how some people might not like it…."

Indeed, some did not like the process at all. Nor were those who approached the board always happy with the results. One of the victims commented in 1994: "They said they would get back to me, but I had to chase them down, nag them for any kind of answers…they promised me a face-to-face meeting with the accused, and they put so many stipulations that I was advised by my lawyer and law enforcement officials not to attend…I see people coming before the commission being minimized, discouraged, re-victimized and isolated from one another. I know they tried to isolate me…."

That same year, another victim said: "The members of the commission were very cold…they had no compassion. One of them had the nerve to ask me if it were at all possible that I was a willing participant in the act. I mean, I was only 11 at the time."

This victim said he learned from his lawyer of the commission's actions against the accused priest 11 months after he went before the commission. His lawyer learned of the priest's fate from a Union-News reporter. He didn't think that was right. A theme emerges from comparing articles documenting the work of the commission. Several victims learned the disposition of their cases from media inquiries or from accounts in newspapers - not from the commission itself.

But, if the commission was imperfect in practice, that was not the fault of it's formation, according to a prominent professional therapist, the Rev. Stephen J. Rossetti. He praised the idea: "It's a commission that has a great deal of authority who can investigate allegations independently and then go to the bishop with their findings and recommendations." At the time he spoke, Rossetti was employed at St. Luke Institute in Maryland, a treatment center for religious with behavioral problems.

Rossetti said that the structure of the Springfield commission could be used as a model for dioceses throughout the country because of the independent power bestowed on it by the bishop, though that power from the start seems to have been limited to investigating and making recommendations.

Rossetti is still at St. Luke's, and is now it's CEO. It is St. Luke's where retired Bishop Thomas Dupre underwent treatment beginning in 2004. It is not known if he is still in treatment there, but most news reports cite his address as "St. Luke's Institute".

Rossetti has written often about the priesthood, and about the complicated issue of dealing with homosexual priests. He has come under fire from conservative Catholics who accuse him of being soft on homosexuality. On the other hand, he's sometimes accused by victim's rights groups of focusing on symptoms, instead of addressing the structural problems that enable abuse.

The question of what to do, exactly, about priests who are credibly accused and clinically treated, and yet, who have no criminal record (because no charges were ever brought) is a vexing one. In April, 2002, Rossetti wrote in the magazine America that priests who've had therapy for sexual abuse are better off being put in limited ministry, rather than banished:

"…should any priest who has a past history of molesting a minor remain in the priesthood? Clearly, the public is saying no. And I think public pressure will have its way. Around the country, priests with a substantial allegation of child molestation are being dismissed from any form of ministry….But is this the safest course of action for children? When priests are dismissed from ministry, they go out into society unsupervised and perhaps even untreated. Then they are free to do as they please.
"If they have been convicted of a sexual crime against minors, they may have to be registered in compliance with various state or local laws. But… there are few criminal convictions against child sex abusers. Either the statute of limitations has run out, or the victim does not want a criminal trial, or there is simply insufficient evidence. Whatever the reason, when the church "defrocks" these priests, they are no longer supervised."

Rossetti makes a good argument for limited ministry, but the key word in his solution is "supervision". One could question whether the church provides – or, is even capable of providing – the necessary oversight. The evidence is not encouraging.

For example, in addition to Bishop Dupre, who has been accused by three individuals, the Springfield Diocese has witnessed 48 claims against Richard Lavigne, and 4 each against the Rev. John Koonz and Rev. Francis Lavelle. And yet, their whereabouts are unknown, and the Diocese have no information about these individuals on their web site. As many as a dozen credibly accused clerica are scattered about the Diocese with neither a program to go to, nor a supervior to report to, according to SNAP, a victims right group.

For another example, one of the early cases of the Springfield commission involved a supervision issue gone wrong. Charges were made against the Rev. Donald A. Desilets. After hearing the details, the commission recommended to Bishop Marshall that Desilets be granted early retirement, with restrictions on his ministry. He was allowed to retire to Montreal and join the Sulpican Fathers.

According to the superior of the order, Rev. Emillius Goulet, Desilets was soon living and working in the teaching community, which helps prepare young men for the priesthood. The superior would not comment on whether he had any contact with boys.

The victim in the Desilets case was dismayed with this arrangement. He didn't think it was right that Desilets could be put back into a teaching environment. He said: "I just see it as they have moved him again. That's just what the Catholic Church has been doing for so many years."

As a result of this disappointing experience, the victim was considering a lawsuit against the Diocese: "I had never any intentions of going public with this," he said. "My only intention was to get the priest out of the church so that he does not do this to anyone else. With therapy I can see what this has done to my life."

In the coming years, many other victims would come to this same conclusion – that in order to get meaningful results, a lawsuit was necessary. But, from the Diocesan point of view, a different solution to claims – settlement – was much to be preferred.

In March of 1994, the Diocese announced a settlement with 17 of Lavigne's victims. All were represented by Michael Wiggins of Boston. A Diocesan source said that the amount was "between 1.3 and 1.4 million", but according to a 2004 Diocesan report, the actual amount of the settlement was 1.7 million, and the year of the settlement was 1993.

In the announcement of March, 1994, Bishop Marshall denied that the diocese shared any blame. He said that the diocese wanted to settle because of the credible claims of the victims, and due to "a spirit of justice and charity."

He confirmed that insurance money from an unrestricted reserve account paid the settlement, but added that the reserve account could respond to the need "this one time." It is not clear if this was self-insurance, or if the claims were covered retroactively. After 1986, sexual abuse was treated as an exclusion on general liability policies carried by the Diocese.

Marshall addressed suspicions about diocesan officials: "A claim was made that diocesan representatives knew or should have known about Father Lavigne's misconduct and did nothing to prevent it. However, the bishops at the time and the priests, who lived with Father Lavigne, maintain adamantly that they knew nothing of such activity, any more than did the parents and families of the young persons who made the allegations."

Despite this statement, the Diocese later admitted that it had received credible complaints of a sexual nature against Lavigne in 1986. He was sent for evaluation and was considered "safe" – and soon returned to his parish in Shelburne Falls.

In our next installment, we will rejoin the action in the spring of 2002, as the Misconduct Commission descended from a period of relative calm into the maelstrom.

_____

Previously, I said that spring of '02 was a period of relative calm for the Misconduct Commission. The complaints were few and far between, and when they came up, they were not sexual in nature.

But, by the fall, the board would be deep in controversy, with dozens of claims swirling around, many in a form Diocesan officials didn't particularly like – lawsuits. The pressure would only worsen. The year of 2003 was perhaps the worst in the history of the diocese – until 2004.

Looking back, a significant event occurred in July of '02 within the commission itself, when some new rules were implemented, at the insistence of Diocesan lawyers. But, before we look at that, we might ask why there were so many complaints so suddenly. What happened?

The quick answer might be "Boston", because news about hundreds of abuse claims against the Archdiocese was beginning to spread through the Commonwealth. Big black headlines were the rule throughout '02, starting with Cardinal Law's admission in January that problem priests had been reassigned to parishes, and culminating with his resignation in December.

But, there is much more to the increase in the commission's abuse caseload than proximity to Boston. In fact, the local problems had been building for some time. There are at least two factors.

One is the category of "special ministry", which was created when Dupre took over the Diocese in 1995. The other is a more gradual development, and is summed up by Bishop Maguire, who served 1977-1992. In March of '02, he described an evolution of the church's understanding of child sexual abuse by priests.

"At the beginning of this crisis, matters of this kind were looked at as a moral issue that needed to be resolved through penance. Then the next stage, we came to understand it was an illness and needed psychological treatment and help. Then we came to the realization that these issues needed to be dealt with as a criminal activity."

This narrative of a three-part evolution was probably intended as an explanation. And yet, it anticipates the accountability question, and leads to other questions: when was each level of understanding reached by management? Did the actions of officials match their understanding of the problem? And, if their actions were consistent with their understanding, how can that be proven?

To be sure, back in '02, many parishioners felt that the Diocese was on top of the crisis, and they often credited the Misconduct Commission. Both Marshall and Dupre insisted that they always followed the recommendations of the commission. This earned credibility in the eyes of the parishioners. For example, in March of 2002, Stephen J. Jablonski, an architect and parishioner at St. Michael's Cathedral in Springfield, said: "Our diocese is on the other side of this problem. We had our crisis and dealt with it effectively."

Obviously, he was referring to the Lavigne situation, when Marshall had taken the hard line. But, what Jablonski could not have known at the time was that the peak years for abuse were actually much earlier in time than anyone outside of the chancery suspected. When a long-awaited report by the Diocese on sexual abuse was released in Feb. of 2004, it showed the top decade to be 1965-1975, when Bishop Weldon was in charge. Presumably, this period may have corresponded to the first phase in Maguire's analysis, when abuse was still looked at as a moral failing. It is still not known to what extent confidential settlements were made during those years.

It's noteworthy that all of the abuse complaints heard by the commission from Jan. 1, 2002 to Aug. 11, 2003 were about occurrences at least 10 years previous, in other words, even before Lavigne was convicted. These were troubles long-buried but unresolved, and were now beginning to bubble up to the surface.

A closer look shows that Maguire, himself, had been in charge for 13 years when the Lavigne scandal erupted in 1991. Presumably, he could have known, and perhaps should have known, about some of the damage caused by Lavigne. Others did. For example, Retired state police Lt. Edward D. Harrington, part of the DA's investigative unit during the mid 70's, said later that a pattern of sexual abuse by Lavigne was common information among detectives and Diocesan officials during his investigation of the Danny Croteau murder.

Even discounting the 1970's, the insistence by the Diocese that the first complaint about Lavigne came forward in 1986 places Lavigne's problems well within Maguire's time frame.

By 2002, Dupre had been handling wayward priests for 7 years, having inherited the diocese in 1995. But, the true extent of his dealings did not emerge for years after the fact. We know now that one of the controversial things that Dupre did was to establish a re-entry system for priests in trouble. This was the so-called "limited ministry" or "special ministry" category.

In other words, priests with a sexual problem were removed from parish life, but not from ministry, receiving a special assignment away from parishioners. For example, after credible accusations in the early 90's, Fr. David Farland was removed by his superiors from a parish, and underwent treatment. He was then re-assigned as chaplin to the Fire Department of Springfield. For the next decade, he kept that post, without anyone in the Fire Department being informed of his history. Nor were the parishioners of the Diocese informed of his status.

In 2002, when the Dallas Norms mandated removal for credible accusations, he was dismissed from all ministry. However, this, too, was kept from the laity.

On March 8, 2006, after an inquiry from the Springfield Republican, the Diocese finally made an announcement that Farland had been removed from public ministry in 2002. Further details have not been released and his whereabouts are unknown.

But, Farland's assignment to the Fire Department was an exception, perhaps because he had worked with the department earlier in his ministry. Many of those removed from parish ministry found a safe haven much closer to hand – in the offices of the chancery.

The re-entry system via the chancery was created by Dupre – though, characteristically, he described the system as being urged on him by others, all of whom had professional credentials. Dupre said they were anxious to give the offending priests a second chance.

Apparently, this is how the chancery secretarial pool wound up with the likes of the Reverends Meehan, Kennedy, Wamsher, and Lavelle, all of whom were credibly accused of sexual abuse.

Meehan in particular is another example of how the system worked. After allegations, he was removed from full time ministry by Dupre in the early 90's and worked in chancery archives for the next ten years. When the Dallas Norms were approved in 2002, Meehan was one of the first to go. He was later laicized during the McDonnell administration (in June of 2006).

It is not entirely clear why Meehan's dismissal in 2002 was publicized by the Diocese, and not Farland's. We do know that a lawsuit against Meehan went forward and became public knowledge. We also know that the victim in the Farland case did not press charges, so there was no public announcement.

Meehan is believed to be one of the former priests of the diocese who still receive stipends and health benefits. The line item in the diocesan budget for "clergy on involuntary leave" has totaled $676,705 in the period 2003-2008.

Although Meehan and many others have been removed from public ministry, they have not been removed from the public. The Diocese does not keep tabs on their whereabouts –¬ nor are they required to, though there is newly proposed legislation to address reporting concerns.

In April, 2002, Dupre defended the record of the Diocese: "In a general fashion, the Diocese can respond that even before 1991, if a complaint of this type of misconduct was brought to the attention of the Diocese, it would be investigated and no priest who was the subject of such a substantiated charge would be permitted to remain in full parish ministry without the assurance of a competent mental health professional that it was appropriate to let him remain in the parish."

Dupre's statement raises questions because of his hypothetical language. Were in fact complaints brought forward, were they investigated, and were priests treated? If so, how many? Dupre doesn't say these things happened, and he doesn't say they didn't happen. And, this was his standard response over the next few years, despite ample opportunity to set the record straight. In this sense, the blanket of secrecy around priestly discipline may have worked against Dupre, and the Diocese, as much as it helped.

The comments are also an example of the hair-splitting legal language favored by Dupre. The phrase "…assurance of a competent mental health professional…" is neatly wedged between his responsibility for removing a priest and his responsibility for the priest's return.

Equally troubling is the use of the word "remain" with regard to ministry, for it strongly suggests that priests never left their parish posts, even while being treated. We now know that on at least a few occasions, the "leave of absence" or "sick leave" terminology was employed by Dupre and other bishops to excuse the situation to parishioners, without explaining it.

We said earlier that there was little for the commission to do in the spring. Yet, by late July, 2002, 34 cases had been reported for the year. By August, 2003, the count was 14 new suits against Lavigne and the Diocese, and 11 suits against other clerics.

One of the new suits against Lavigne named "higher-ups" for the first time.

Based on records found in Lavigne's personnel file, an attorney for the victim asserted that Auxiliary Bishop Dupre, in the period 1989-1991, "…is legally responsible…if he didn't know the abuse was going on, he should have known." This suit named four parties: Lavigne, Bishop Maguire, Bishop Dupre, and the Diocese.

This attack against the hierarchy, as opposed to the individual priests, was quickly countered. We next explore these, and take a look at the new legal strategy of the Misconduct Commission put into effect during July of 2002, as informal complaints began to solidify into lawsuits.

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We've already seen that the role of the commission was ambitious. They were supposed to help the bishop, the victims, accused priests, district attorney, laity, and general public. In hindsight, there was probably no way that they could have done it all.

But, their role was also increasingly ambiguous. The commission was created in 1992 to provide recommendations for action to the bishop, with a decided emphasis on the "Improper Conduct of Diocesan Personnel". But, over time, there was more than a hint that its members saw themselves as a sort of Swiss Army knife, ready to dispense justice, therapy or recommendations, depending on what was requested.

The new rules for the commission in July '02 stemmed from a ferocious fight among law enforcement and dioceses throughout the Commonwealth. Influenced by the Boston abuse scandal, the DA's of each diocese wanted lists of victims, or accused priests, or both, in order to review potential charges. These requests were resisted by all four dioceses. Yet, one by one, they complied. Springfield was the last to capitulate, around March 14, 2002.

In this excerpt from the Union-News on March 5, Mr. Bell, the commission chairman, explains that commission members questioned the benefits of turning cases over to civil authorities:

…..Bell is concerned that victims of sexual abuse by priests may have reached closure from those incidents and that contacting them now would do more damage.
"Some people have gone on with their lives. This will open old wounds. I understand the DA's interest, but at some point there has to be closure," said Bell.
He added that victims have a strong voice in resolving complaints to the panel.
"A lot of the resolution of these cases depends on victims and what they are looking for. For some, it is a matter of having it acknowledged, and that can bring closure. . . . For others it may be punishment," said Bell.
Said local District Attorney David Angier: "I don't want to denigrate the church's efforts on this, but I think this DA's office is better equipped to deal with these issues of abuse. We want to be able to inform victims of their rights and what services are available to them and allow them to make informed decisions as to whether they would like to take any (legal) action."

It is interesting that Bell puts the concerns of the commission in moral terms – forgiveness, punishment, acknowledgement and closure. This range reflects the first stage of awareness mentioned by Bishop Maguire, in which sexual misconduct is viewed as a moral failing. But, Bell's remarks are entirely about the attitudes of victims toward their abusers. The accused priests are absent from this picture. And, the original mandate of the commission (making recommendations for action against the accused priests) is absent, as well.

His comments suggest that the commission placed a higher value on "closure" than on justice - or, at least, that they preferred the justice that was found within church walls to that found elsewhere. This "either/or" thinking - either a "church" or a "state" solution - is a hallmark of church reasoning. Mr. Bell's arguments are not subtle; they plainly suggest that the church would be better off closing ranks than cooperating with the authorities.

Nevertheless, the ranks were not closing in the summer of 2002, but rather, splitting apart under the pressure. Increasingly, lawyers were showing up at Misconduct Commission meetings. And, the complaints were turning into lawsuits more often.

In July, the chairman announced that if an accuser filed suit, that action would now preclude a meeting with the commission: "We will not discourage anyone from filing suit, but if they do, it will negate any service that the commission could be to them."

One of the victims who was not allowed to appear before the commission countered: "We want to see Lavigne defrocked, and we want to be able to tell our story to the commission."

But, on advice of counsel, the commission insisted that Diocesan lawyers be present any time the victims appeared with lawyers. Bell said that he wanted members of the lay commission to avoid situations in which they might be called to testify about what was said at their meetings.

Indeed, the opinion of Bell, and the legal opinion itself (which almost certainly came from Mr. Egan, lead counsel), was prescient on this point. In the 2008 settlement, former Misconduct Commission members were subjects of interest during depositions and insurance lawyers wanted to examine commission documents for discovery. Diocesan lawyers resisted. They even tried to claim "confessor-priest" privilege for commission documents, but were turned down by Judge Agostini's Jan. 3, 2007 decision.

The legal team of the Diocese became more and more involved with the commission as the suits mounted, and there are signs that this legal wrangling moved into a new phase.

Dupre referred to this new phase when he said in October, "These abuse claims are proceeding in another arena – the legal system. This is a choice made by the victims and we respect it." However, this respect did not slow him from trying to throw many suits out of court. By the spring of 2003 the effort was well underway.

The legal strategy took several paths. Broadly, the Diocese claimed "church autonomy" any time they wanted to prevent civil suits that sought to examine church records. "Freedom of religion", "separation of church and state", "ecclesiastical privilege", and "confessor-priest" defenses were also raised.

Bishop Dupre said "You don't hand out money to people just because they ask for it. There has to be some legitimacy to that claim." He called the motions to dismiss "…a legal thing…" and said that they did not "…affect our willingness to settle with anyone who has a legitimate claim."

Many of these arguments denied that state authoritites could pry into the bishop-priest working relationship. Though this question had already been decided in the Boston abuse cases, Judge Welnick of Hampden Superior Court agreed to reconsider it in Spring, 2003.

When seeking to dismiss a suit by a North Adams man against Lavigne, Maguire and Rev. Thrasher, Attorney Egan argued that the court would be violating the separation of church and state if it examined the relationship between Lavigne and his superiors:

"No court or jury can constitutionally decide what a reasonably prudent bishop should have done. There is always the proper and understandable request for…the deepest pockets that can be found. But it cannot be allowed to trump constitutional restraints."

Dupre initially sought to have this one case (the Shawn Dobbert case) dismissed, but the idea was for the dismissal to serve as precedent, so that all such "higher-up" suits that questioned the bishop-priest relationship could be thrown out.

To buttress his case, Egan had canon lawyer Rev. Daniel Foley testify under oath that the relationship of a priest to his bishop is substantially different than that of an employee to a secular employer. The effort to dismiss cases did not cease, but only increased throughout 2003.

In Sept. 2003, Dupre attempted to dismiss five more suits on the grounds that the charitable immunity laws before 1971 precluded suits against the church. It was this attempt that prompted the DeMontigny affidavit which contended that the highest levels of the diocese were aware of Lavigne's problems at a much earlier time than they had admitted.

The other significant thing that happened in September, 2003 was that Dupre and Stobierski agreed to consider mediation for a group of consolidated cases. This mediation finally came to fruition in August, 2004 (with the Diocese under McDonnell), but not without a riotous interlude in the spring of 2004.

In retrospect the Stobierski mediation was almost certain to end badly, because by the time a settlement was worked out, in August, cooperation between the Diocese and its insurers must have been near an all-time low. Still, the pressure for McDonnell to find some resolution to the growing caseload probably forced his hand.

Additionally, it was urgent to settle cases - any cases - after the resignation of Dupre, so as to turn a new page, at least metaphorically. These twin pressures are a likely cause of the great disparity between the settlement amounts. While the average amount of the 45 claims in the 2004 settlements was $168,478, the average amount of the 59 claims in 2008 was around $76,000.

Even the ground rules of the two settlements were vastly different. In 2004, each claim was to be settled for a minimum of $80,000, with no cap. In 2008, the minimum was lowered to $5,000, and a cap of $200,000 was in place.

The lawsuits about church autonomy and charitable immunity and so on were not resolved, and eventually all of them were put on hold. The new idea broached during the early months of McDonnell's administration was to declare a 45-day truce on litigation. This went into effect on around April 15 and ended June 1.

The sides drew ever closer to settlement. On July 22, the long-awaited settlement of the 46 claims consolidated under Stobierski was announced. Of these, only 22 had actually sued the diocese. The other complaints had been brought to the Misconduct Commission.

The resolution of the 46 has to be counted as a victory for the new McDonnell administration. One of the victims went so far as to praise McDonnell, saying that the new man had done in four months what Dupre was unable to do for several years. And yet, this still left many unresolved cases. In time, these would grow to the 59 claims which were finally settled in 2008.

But, back in late 2004 and early 2005, the groundwork was laid for the recent settlement by an interesting legal maneuver. The "tolling agreements", so-called, are an ingenious solution to litigation.

The Commonwealth has a three-year window for filing civil suits in cases of sexual abuse. A victim must come forward within three years of first realizing that their emotional problems stemmed from sexual abuse. Since the Boston Globe Spotlight Team articles had kicked off on Jan. 6, 2002 with "Church Allowed Abuse By Priest For Years", it was apparent to both Diocesan and victim lawyers that the three-year window would arguably close on Jan. 6, 2005.

This explains why there was a flurry of last-minute legal activity on Jan. 5, 2005. Attorney Stobierski filed six suits on that day. Attorney Durso filed several more. Four other complaints were made to the commission. But soon, the necessity of filing suits would be altered by the tolling agreements.

In early 2005, a Diocesan official confirmed the existence of an agreement that would allow the Diocese and the accusers to try to reach a financial settlement without the Diocese being named as a defendant in the suits. This worked to the advantage of chancery officials almost immediately, because they could truthfully claim, as they did in a press release on Jan. 7, that "...the Diocese was informed earlier this week by Atty. Stobierski of his intention to file these legal actions against individuals; the diocese was not included in these civil suits...". Almost certainly, the removal of the Diocesan name from the suits was an attractive argument for making the tolling agreements.

In return for these concessions, the Diocese would suspend the ticking clock of the statute of limitations, so that in the event that the negotiations collapsed, the victims would retain their right to sue.

The reimbursement of the 7.75 million paid out by the Diocese was still being resisted by the insurers of the Diocese some six months later. This, too, explains the tolling agreements. The Diocese was unwilling to go forward and settle the remaining 30 or so claims left hanging without first coming to terms with their insurers about the unpaid bill for the 7.75 million.

Thus, the tolling agreements helped the Diocese by keeping the pending claims at bay.

From the victims lawyers' perspective, the agreements assured a future payday. They also guaranteed that their clients would not lose any legal rights due to the lapsing of the statues of limitations.

Chapter Twelve: Chancery Discipline

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Removal from the priesthood is called, formally, "laicization", and informally, "defrocking". It's one of the four disciplinary steps that a bishop can take against a priest. The first is placing the priest in "limited" ministry. Then, a further removal from, respectively, all ministry, priesthood and, finally, the payroll.

This four-part discipline has taken on great significance in the Springfield Diocese as successive bishops have grappled with the sex abuse scandal. The first type, "limited" ministry, was by far the preferred option up to 2002. At least four parish priests were removed for credible abuse allegations in the 1990's – and then reassigned to office work.

But, a more serious matter is that it is now clear that even after increasing amounts of evidence continued to pile up, bishops were reluctant to take any action against the notorious serial abuser Rev. Richard Lavigne.

Between 1966 and 1991, Lavigne was moved by the diocese to seven different parishes in the four western counties. His base of operations for the last 12 years or so was St. Joseph's in Shelburne Falls. He was pastor there, but appears to have lived at his own home in nearby Ashfield. The Diocese has admitted to receiving complaints about him of a sexual nature no earlier than 1986. At that time, according to the Diocese, he was evaluated and then returned to service.

He was placed on limited ministry only after he was arrested by the state police on five counts of sex abuse with about a dozen victims. It was only after his conviction in a court of law that he was removed from all ministry in 1992 as a condition of a ten-year probation imposed by Judge Guy Volterra.

Lavigne never did jail time. For the next 10 years, while on probation, he was a valid priest, was paid a monthly stipend of around a thousand dollars, and had full health and dental benefits. He was finally laicized in 2004, but only after considerable public pressure. Richard Lavigne is responsible for many of the allegations settled in 2008 as well as 17 allegations in 1994 and 24 in 2004.
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After 2002, the Dallas Norms endorsed by the U.S. Bishops and the Vatican made removal for credibly accused priests mandatory. This change reduced the bishop's control over personnel.

The Misconduct Commission (a lay body that reports to the bishop about allegations) was formed in Dec. of 1992. The original title was the Commission to Investigate Improper Conduct of Diocesan Personnel.

But, to understand laicization, it's helpful to go back to a time when complaints were made directly to diocesan officials. What does laicization mean, and why is it important?

"Defrocking" simply means that a man is returned to the lay state. But, nothing else about it is simple.

In a theological sense, the church holds that priesthood confers a permanent "mark" on a man's soul. This mark cannot be erased, even if the priest is laicized. The motto "once a priest, always a priest" sums it up. Or, as Bishop Dupre once said: "According to theology and our faith, once you are ordained a priest, in the eyes of the church, you are a priest forever - whether you go to heaven or you go to hell. That can't be taken away from you."

But there's another reason that laicization is important to a discussion about recent Diocesan history – documents. A very complete paper trail between the local diocese and the Vatican is necessary for laicization. It would not be an exaggeration to compare the Vatican to the Supreme Court in these matters. Letters of complaint, legal briefs, medical evidence, admonitions, clinical evaluations and progress reports – a veritable gold mine of discovery for lawyers – accrues around laicization proceedings. It is not hard to see why these documents were at the heart of the recent 8.5 million settlement case.

In 1988, a complaint was made directly to Springfield Diocesan officials about Rev. Ronald Malboeuf. The complainant alleged 5 years of abuse beginning when he was 10 years old in the mid-1960's. Malboeuf left ministry almost immediately after the complaints and was laicized in 1989. We will return to this victim's story in a while and follow what happened when he approached the Misconduct Commission with his story.

Another victim of Malboeuf's came forward in 2003. His claim, too, involved 5 years of abuse in the mid-1960's. This claim became part of Attorney Stobierski's consolidated group which was settled in 2004.

The speed with which the Malboeuf laicization took place (accused in 1988, defrocked in 1989) may surprise some, but there's a simple reason. It was done at the request of Malboeuf. This type is one of those called "administrative". For the record, Bishop Dupre stated some four years later that Malboeuf's voluntary process was underway before any complaints were made.

Involuntary laicization ("judicial") is another matter. Dioceses' differ in their policies, but a significant side effect of administrative laicization was that Malboeuf was no longer supported by the Springfield Diocese after his defrocking. This is significant because it was the support of Lavigne that caused such a bitter controversy between parishioners and the Diocese. The central funds of the Diocese are supported by a 6% tax on recurring parish income (weekly collections).

In 2002, while explaining to the Union-News why Lavigne was not defrocked, Dupre said Catholic bishops have been reluctant to use the laicization process against "notorious and serial" child sexual abusers because the process is so cumbersome.

"The priest has all the rights any person would have - the right of due process, the right to a lawyer . . . There are rules of evidence and a statute of limitations and on and on and on," he said.
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In a previous post we described how Bishop Marshall, while still in Vermont, removed the Rev. Edward O. Paquette from ministry. We now know that Paquette was a serial offender, and that Marshall knew this. Fortunately, in 1978, he acted on that knowledge. But, when he tried to get another repeat offender involuntarily laicized a few years later, his efforts met resistance from Rome.

It's worth noting that the statute of limitations observed by the Vatican for sex crimes differs from U.S. laws. Here, a patchwork of state laws is the rule, but the Vatican view is consistent: abuse claims must be filed "by age 28". Few of the abuse cases in the Springfield Diocese would have gone forward to settlement with this limitation. And, absent the threat of a civil charge, it's questionable whether the Diocese would have settled any of the claims against it in recent years.

Statute of limitations issues are still with us. The only reason that the Rev. Gary Mercure of the Albany area was liable for charges of sexual abuse in the Commonwealth was that he had crossed state lines. This extended the statue. Professor Marci Hamilton advocates for SOL reform across the board in her book, "Justice Denied: What America Must Do to Protect Its Children".

It was during the 1980's, while still in Vermont, that Bishop Marshall traveled the same road as Cardinal Bernadin of Chicago, a proponent for better scrutiny within priestly ranks. Formerly, Bernadin had been willing to reassign some priests to parishes after they underwent apparently successful treatment. But in 1992, he said "I now feel that anyone who has engaged in sexual misconduct with a minor should not be placed in parish ministry again."

It was Bernadin who broke the mold by establishing a three-person lay commission to address the abuse problem in 1991. The group included a judge and social services official. They recommended a permanent group of lay advisors. Their idea was to report directly to the Cardinal, by-passing chancery officials. Soon, the Fitness Review Board, a 9-member panel of lay advisors, began their work in Chicago.

Chicago has continued to break ground. For example, the archdiocesan web site has dozens of pages of information on abuse, and lists over 60 accused local priests. The Springfield Diocese has shown no inclination to imitate these steps.

However, on Dec. 14, 1992, the Springfield Diocese did start a group modeled after Chicago's initiative. The original title was the "Commission To Investigate Improper Conduct Of Diocesan Personnel". Local press accounts ascribe its creation to two signal events: Lavigne's arrest (1991) and conviction (1992).

As we have seen, Paquette, the repeat offender, was fired by Marshall in 1978, but he was never laicized (removed from the priesthood). Nor, probably, was he removed from the payroll. It's likely that during the 80's the Burlington Diocese, like many others, had a "clergy on involuntary leave" policy which continued to pay a monthly stipend and health benefits. For example, the tab for this category in FY2007 for the Springfield Diocese was $167,272.

The Springfield commission was said to be an independent board, with clout. Dupre often talked of "following their recommendations" and praised their professionalism. The board was staffed by volunteers but many were from the social work and counseling professions.

But, to judge from press reports, the effectiveness of the commission was debatable, even if Dupre proclaimed it to be an unqualified success. In Feb. of 2002, he wrote to the 127 parishes about the recent spate of allegations of abuse against priests in Boston. He said that: "…thanks to that initiative [the Misconduct Commission], we are in a relatively good position…".

But, testimony from victims paints a different picture.

Follow-up and financial settlements seemed to be wrapped in mystery, and progress could be sluggish. Returning now to the accuser of Malboeuf mentioned earlier, the diocese in 2002 had yet to compensate the victim, though the allegations had been on the books since 1988. That's a 14-year wait.

Not only that, but the victim accused the Misconduct Commission of stalling in order to weaken his case. He told a reporter for the Boston Globe that it was suggested that his retention of an attorney might lead to "complications". The commission urged him to seek counseling, instead. After he hired a lawyer, a Diocesan lawyer offered the man $20,000 in compensation. This figure is often seen in negotiations, since it is the limit for damages that charities and non-profits must pay out – the so-called "Charitable Immunity Cap".

The victim complained that the amount of the offer and the advice of the commission conspired to deny his rights: "I was very naïve. It turns out they strung me along so the statute of limitations expired. I can't file a suit, but they won't offer a settlement that comes anywhere near the amount of money it cost myself and my family."

In the end, his lawsuit became part of the 2004 settlement. He received an award some 16 years after he notified diocesan officials, and around 40 years after the abuse.

In another case, a victim said he brought his complaint of molestation by Rev. Richard Meehan to the commission prior to spring, 2002. At that time, Meehan was employed in chancery offices after being removed from parish work for abuse allegations. The victim said that the commission did not keep him up to date on its investigation, and failed to notify civil authorities of the alleged abuse. He also said members of the commission told him that the priest was a sick man – that he should forgive the priest, pray for him, and move on. The victim eventually filed suit against both the priest and the Diocese. Both suits were settled in 2004.

By the early part of 2002, the fallout from the Boston abuse scandal, in which 500 cases were brought forward, was beginning to prompt questions about Misconduct Commission proceedings in the Springfield Diocese.

In Feb. of 2002, the commission reported that in the past three years they had considered four cases of misconduct, but none were of a sexual nature, and none were substantial enough to refer to law enforcement. Bishop Dupre told the press that no priest had been removed since 1994, and that the diocese had not faced a lawsuit in more than five years.

But all of that apparent calm was to change within a few months.

Chapter Eleven: Five Bishops

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Bishop Weldon (1950-1977)
Bishop Maguire (1977-1992)
Bishop Marshall (1992-1994)
Bishop Dupre (1995-2004)
Bishop McDonnell (2004-present)

The Diocese of Springfield emerged from the rib of the Boston Diocese in 1870. The controversies caused by so-called trusteeism (lay participation and sometimes even control in decision-making) were by no means completely solved by the late 19th century. When bishops lobbied "corporation sole" through the Massachusetts legislature, it became a partial remedy. The Boston Archdiocese became a corporation sole in 1897 and Springfield followed one year later.

"Corporation sole" centralized power by creating a civil instrument through which church property could easily be handed down through the person of the bishop, who represented the corporation sole as long as he was in office. When the bishop died or left office for any reason, the new man immediately became the personification of corporation sole. Thus continuity was preserved.

This avoided the patchwork of unwieldy (and occasionally, confrontational) methods of handing down property through probate or individually deeded and owned property. It seemed like a good idea at the time, and certainly had the virtue of simplicity.

But, it is now recognized that corporation sole can be an awkward complement to canon law. And, in cases of financial stress, or legal fights over assets and liabilities, many of which we have seen over the last five years or so, corporation sole can create as many problems as it solves. We will address some of these issues in future posts.

The first administrator of the Springfield Diocese was Irish and long-lived. He set the tone. Bishop O'Reilly (1870-1892) was followed by Bishops Beaven (1892-1920) and O'Leary (1921-1949). In 1950 Bishop Christopher J. Weldon began his own long tenure and becomes the first of the five bishops on our list within living memory and also the first of the bishops who appears regularly in press accounts of the abuse scandal.

One of the striking things about the list is that the only home-grown bishop is Dupre. Thomas L. Dupre grew up in poverty in Holyoke and spent his entire career in western Massachusetts, except for education as a canon lawyer in Montreal and Washington, DC. He went into the chancery in 1977 and took on increasingly more important jobs. He was ordained an auxiliary bishop in 1990 and took the top spot in 1995.

Dupre served the Diocese from his ordination as a priest in Springfield in 1959 at the hands of Bishop Weldon until he left under highly questionable circumstances in Feb. of 2004.

After Dupre left, Bishop McDonnell was brought in from New York, where, among other assignments, he led Catholic Charities. Coincidentally, that was one of the positions held by Bishop Weldon as he worked his way up the New York career ladder some 45 years earlier. There, Weldon got his start as an executive, and went on to establish a reputation as a master builder in 50's and 60's Springfield.

In fact, a lot of the projects that Weldon finished were either planned or started by his predecessor, Bishop O'Leary. Weldon served a long time, but O'Leary had served just as long. It was O'Leary who did the spadework that resulted in the new Worcester Diocese splitting off from Springfield in 1950. Thus, both Weldon in the now reduced Springfield Diocese and Bishop Wright in the brand-new Worcester Diocese began work at a promising time for Catholicism, during a postwar uptick in prosperity and population.

Twenty-seven years later, Weldon was ready to retire. The man who replaced Weldon, Joseph Maguire, had been ordained an auxiliary bishop in the Boston area in 1972. He moved to Springfield to assist a worn-out Weldon and was tapped to lead Springfield in 1977. Bishop Maguire, in turn, retired in 1992 and is still with us. Bishop Emeritus Maguire celebrated his 89th birthday in September, 2008, and lives in Springfield.

Like Maguire, Marshall was already a well-established bishop at the time he was brought in from Burlington, Vermont to succeed Maguire in the spring of 1992. Marshall was immediately confronted with fallout from the arrest of Rev. Richard Lavigne in Chicopee by state police in 1991. After a plea bargain, Lavigne was convicted of molestation in June, 1992.

Marshall must have soon realized that Lavigne was a very sick man. In the early 90's, multiple victims in the wake of Lavigne's 25-year career came forward after the initial twelve charges. Lavigne was banned from ministry as a condition of his probation, and in 1994 the Diocese announced that it had paid out 1.4 million in settlement funds to 17 victims. That figure later rose to 1.7 million, when more confidential settlements were made. But, as bad as his conviction and the subsequent settlements may have seemed to Marshall and others at the time, Lavigne's legacy would prove more damaging yet.

Reflecting on the choice of Marshall some years later, the Jesuit scholar Rev. Gerald Fogarty said: "Marshall was highly respected, so his transfer from Burlington to Springfield would be indicative there was a problem that needed to be solved there. By and large, bishops of Springfield stay there. In this case the transfer of a bishop from one diocese to another was indicative of a problem."

Indeed, by the time he arrived in Springfield, Marshall himself was only too familiar with how bad the problem could be.

Marshall's education came from Father Edward O. Paquette.

Shortly after Marshall became Vermont's bishop in 1972, Paquette, who grew up in Westfield and had been in ministry for 15 years, wrote to him from Indiana, asking for a job. "I did have problems but received medical treatment, and I am now cured", wrote Paquette. He did not state what the problems were.

On Oct. 21, 1974, a pastor from Rutland, Rev. James Engle, wrote to Marshall that he wanted Paquette gone: "Dear Bishop Marshall, I am greatly disappointed and very saddened over the report I received from the (Rutland) hospital that Father Paquette sexually molested two young men while on communion calls in the hospital. As you readily understand, it is imperative that Fr. Paquette be removed from the Rutland area immediately."

"I would suggest also," Engle added, "that since his removal from the parish must be done quickly, it should be done without fanfare and farewell parties and that it be publicly announced as a sick leave."

Marshall pulled him out of Rutland and tried rehabilitation. He sent Paquette to the House of Affirmation, a treatment facility in Whitinsville, Mass. Paquette then served in Montpelier, seemingly without incident (evidence of incidents came later) and was transferred to a Burlington parish in 1976.

On April 4, 1978, Marshall found himself writing to the head of the House of Affirmation: "Despite the demands of two sets of irate parents that 'something be done about this,' Father Paquette's pastor and I are determined to take the risk of leaving him in his present assignment. Our thinking is that, knowing the awareness of others, concerning his problem, Father Paquette will have reason for 'self-control.'…do you think that the danger of scandal is already too risky?"

The answer came in a three-page internal memo from Paquette's Burlington church to the bishop. The memo stated that in addition to "fondling of privates of altar boys," Paquette had told stories to local high school students about "the occult and exocism (sic) process in fairly minute detail," including some graphic sexual content.

Marshall acted. He took the hard line and terminated Paquette, removing him from all ministry on April 17, 1978.

We will hear from Paquette again, for he has several connections to the Springfield Diocese. He's now close to 80 and has health problems, and though he's not worked in several decades, he gets by. He was left an inheritance by a parishioner of Our Lady of Blessed Sacrament Church in Westfield. For at least the last twenty years or so he's lived in the ranch-style house built by his parents on Belleview Dr., in a rural part of Westfield.

It was Paquette who was the accused priest in the jury award of 8.7 million dollars to a Vermont man in May, 2008. The verdict was not against Paquette, but against the Burlington Diocese, for negligence (950,000) and "reckless" negligence (7.75 million). The Springfield Diocese reacted to the verdict with this editorial.

Despite the speculation of the editorial, when another jury in a different case spawned by Paquette's actions was allowed to hear testimony about present-day conditions, they, too, awarded massive punitive damages. Again, the defendant was the Burlington Diocese. The award was for a total of $3.6 million dollars and was announced on Dec. 17, 2008.

There are other cases against Paquette proceeding in Vermont. His victims are estimated in the "hundreds" by one of the plaintiff's lawyers. The record shows that Paquette abused children throughout his priestly career, starting with his first assignment in the Fall River Diocese in 1957. According to statements given to the press by Springfield Diocesan spokesman Mark Dupont, Paquette was never authorized to serve as a priest in the Springfield diocese.

However, the Rev. Timothy F. O'Connor of Westfield, who was an advisor to Paquette after his dismissal from Fall River, consulted Bishop Weldon, and Paquette was assigned to Masses at a "sisters institution" in the Springfield Diocese, according to a 1963 letter. The letter was filed in court in connection with the Vermont suits. O'Connor recommended that Paquette be incardinated, or permanently assigned a job in a diocese.

With this background about Paquette it's not hard to see why one of Marshall's initiatives after arriving in Springfield and confronting the Lavigne scandal was the establishment of a "misconduct commission" which could review allegations. At the time, this was an entirely new idea.

According to a 2004 article in the Boston Globe, "The late Bishop Marshall, who created the Misconduct Commission, was a hard-liner who refused to let priests found to abuse children back into the church."

For a while, Marshall and Auxiliary Bishop Dupre worked together in the chancery. In a Jan. 1993 memo to Marshall, Dupre suggests creation of "privileged" files, to contain "…only those materials which are truly private and personal…these are some questionable areas…letter of complaint against the priest. Perhaps it should be in the 'privileged file,' if handwritten, and kept in the regular file if typed…"

It's clear that some chancery activity was devoted to keeping track of allegations. These files – which were later reorganized by Rev. Richard Meehan – were a flashpoint during the 8.5 million settlement case of 2008, not least because Meehan himself was dismissed from ministry and later defrocked because of credible abuse allegations.

After Marshall died of bone cancer in 1994, spokesperson Mark Dupont told the press that an administrator would be named within eight days (although the actual appointment of a new bishop was not expected for about a year, following the usual deliberate pace of papal appointments).

A committee of six, which included Bishop Dupre, Rev. Leo Leclerc and Rev. Richard Sniezyk, all high-ranking chancery officials, would make the decision about the new administrator, according to Dupont.

The choice for administrator, and, eventually, Bishop, proved to be Auxiliary Bishop Thomas L. Dupre, who was installed as the seventh bishop of the diocese on May 8, 1995.

NEXT: Chancery Discipline

Chapter Ten: Confidentiality Concerns

2009-04-15T11:33:00.001-07:00

I said in the previous chapter that our Diocese had failed to observe the Dallas Norms with regard to confidentiality agreements and open and transparent communication with parishioners. On the last two points, I can prove that argument with two words: Thomas Dupre. Or should I say "Thomas Dupre?" We have not heard hide nor hair of Bishop Thomas Dupre from the Diocese for many years now.

In a Nov. 24 letter to the editor of the Berkshire Eagle, Diocesan spokesman Mark Dupont defended the reporting of the Catholic Observer and said that he invites comparison to other media. Okay, let's do that.

We've heard several times from the Springfield Republican in bylined articles about Dupre – where he is housed, what conditions he lives under, and who is supporting him. See especially "Bishop Dupre Still In Treatment", July 22, 2006. Not surprisingly, we learn that he's supported by the generosity of the parishioners of the Diocese of Springfield, for the most part.

On the other hand, we've not learned anything substantial about Dupre from the Catholic Observer over the last several years . Dupre is not a person that the Catholic Observer needs to take an interest in, or so I was told in a recent letter from Mr. Dupont. He tells me this despite the fact that Dupre was the CEO of the Diocese for close to ten years, and left his position in highly questionable circumstances. This abandonment of responsibility is not openness, it is not transparency, and it is not right.

It's a little harder to demonstrate why confidentiality agreements are so important. Don't the victims deserve privacy? Certainly they do, as much as they want and need. But, we need to remember that the claimants were not the parties. It was the Diocese that sued their insurance carriers. The Diocese and their insurers fought it out over who should pay what, resulting in a cash settlement that will resolve the legal claims of the victims.

But, masking the terms under which the legal fight was resolved has nothing to do with the privacy of the victims. It has everything to do with the privacy of the Diocese and its insurers - both of whom should be reporting to parishioners.

The settlement is more than an agreement to drop litigation. It is itself a sort of court decision, because once the suit for declaratory judgment is begun, the terms of any agreement to dismiss must be approved by the court.

This is why both sides were reported to be petitioning the court for permission to have the suit dropped. The fact that the judge accepted the petitions shows that he was satisfied with the terms, which included the mediation arrangements, allocated court costs, range of payouts, percentage retained by claimant's lawyers, and so on.

The problem is, once the suit is settled, it's not easy to know how and under what conditions it got settled. This is why the Dallas Norms of 2002 stipulated that confidentiality agreements in settlements should be confined to protecting the victims, and not used to protect bishops and institutions. Unfortunately, management of the Diocese of Springfield has apparently chosen to do that very thing.

Although the settlement is not the only reason for studying Diocesan history, it's the most proximate and compelling. We need to know more about the administration of this Diocese that we support with our hard-earned money. It would also be good to know how we got into a position of throwing away close to 5.5 million dollars.

Over the last 50 years or so, coinciding to the employment of the law firm Egan, Flanagan & Cohen, the Diocese has developed a well-defined playbook of strategies for dealing with allegations of sexual abuse. What follows over the next few chapters is an examination of recent Diocesan history that will illuminate some of these policies, and their outcomes.

We begin by tracing the legacy of Bishop Weldon and Maguire and the arrival of Bishop Marshall in 1992, just in time to confront the disastrous news about Rev. Richard Lavigne.

NEXT: Five Bishops

Chapter Nine: Settlement Day?

2009-04-15T11:32:00.001-07:00

"Settlement" conveys finality, but on November 20, 2008, what might have been a final "Settlement Day" for the survivors of sexual abuse in the Springfield Diocese (dating back to as far as 1948 for the earliest claim) was instead a day of dubious achievement. Under the terms of the settlement, the final payments were scheduled to be made on November 20 for close to 60 claims made against the diocese.

But, an occasion which might have carried an air of finality, and maybe even hope, instead feels quite different, at least to me. I can't shake the feeling that this is a milestone that may be a millstone, dragging the Diocese and it's members further down, instead of lifting us up.

For proof, look at the tone of the announcements back in July, which ranged from calculated understatement from Bishop McDonnell to calculated overstatement by our lawyer, Mr. Egan, who found that "we were right all along", though he failed to explain how, if we were so right, we left $3.5 million on the table. Still, there was hope in July that the faithful Catholics of the Diocese would hear details of the settlement, other than the fact that it was reached. But, it was not to be.

It is remarkable to me how little coverage of the settlement has appeared in the Catholic Observer, the official newspaper of the Diocese. There were three articles in the July 11 issue. But, over the next 9 issues, there was only an account of how many had accepted the settlement on August 22. This falls far short of what was supposed to happen, according to the Dallas Norms.

Shortly after the 2004 settlement, attorney John Stobierski commented in the Springfield Republican: "The Dallas norms set forth the fact that these settlements will not be done in secret any longer. To that end, my clients want the names of priests who allegedly abused them made public".

Let's look closer at these guidelines from the Dallas Charter published on Dec. 8, 2002, by the U.S. bishops, in the "Charter for the Protection of Children and Young People" (Revised Edition)

ARTICLE 3. Dioceses… will not enter into confidentiality agreements except for grave and substantial reasons brought forward by the victim/survivor and noted in the text of the agreement.

ARTICLE 7. Each diocese… will develop a communications policy that reflects a commitment to transparency and openness. Within the confines of respect for the privacy and the reputation of the individuals involved, dioceses… will deal as openly as possible with members of the community. This is especially so with regard to assisting and supporting parish communities directly affected by ministerial misconduct involving minors.

Reading these noble goals of the Charter, and comparing them to the response of the Springfield Diocese over the five months before Settlement Day, November 20, I'm wondering: Where is the transparency? Where is the openness?

Please, if you haven't already, go to the editorial in the Diocesan newspaper, written at a critical moment, and tell me – does it seem that management has learned something? does the response demonstrate transparency? does it feel open, contrite, and vulnerable? or, does it feel like something else entirely?

If you go to the Diocesan web site right now (www.diospringfield.org) you will find nothing about the settlement. It is as if it had never happened. The only exception to this is that some digging may unearth the press releases from July 2. By the way, speaking of open communication, there is not even a way to email the bishop on the web site.

When the church media will not do the job, it falls to other media to step up. While the Springfield Republican and Berkshire Eagle have been diligent, they cannot do it all. So maybe it's understandable that even though the Springfield Republican published a list of all accused priests from the 2004 settlement on Aug. 17, 2004, a companion list for 2008 has not appeared.

But, since this type of disclosure is certainly encouraged, if not mandated, by the Dallas Norms, we are entitled to ask: why did the Diocese not follow suit, and publish such a list in 2004? Why did no information about the 2004 settlement get posted and remain on their web site? And, a more current question, why has the Diocese not used their web site to publish information about the 2008 settlement, and list the accused priests?

Another question. Knowing all that we do about the goals of the Dallas Norms listed above, why is it that the latest round of victims were forced to sign confidentiality agreements, in apparent violation of the norms, consisting of some 16 pages? All of these questions remain unanswered.

For this reason, the date of November 20, 2008, though it promised to be a Settlement Day, did not signal "finality" for the survivors of sexual abuse in the Diocese.

Chapter Eight: Prelude

2009-04-15T11:30:00.000-07:00

While continuing with this examination of the 8.5 million dollar settlement, I thought it might be good for you to read something about the history of the Springfield Diocese prior to this year's settlement. The following goes back a long way – about a year before the 2004 settlement of 7.7 million which played such a prominent role in the recent settlement.

The affidavit below was filed on August 15, 2003. It was filed on behalf of the victims after lawyers for the insurance companies of the Diocese sought to have the victim's lawsuits dismissed.

The attempts at dismissal stemmed from a belief that the assets of the Diocese were protected by a charitable immunity law up to 1971. It appears from the context that the Diocese wanted to make the pre-1971 cases go away. This affidavit gives several good reasons why the pre-1971 cases should not be ignored, and why the Diocese should be held accountable.

In the end, the pre-1971 cases were not dismissed. They lived on to be included in the 2004 settlement. The issue of who should bear the cost of settling them was reargued during the 2008 litigation.

____

DeMontigny Affidavit

The following is the affidavit of Maurice E. DeMontigny, a confidant of the late Bishop Christopher J. Weldon and longtime lay religious officer in the Springfield Roman Catholic Diocese. This affidavit was filed in opposition to a recent court motion by the diocese seeking the dismissal of suits relating to sexual abuse allegations before 1971, a period when charitable immunity laws protected the church.

I, Maurice E. DeMontigny hereby make affidavit upon my personal knowledge and belief as follows:

1. I reside at 210 Johnson Road, Unit 4, in Chicopee, Massachusetts.

2. Until I moved on June 30, 2003, to Chicopee I had lived at 87 Sunnybrook Road, Springfield, Massachusetts, for 46 years (April 20, 1957).

3. I have been married to the former Madeline T. Vincent for 50 years (June 20, 1953). I retired on Sept. 25, 1992, after 41 years of service to the City of Springfield as the Water Registrar, (better known as the "financial officer").

4. My family has been members of the Parish of Saint Catherine of Siena at 1023 Parker St. in Springfield since the parish was first formed; we were part of the original founding parishioners. I was parish religious education coordinator under the Confraternity of the Christian Doctrine (CCD), religious education ministry for a number of years. I have also been the parish representative to the Springfield Deanery of the CCD and was appointed to the Diocesan Board of Religious Education. As a member of both the Deanery and Diocesan Boards I served on many committees and assisted with many conferences. I was appointed the Springfield Diocesan Treasurer for the New England Congress of Religious Education and later appointed chairman of another congress of Religious Education and was the co-chairman for a third congress. All of these appointments were made by the Most Rev. Bishop Christopher J. Weldon.

5. I enjoyed a close personal relationship with Bishop Weldon, and with my pastors Father Thomas P. Griffin and Father Leo E. O'Neil, who in 1980 became auxiliary bishop in Springfield. My pastors gave me keys to our church and the diocesan director of religious education, the Rev. Howard McCormick, gave me keys to the diocesan office buildings for religious education. At the Diocesan Office (of) the Confraternity of Christian Doctrine, on Carew Street, I actually supervised a staff of personnel and volunteers on a part-time basis and spent weeks of my vacation auditing funds, making disbursements, and reporting to Bishop Weldon. I feel as though I was a confidant of my bishop, my pastors, and Father McCormick.

6. I specifically recall one Sunday when Richard Lavigne was a curate at our parish (St. Catherine's, where Lavigne was posted between June 1967 and May 1968), Father Griffin called to me and asked to speak with me outside. Although I often spoke with Father Griffin, this time was unusual in that I noted urgency in his manner. He told me he needed my help for a serious and grave matter and asked that our conversation be held in the strictest confidence. He told me that "someone in the parish had come to him with a complaint on Father Lavigne that involved their sons and they could not press charges with the police." He inquired as to whether one of my young nephews who also attended St. Catherine's was also having a "problem." He further told me that the family did not want to go to the police and that he wanted to know "how widespread the problem was and who and how many of the boys in the parish were involved." Father Griffin was very upset and breathing hard. He was being careful with his words. I understood him to be confiding in me that the family had accused Richard Lavigne of molesting their child and he suspected that other boys may have been molested as well.

7. On another occasion shortly thereafter I remember casually asking Father Griffin in a friendly way, "how are things?" His response was "no change, the family hasn't changed their position" or words to that effect. He was troubled with the statement. I was not looking for a follow-up on our earlier conversation but got it.

8. I recall another time when I was in the rectory with Father Griffin and Father O'Neil, this was one of the very first days that Father O'Neil came to our parish. I would say that it had to be about late June or early July of 1968 because Lavigne left on June 29, 1968. We were disapprovingly talking about Father Lavigne's close activities with boys. I recall Father O'Neil saying, "You won't be seeing any boys coming into my room," or something to that effect. I also remember him commenting, "I know one thing, no one will be coming into my room." I had the distinct impression from Father O'Neil, that he did not want to come to St. Catherine's parish because of Father Lavigne.

9. I believe it was in 1972 when a Grand Jury was investigating (altar boy) Danny Croteau's murder that I was in the parish with both Father (later Bishop) O'Neil and Father Griffin. Father Griffin started up a conversation about Lavigne and the murder. I felt he was referring to our prior conversation with his inquiry and with some of the references he made. He once again inquired about my relative and how he was doing with all of the talk, meaning the murder and the focus on Lavigne.

10. During the Grand Jury investigation I was passing information I received from Gene Galeziowski (father of plaintiff David Galeziowski) to Father Griffin, who told me he was passing on the information to Bishop Weldon. Gene Galeziowski worked in the Hampden County Courthouse and had learned details about the investigation into Father Lavigne's (alleged) involvement in the murder. Given the fact I knew Bishop Weldon to be quite close to Father Griffin and given the fact I was part of the process in passing information to Bishop Weldon, I am sure that Father Griffin would have directly reported to Bishop Weldon any allegations of sexual abuse.

11. I recall a specific incident in the early 1970s when Lavigne told me that his pastor had admonished him concerning boys being in his bedroom. I believe the pastor was Monsignor Harrington, but the records would tell for sure the pastor's name. The pastor was upset about boys being in the rectory and in Lavigne's bedroom. Lavigne was contemptuous of the pastor's attempt to exert his authority over him. He said something to the effect that "they can't do anything to me" and laughed about it.

12. In the early 1990's (when) the negotiation sessions (regarding a lawsuit targeting Lavigne) were taking place, and I was in attendance, one of the victims told me on a personal basis that Father Griffin walked in on them in the kitchen of the rectory and a sexual act was taking place. This incident took place during Lavigne's residency from May 6, 1967, to June 29, 1968. I am sure that Father Griffin would have admonished Lavigne and reported this to Bishop Weldon.

13. I author this affidavit in support of the victims of clergy abuse who have come forward recently and those who have yet to come forward, to document my personal knowledge that diocesan officials (including my late friend Bishop Weldon) knew that Father Lavigne was molesting children as early as the late 1960's.

14. These are not new allegations that I am making. When Lavigne was accused of molesting children in the early 1990's, I wrote a personal statement for the victims' attorney (Exhibit 1). There was a meeting with Bishop Marshall as part of the settlement with the victims who came forward in the early 1990s. I accompanied the victims and participated in that meeting as I had in the negotiation sessions. I took issue with Bishop Marshall's statement that neither the priests nor the Bishops had any idea of (Lavigne's) conduct. I wrote a polite letter to him indicating that I knew that as early as the late 1960's, my pastor, and in all likelihood Bishop Weldon, was aware of accusations that Lavigne had molested children. (Exhibit 2). I have also recently learned that Bishop Marshall's statement then was less than truthful as the diocese has now publicly admitted they knew in 1986 that Lavigne had molested children. We were never told at that meeting that the Diocese knew in 1986 that Father Lavigne had molested at least one child, and had been sent for an evaluation.

15. I believe, based upon my familiarity with the workings of my parish and of the Diocese of Springfield, that Diocesan officials knew, as of the late 1960's, that Lavigne was a child molester.

Signed under the pains and penalties of perjury this 15th day of August, 2003.

Maurice E. DeMontigny

Chapter Seven: Progress Of The Suit, Part 3

2009-04-15T11:25:00.000-07:00

Jan. 3, 2007 - March 20, 2007 (contd.)

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.

P.93

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.

P. 101

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."

P. 111

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:

http://www.bishop-accountability.org/ma_springfield/newsandviews.htm

The article by Kathy Shaw titled "Vatican Papers Spark Debate" from the Worcester Telegram & Gazette, Aug. 25, 2005 is fascinating. It's online at:

http://www.snapnetwork.org/news/vatican/vatican_papers_spark_debate.htm

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:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=901663

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:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ma&vol=sjcslip/sjcMay04g&invol=1

"Talbot" Appeal (Nov. 24, 2004) can be found at:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ma&vol=sjcslip/sjcNov04r&invol=1

Chapter Six: Progress Of The Suit, Part 2

2009-04-15T11:21:00.000-07:00

Oct. 3, 2006 - Jan. 3, 2007

Little happened in this period until the Jan. 3 decision and order, which was momentous indeed. First, a motion was made on Oct. 16 by the insurers for leave to file yet another paper in support of their motion to compel discovery. This was allowed by the judge.

On Jan. 3 in the new year the judge issued his long-awaited decision about the 7,700 or so documents held by the Diocese that the insurers wanted to see.

In this 11-page decision the judge first categorized the requests, considered a summary of the arguments advanced by the Diocese and insurers in turn for each category, and then made his decisions.

1. Attorney-Client Privilege

The first category, Attorney-Client privilege, was a big winner for the Diocese. The insurers had argued that the duty to cooperate trumped the usual deference paid to attorney-client confidentiality. Not so, said the judge. He found this argument weak because the insurers could point to no specific clauses which imposed a special duty, other than boilerplate contract language. Absent a specific clause, the judge cited case law showing that the duty to cooperate, though important, did not rise above the importance of client-lawyer cooperation and protection for the work-product doctrine.

However, there were a few problems with the documents that the Diocese was trying to shield under this rubric, because not all of them were bona fide attorney-related documents. The judge found that an undated newspaper article fell short of the definition, and that a file of notes summarizing the contents of two computer discs had to be either turned over to the insurers, or to the judge, to be viewed in private to determine admissibility. Otherwise, he ruled, documents in this category could be retained by the Diocese.

2. Priest-Penitent Privilege

Here, too, there was a split decision, but the judge ruled that the insurers should see the majority of these documents. In the first place he found no support in the statute or in case law to justify the "…sweeping assertion [of the Diocese] that any statements or acts transmitted from one individual to another…" were covered by the privilege, simply because one of them happened to be a priest.

In examining Exhibit C, a list of the documents withheld under this privilege, the judge found that a letter from Bishop Marshall to Richard Lavigne about unpaid bills obviously did not fit the description of "priest-penitent" privilege and ordered it released. It was not clear whether the other documents listed qualified or not, but since he considered it to be a question of fact, the judge ordered the entire file submitted to him for an in camera review.

3. First Amendment, Ecclesiastical Privilege, and Religious Autonomy

This is the longest of the 5 sections. He first points out that materials which are devoid of substance (such as a FedEx airbill), or those obviously not confidential (such as various newspaper articles) do not deserve protection and must be immediately handed over. He goes on to rule that the various privileges claimed by the Diocese due to religious freedom, autonomy or internal church policies do not apply to the case before him, and that all documents shielded under these defenses must be turned over.

The Diocese had sought to keep many documents, including laicization documents, citing the confidentiality requirements of the Apostolic Letter Sacramentorum Sanctatis Tutela (SST). The documents were said by Diocesan lawyers to "pertain to matters of church doctrine, discipline, faith, and internal organization" and, if examined, would "pose a substantial danger of a chilling effort [sic] upon religious decision-making."

Not so, ruled the judge. He wrote that the current case was not one in which the Court was being asked to interpret canon law or intervene in internal church affairs. Nor, he said, would production of the documents call for the Court to second-guess any employer-related functions of the clerical hierarchy.

The judge wrote that the defendants (the insurers) sought the protected documents in order to understand better what Diocesan leaders knew, and when they knew it, about sexual abuse within their ranks, and that the mere examination of the documents did not mean that the Court was infringing on decision-making, but only that the Court was allowing more to be known about those decisions.

The judge next considered the Diocesan claim that the free exercise of religion mandated some protection of church documents due to concerns over confidentiality. He did this by citing and assessing a balancing test.

The first part of the test is that the party claiming the privilege must show 1. a sincere religious belief which 2. is burdened by a state requirement. The judge found that the Diocese had proven neither. He explained further that even if the Court accepted as obvious that the SST rules required confidentiality on the part of the Diocese (because of fidelity to the Vatican), that that requirement of confidentiality would not transfer to a civil court, for the reason that civil courts are not bound by the privacy mandates of ecclesiastical authorities.

He also pointed out that if the withheld documents did in fact contain information which supported the defendants contention that the insurance losses were intended or expected, that such information would have the beneficial effect of shielding the victims from the ordeal of testifying at trial.

4. Psychotherapist-Patient Privilege

The Diocese had argued that documents relating to the treatment of an accused priest could be protected from discovery if they were put in a special confidential file. The judge disagreed.

The purpose of the statute is to protect the privacy of people who seek psycho-therapeutic help. But, in his ruling, the judge drew a distinction between the rights of the patient (the priest) and the rights of a third party (the Diocese). The judge wrote that the privilege does not apply to communications made for the purposes of being conveyed to a third party. Evaluations and progress reports from St. Luke's Institute would likely be covered in this category of communications.

He noted that the Diocese lacked standing to assert this right (since it was not the patient) and further, that no accused priest, or other patients, had come forward to assert their own privacy rights "…despite ample opportunity to do so…" Additionally, according to the listings for section 4, he noted that there were documents in this section that were clearly not related to psychotherapy.

5. Relevancy and Materiality

By this time in the decision, the judge had already ruled on many documents that fell under other categories of privilege, such as the laicization documents which were listed under the Priest-Penitent and Ecclesiastical Privilege categories of the Diocesan defense.

In this section the judge reiterates that such documents will not be shielded from discovery simply because the Diocese contends they are irrelevant or immaterial. Instead, he reminds the parties that these documents may shed light on what Diocesan leaders knew and when they knew it, and rules that that possibility raises the documents to the necessary level of relevancy.

The same is true, he writes, for documents relating to the "Other Claims", those which are not directly tied to Exhibit A claims (current claims) and Exhibit B claims (those from the 2004 settlement). He therefore allows the discovery of documents about any aspect of the insurance policies of the defendants, including applications for, purchase of, and claims asserted under the policies.

The documents relating to insurance policies of companies other than the defendants were also sought by the defendants. Here the judge rules slightly differently. He still allows the defendants to discover documents about applications and purchases of policies, but limits the claim-related documents to those involving sexual abuse.

In his order at the end of this paper the judge also allows the insurers to see all documents listed in Exhibit A of the insurer's memorandum (a list of documents withheld without specification of objection by the Diocese).

Finally, the judge orders that the Diocese shall, within 7 days, provide a log and summary of "…any documents it has destroyed in the past thirty years and which relate to or arise out of allegations of sexual abuse by persons under the Diocese's supervision or control."

_____

Jan. 3, 2007 - March 20, 2007

In this period the legal fireworks reach their highest arc.

After the Jan. 3 ruling, an appeal from both parties, two emergency motions from the Diocese (with responses to same) and other motions followed in quick succession. This section includes the following papers:

Paper 78 (Diocesan 1st Emergency Motion: To Enlarge Time to Fully Respond to the Jan. 3 Court Order), Jan. 18, 2007. [This motion was allowed.]

Paper 79 (Diocesan Status Report On Discovery Produced Under Court Order), Jan. 18 [The Diocese reports that it has turned over some papers to the insurers and Court and not others, and explains why.]

Paper 82 (Diocesan 2nd Emergency Motion: To Permit Discovery Under a Protective Order), Jan. 24 [The Diocese seeks to create a class of "protected responses" that, if approved by the judge, will treat the papers handed over during discovery much like impounded documents which must be given back to the Diocese or destroyed within 30 days, and the information within them not disclosed to anyone else. The text of the proposed Protective Order is part of P.82, under "Exhibit 1".]

Paper 83 (Insurers' Opposition To Diocesan Motion To Permit Discovery), Jan. 29 [The Insurers object to the proposed Protective Order.]

Paper 84 (Decision and Order After In Camera Review), Feb. 5 [Pursuant to his Jan. 3 order, Judge Agostini decides which documents must be produced under the "priest-penitent" privilege after viewing them privately. The Diocese sought to protect 107 documents.]

Paper 86 (Decision and Order on Motion of the Diocese for Protective Order), Feb. 13 [The judge declines to enforce the Protective Order sought by the Diocese.]

Paper 89 (Appeals Court Order Affirming Orders of Jan. 3, and Feb. 13), March 20 [Judge Fernande Duffly from the Court of Appeals upholds Judge Agostini's Jan. 3 (Paper 77) and Feb. 13 (Paper 86) rulings.

Summary

P.79, the Diocesan status report on the judge's court order to produce documents, shows some compliance, but it also shows defiance, because it announces that the Diocese refuses to produce certain documents. This refusal anticipates P.82 (a proposed Protective Order) under which Diocesan documents would remain secret despite being subject to discovery. The Diocese ascribes the refusal to produce the "laicization" documents to the fact that the Diocese has just filed a motion to extend time (P.78, also filed on Jan. 18).

P.79 also contains the Dioceses's refusal to produce other documents. Documents about claims of ecclesiastical privilege and religious autonomy are being withheld "…pending the court's decision on the motion [presumably, the motion to enlarge time] and plaintiff's decision to seek appellate relief and/or a protective, non-waiver order, all as set forth in Plaintiff's Emergency Motion to Enlarge Time which is being filed and served herewith." This last reference to "appellate relief" refers to the Appeals court, a course which the Diocese did in fact pursue, along with the defendants, who filed a cross-appeal; both appeals were decided on March 20.

The Diocese also announces in P.79 that they refuse to answer interrogatories #7, 8 and 11, pending their appeal, request for protective order, and request for more time.

The last point in P. 79 is that "…with respect to the Court's Order that plaintiff produce a log of destroyed documents relating to allegations of dispute [sic] within the last 30 years, plaintiff has made further inquiry and responds that no such documents were destroyed."

Summing up, P.79, while ostensibly reporting on the Diocese's compliance with the court's order to produce documents, is equally clear on which documents it will not produce, a point not lost on the insurers, who take it up in subsequent motions.

The next motion by the Diocese (P.82) seeks to create a class of "protected responses" that will replace the in camera reviews mandated by the judge on Jan. 3 and that will also replace the Dioceses's own appeal of the Jan. 3 decision. In this paper the Diocese argues that the Jan. 3 ruling is at odds with an impounded finding and order from 2004 of another Superior Court judge pertaining to the same documents (presumably, laicization, ecclesiastical privilege and religious autonomy documents). They also point out that the appeal of the Jan. 3 ruling, coupled with further in camera reviews of disputed documents, will only slow the case down, which all parties are opposed to.

The Diocese asserts that the "…documents in question contain highly personal and sensitive information, including sexual abuse descriptions by individuals who requested that all such information be kept strictly confidential and have not been made public. Some of the documents contain counseling or psychiatric information, some involve claims against deceased individuals who have never had the opportunity to respond, and some contain confidential statements by individual members of the plaintiff Church on these matters."

The Diocesan solution to these perceived problems is the Protective Order (part of P.82), which they say will "..allow immediate access and review by defendants of all the documents in question without the need for in camera review and any appellate review of the Jan. 3rd order." Also, the proposed protective order would "...in no way impede the legitimate use of the documents for discovery purposes ...while preserving the defendants right to seek relief from the protective order's provision for any particular document."

It must have been shortly after the filing of P.82 that Attorney McDonough of the Diocesan legal team sent a letter to Judge Duffly (the Appeals Court judge) alerting her that a motion to institute the proposed Protective Order was pending, and that if it were approved by Judge Agostini, the appeal of the Jan. 3 ruling would be moot. Because of this letter, she stayed her consideration of the appeal until March 15.

Next:

The insurers' and court's reaction to the proposed Protective Order.

_____

Jan. 3, 2007 - March 20, 2007 (contd.)

We left off last time with the Diocese's proposed Protective Order, part of P. 82, filed on Jan. 24, 2007. Almost immediately, the insurers filed their opposition, P.83.

In it, the insurers deny that they would ever disclose information obtained during discovery about the identity of victims of sexual abuse, which disclosure they interpret as the focus of the proposed Order. They object to the proposed Order, predicting that it would result in the imposition of a procedural mechanism which is "…inappropriate, unwieldy and entirely unnecessary."

Their main reason for urging the court to deny the Order is that the Diocese is already under an existing court order to produce documents without a protective order, and that nothing had changed since the Jan. 3 ruling to relieve the Diocese of that obligation.

While the insurers had not opposed the 1st emergency motion of the Diocese to enlarge time, they made it clear in P.83 that they did oppose the parts of the 1st emergency motion that sought to place the disputed laicization documents into a special "protected" class. They also noted that despite being asked to do so in the 1st emergency order, the judge had not made any exception to his Jan. 3 ruling mandating discovery of the disputed documents.

In their opposition to the 2nd emergency motion the insurers again state their opposition to the proposed Diocesan protective order, noting that "…the Diocese's proposed order contains inappropriate references to "privileged" materials, notwithstanding that the Court has already ruled that those materials are not privileged" (emphasis in original).

Paper 84

In the next paper, P.84, we leave for a moment the controversy over the Protective Order and return to the implementation of the Jan. 3 ruling. Here the judge announces his findings after reviewing 107 documents that the Diocese had sought to protect under the "priest-penitent" privilege.

He first divides them into two classes, (1) Misconduct Commission Documents and (2) Correspondence Between Bishops and Priests Accused of Misconduct. The Misconduct Commission Documents recorded its administrative work, which consisted of lay people dealing with allegations of sexual abuse brought against Diocesan personnel. Since these documents did not give or solicit spiritual advice, the judge found that they were not privileged.

There was, however, one exception, which was a 13 page letter complaint against Father A. James Thompson containing the phrase "…please accept this letter as my personal confession…" This letter was allowed to be kept secret.

In the other class of documents, the judge found that, for the most part, the letters to the bishops were administrative in nature, consisting of information about progress in therapy, support systems (friends), changes in address, queries about future employment, or financial matters. The bishop's responses mostly updated the priests about events in the diocese. The judge found that none of the priest's letters amounted to a confession.

However, there were eight letters of Richard Lavigne to Bishops Marshall and Dupre which contained repeated spiritual references, seeking their advice and reflection. These the judge ordered to be kept secret. But he found that secrecy was not necessary for most of the bishop's responses to Lavigne. This is because they were largely administrative in nature.

Paper 86

In P. 86, the judge rules on the proposed Protective Order. He notes that the Diocese does not seek a protective order to limit the scope of discovery, but only "…to protect this discovery from being revealed to persons who, it believes, have no reason to know this information…" He quotes the text of Mass. R. Civ. P. 26(c), the law under which the Diocese is presumably seeking the protection: the law states that a court may make "…any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense…"

He then explains why the Diocese is not entitled to such an order, stating that while the insurers and claimants have agreed to protective orders that protect the names of victims, they oppose global orders that seek protection of all documents. According to the claimants and insurers, not only would such protective orders create practical problems requiring court intervention (motions and counter-motions, closing the courtroom, and so on), they would also result in the withholding of information from the public. The claimants also assert that the Diocese's reasons for impoundment boil down to a desire to protect themselves from embarrassment.

The judge notes that the opposing parties are free to enter any confidentiality agreement that limits disclosure of documents. However, this limit or control needs to be tempered by the protection of the public interest, which responsibility belongs to the judge.

He states that "Given the strong presumption of openness, the litigants will face an uphill battle if they seek to impound documents that are relevant to this litigation." As an example, he notes that he has already examined many documents that the Diocese had wanted to protect, and found very few that deserved protection.

Summing up, he states that "…if the motion is allowed, it would essentially allow the Diocese to prevent court personnel and the parties, including claimants, from disclosing any material to third parties and also prevent the public from having any access to documents submitted in court. This is an impoundment order dressed as a protective order. More importantly, it is accomplished without an affidavit, hearing and showing of 'good cause'…"

These last three items are requirements of the Uniform Rules on Impoundment.

Next:

Judge Duffly's Appeals Court Decision of March 20 on the Jan. 3 Decision of Judge Agostini

Chapter Five: Progress Of The Suit, Part 1

2009-04-15T11:15:00.000-07:00

June 14, 2005 - Oct. 13, 2005

This civil suit started on June 14, 2005, when the Diocese (as plaintiff) sued seven insurance companies (the defendants) in an attempt to recover 7.7 million dollars expended in a 2004 settlement of 46 claims relating to demands for damages as a result of sexual abuse by clergy or others allegedly under the supervision or control of the Diocese. The defendant companies had provided insurance in the period 1968 to 1986, as follows:

Aetna (now Travelers) (Jan. 1, 1968 to Jan. 1, 1971)
Home (now represented by the Mass. Insolvency Insurance Fund, or MIIF) (Jan. 1, 1971 to Oct. 17, 1979)
North Star (March 29, 1976 to Oct. 17, 1979)
"Gallagher Bassett plan" (self-insurance; Lloyd's; Centennial; Interstate; Colonial Penn) (Oct. 17, 1979 to Oct. 17, 1986)

Prior to 1968, to the best of its knowledge, the Diocese had no coverage. After 1986, general liability policies treated sexual abuse or molestation as an exclusion.

In fact, two of the original defendants were allowed to modify their standing in the suit because their policies contained exclusions for sexual abuse or molestation. Colonial Penn Insurance Company left the suit on May 17, 2006, and Interstate Fire and Casualty left the suit on August 3, 2006. It is my understanding that these two companies were judged to have no duty to defend or repay the plaintiff (the Diocese).

Oddly enough, during the course of the suit these two were replaced by two entirely different companies who became a party to the suit when long-forgotten policies turned up during the long and fitful course of discovery. Thus the number of defendant companies remained at seven. The two who joined the suit about 6 months before settlement are American Home Assurance Co., and National Union Fire Insurance Co.

The first few months of the suit were taken up with serving papers and getting answers from the defendants, who were largely out-of-state. Compliance of the long-arm statute was necessary to establish jurisdiction. Apparently the long-arm statute allows the plaintiff (the Diocese) to get local court jurisdiction (Hampden Superior Court) over the out-of-state defendants.

Next, attorneys for the companies had to be recognized by the court. One of the attorneys for Lloyds was John Egan of Rowe's Wharf, Boston, not be confused with John J. Egan, lead attorney for the Diocese.

In their answer to the service, Travelers made a counterclaim, which was impounded. Another counterclaim came from Interstate. Soon thereafter, a list of the claimants who assented to a stipulated order of the court from Nov. 4 was impounded. In fact, throughout the suit, it was apparent that any documents containing the names of alleged victims were impounded. For example, papers 32 through 37 are not in the clerks office (all had to do with the Nov. 4 order just mentioned).

Oct. 13, 2005 - May 26, 2006

On Oct. 13, 5 months into the suit, the judge issued a scheduling order about interrogatories and other discovery matters. Shortly thereafter, on Oct. 18, the insurers sent their first questions and first document request to the Diocese.

However, we are already into complications, because back on Oct. 6, a week before the judge issued the scheduling order, the Diocese had announced at a status conference that it was reluctant to produce any documents or answer any questions until the Court resolved reservations that the Diocese had about Nixon Peabody.

This law firm was representing the MIIF (who were stepping in for the bankrupt Home Insurance Co.). Mr. Egan, representing the Diocese, suspected that Nixon Peabody had a conflict of interest because in addition to representing insurance carriers such as MIIF, it had also represented several dioceses around the country.

His concerns boiled down to two issues, (1) he felt that, according to Mass. law, the other dioceses had to give their consent in order for Nixon Peabody to be able to represent the MIIF (which consent he had no proof of), and (2) he suspected that confidential information about diocesan legal strategies might be leaked from diocesan lawyers to those defending the insurance company, thus undermining his legal strategy, and the legal strategies of dioceses in general.

As he put it, the fact that the Nixon Peabody lawyers represented both insurers and dioceses would hold the interests of the Springfield Diocese "hostage". He also said this (in P.50): "It is thus clear that the positions being advocated by Nixon Peabody attorneys in the present case on behalf of MIIF are directly adverse to the interest of other dioceses since a decision unfavorable to the Diocese of Springfield would negatively effect the legal position of those other dioceses in their efforts to obtain insurance coverage for the abuse claims asserted against them."

Nevertheless, the first set of questions and document requests went out from insurers to Diocese on schedule on Oct. 18. As to the Nixon Peabody issue, the court ordered the Diocese on Dec. 7 to undertake discovery from Nixon Peabody, presumably to clarify whether there was a conflict of interest that would cause the Diocese to make a motion to dismiss Nixon Peabody.

Nixon Peabody provided the discovery by Feb. 13, 2006. This was followed three months later by a motion (P.50) from the Diocese asking the court to disqualify Nixon Peabody, which was filed on May 26, 2006. The judge's decision in the matter arrived two months later (P.62).

Mr. Egan's difficulty with Nixon Peabody predated the suit. He had exchanged letters with Mr. Tanski of Nixon Peabody in January, 2005, about the potential conflict of interest. The following month Egan was informed by a partner of Tanski that an "ethical screen" was the method used at the firm to handle such objections. Also in Feb., Egan informed the United States Conference of Catholic Bishops (USCCB), the Manchester Diocese and the Hartford Diocese of his concerns about Nixon Peabody.

The Manchester situation was a particular concern because that Diocese had claims pending against the New Hampshire insolvency fund, and Egan expected that the Nixon Peabody attorneys representing the Manchester Diocese were likely to be called as witnesses on behalf of the Diocese, and testify against the fund.

As just mentioned, even though the potential conflict of interest was raised by the Diocese on Oct. 6, and then followed by discovery from Nixon Peabody which was provided to the Diocese by Feb. 13, it took three more months for the Diocese to issue a motion asking the judge to dismiss Nixon Peabody, and another two months for the judge to issue a decision. Thus, the whole affair lasted a little over 9 months.

It is not clear why it took so long. But, the length of time needed to resolve the issue, coupled with the fact that the Diocese did not produce any documents to the insurers in the meantime, suggested to the insurers that the motion amounted to a strategic move on the part of the Diocese to delay the progress of the suit (see pg. 2, P.67).

Let us look closer at the issues of P.50 (Motion to Strike Nixon Peabody) and the resolution, P.62 (Memorandum of Decision).

P.50

To paraphrase, Attorney Egan felt that Nixon Peabody's representation of the MIIF was problematic on two grounds: confidentiality and loyalty.

Confidentiality, because one could not be sure that legal strategies that were developed and refined by dioceses nationwide by NADA attorneys (National Association of Diocesan Attorneys) would not be leaked within the law firm of Nixon Peabody to those attorneys representing insurance companies (MIIF, in this case).

Loyalty comes into question, because, when lawyers from the same firm simultaneously represent both an insurer and a diocese, they must, according to Egan, obtain the consent of the other party before proceeding. Since Egan had no proof that the Nixon Peabody lawyers had obtained consent from the dioceses in question, (nor was he allowed to undertake discovery on this aspect by the judge) he felt that the duty of loyalty came into question.

It goes without saying that Egan's argument was directed at all lawyers of Nixon Peabody, i.e., he was not claiming that Mr. Transki himself, lead attorney for MIIF, had represented a diocese, but only that another lawyer, of the 600 or so employed by Nixon Peabody, had.

Another aspect of Egan's motion had to do with the so-called affirmative defenses put up by the insurers to answer the original claim for declaratory judgment. Egan listed seven of consequence, and stated that all seven were actually not the type of defenses based on language found in insurance policies.

Instead, they referred directly, he said, to the type of issues that one would expect to find in cases where dioceses were being sued for liability for sexual abuse cases. This proved, wrote Egan, that the positions being advocated by Nixon Peabody on behalf of MIIF were directly adverse to other dioceses, since an adverse decision in Springfield could have ramifications elsewhere, thus undermining the legal strategy of all dioceses.

The seven affirmative defenses mentioned by Egan were: 1. The Diocese failed to mitigate, minimize or avoid damages; 2. Diocese's claims are barred by the "known loss" doctrine; 3. Diocese's claims are barred to the extent that the Diocese seeks defense with respect to third party claims which do not constitute "suits" for which there is a duty to defend; 4. The Diocese's claims are barred to the extent that bodily injury or personal injuries were not caused by an "occurrence" within the meaning of the underlying policy; 5. The Diocese's claims are barred to the extent that the costs and expenses do not constitute "damages" within the meaning of the underlying policy; 6. The Diocese's claims are barred to the extent that the Diocese does not seek coverage for damages that it was "legally obligated to pay" within the meaning of the underlying policy; and 7. That the Diocese's claims are barred to the extent the Diocese seeks coverage for occurrences that were not fortuitous [accidental].

Egan listed other positions likely to be advanced in the lawsuit that would also be of concern to dioceses nationwide. Namely, that the insurers would question the intrinsic values of the underlying claims – and also question whether the amounts paid by the Diocese were reasonable. They would debate whether clergy were covered as executive officers or employees under general liability policies, and question even the definition of sexual abuse (whether it qualified as "bodily injury" or not). Egan called these positions and queries directly adverse to the interests of other diocesan clients around the country.

In arguing for disqualifying Nixon Peabody, and for the principle that what effects one unit affects others, Egan stressed the unity of dioceses around the country. For example, he said that all bishops belong to the USCCB. He described the Springfield Diocese as a geographic unit of the worldwide Roman Catholic Church, and he called its corporation sole structure the legal entity through which the religious entity of the Diocese conducts its operations.

When arguing that Nixon Peabody was bound by conflict of interest rules pertaining to simultaneous representation of adverse interests, he compared the relationship of dioceses to that of companies within a trade organization, and also to subsidiaries within a corporation.
He urged the court to consider one diocese as an "alter ego" of another. Under this legal theory, if there is an identity of ownership, then as a "…matter of reality and practicality…" one could ignore that the companies are distinct in legal terms, and, instead, consider one as the alter ego of the other.

next:

- P.62 (Memorandum of Decision and Order) in which the judge rules on P.50.
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May 26, 2006 - July 21, 2006

We have just recapped the arguments contained in P.50, a motion by the Diocese to have the representation of the MIIF (Nixon Peabody) dismissed. MIIF is an insolvency fund covering for Home Insurance, which had gone bust.

The judge issued P.62, a decision and order, which was filed on July 19, to solve the issues raised by the Diocese. But first, a couple of other things happened.

On June 6, the Springfield Republican reported that Rev. Richard Meehan had been laicized by the Vatican. This news is significant not only because Meehan's laicization documents were almost certainly among those that became part of a huge tug-of-war between insurers and Diocese, as we shall see, but also, because the article mentions that at that time there were "…seven other priests…" that faced the same possible action. This indicates that there was a considerable amount of material in chancery archives that the insurers could be expected to take an interest in, and indicates as well that the Diocese had a considerable amount of material to protect.

The other event was a June 16 editorial in the Berkshire Eagle about the lawsuit. While Diocesan spokesman have recently implied that the Eagle is anti-Catholic, or, at least, anti-religious, they might feel less sure if they went back and read this editorial, titled "Insurers Must Pay Up". In it the insurers are said to be "clearly stalling" and they are urged to "do right" by the Diocese. The editors also find the willingness of Bishop McDonnell to settle "refreshing", and they compare the situation here favorably to the stonewalling that had occurred in Boston on many similar issues.

P.62

In short, the judge declined to dismiss Nixon Peabody. In his explanation, he stated that attorney disqualification was a "drastic" measure, and, while he granted some of the points made by Diocesan attorneys, he found that the objections, taken together, did not rise to a level requiring dismissal.

Among other points, the judge found that Diocesan lawyers had not established that the dioceses are owned by the same legal entity or organization. He emphasized, instead, that each diocese was a separate corporation. This undercut the arguments for the "alter ego" ideas, trade association, and subsidiary/corporation analogies put forth by Diocesan lawyers.

With regard to the corporation analogy, the judge said that "…nothing in the record supports an inference that the dioceses stand in an organizational relationship to each other such that one diocese's liabilities directly affect those of the other dioceses, in contrast to the relationship between parent and subsidiary companies…" (pg. 6, P.62).

The conflict of interest argument also failed because the judge was not convinced that the plaintiff (the Diocese) ever had a working relationship with Nixon Peabody, even though other dioceses had, and even continue to have, a relationship. Thus, the judge refused to see the linkages between dioceses that the Diocesan lawyers were trying to prove.

Similarly, the judge found that the supposed linkages between the NDAA list-serve and the MRPC (Massachusetts Rules of Professional Conduct) did not exist. While the judge acknowledged that the National Diocesan Attorneys Association were free to make representations about the confidentiality of their list-serve or conference materials, he also pointed out that nothing in the MRPC expressly governs those communications, beyond what is already required of attorneys. So, if the attorneys for the Diocese felt forced to "hesitate" before using the list-serve, as they claimed in the motion, that problem could not be corrected by appealing to the enforcement of the MRPC.

Also, the judge noted that there was no evidence presented by the Diocese to prove that the two attorneys in question (out of the 600 or so attorneys at Nixon Peabody) had ever had access to confidential information relating to other dioceses' litigation involving sexual abuse claims.

The judge said that the evidence produced by discovery showed that Nixon Peabody had defended other dioceses against charges of sexual misconduct. But, despite this fact, he pointed out, the Diocese had not established that Nixon Peabody's work for the dioceses in question involved insurance coverage issues (though, he noted, they could have asked this question during discovery).

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July 21, 2006 - Oct. 3, 2006

This section deals mainly with the battle over "document production", i.e., the requests of the insurers' lawyers for documents in the possession of the Diocese. We cover the following:

Paper 61 - the Diocesan motion to extend time to respond
Paper 63 - scheduling order for discovery
Paper 67 - the Insurers' emergency motion to compel document production
Paper 69 - the Insurers' statement of anticipated discovery issues
Paper 72 - the Insurers' motion to compel document production
Paper 73 - the Diocesan opposition to insurers' motion to compel

Despite the impressive number of Papers above, the issues about document production were not resolved. That would only happen with Paper 77 on Jan. 3, 2007, when the judge issued a ruling on which documents the Diocese would have to produce, and which ones it could keep in a "privilege" file. That ruling was immediately appealed by both parties, but was upheld on March 20 by Judge Duffly.

But, before considering the decisions of Jan. 3 and March 20, the series of motions listed above will be summarized.

Paper 61

It will be remembered that on Oct. 18, 2005, the insurers sent their first document request and interrogatories to the Diocese. In Paper 61, on July 17, 2006, the Diocese acknowledges that no papers or answers have been sent to the insurers as yet, and explain that they need more time to comply.

Reasons cited are: the large number of claims (over 100); the additional claims for which the insurers seek documentation (probably referring to the "Other Claims", i.e., claims other than the pending claims and those involving the 7.7 million that the Diocese paid out in 2004); the length of time covered by the claims (over 50 years); and the sheer amount of material (the Diocese cites 17,000 pages reviewed and copied, with 10,000 more to go).

The judge had set a deadline of June 30 for the response of the Diocese, and in P.61 the Diocese seeks to push this deadline back to July 21. It is notable that P.61 was filed on July 17. This suggests that P.61 may have been an 11th hour effort to avoid sanctions for not meeting the June 30 deadline, which had already passed.

Paper 63

This scheduling order for discovery is notable because by ordering it the judge solves the problem of what to do about depositions of the victims. He decides that the first phase will include all discovery and document production involving clergy, lay witnesses, insurance employees, etc., in other words, all others affected by discovery other than the victims.

The second phase of discovery (which may require victim depositions), by this order, are scheduled to be conducted only after the first phase is complete and the "dust has settled", as the judge put it.

This order also contains timelines for the commencement and completion of depositions. This schedule appears non-controversial but in the context of the document production difficulties cited below, it takes on critical importance.

Paper 67

This paper offers the clearest narrative of the history of document production by the Diocese. It explains the rationale of the insurers in bringing motions to compel. The schedule of depositions ordered by the judge back in P.63 is looming, and without the papers from the Diocese that the insurers have requested, their depositions will be compromised because they will lack the information needed to conduct them: "The difficulty posed by the Diocese's intransigence is significant and the likelihood of prejudice to the Insurers is immediate."

Paper 67 is an emergency motion and is relatively short compared to the other documents in this series.

Paper 69

In Paper 69 the insurers say more about the 7,700 or so pages that the Diocese has placed in a privilege file. This long document (33 pages) presents very full arguments about why the insurers object to the General Objections and other objections laid down by the Diocese to limit the production of documents.

Paper 72 (not online)

Full it may be, but Paper 69 is supplemented by an equally large paper (Paper 72) consisting of yet more arguments against the Diocesan position, many exhibits, and the formal Motion to Compel.

It is the Motion to Compel (P.72) that the judge responds to in his decision (P.77), not Paper 69. Similarly, when the Diocese responds in P.73 ("opposition to insurers' motion to compel"), they are responding to P.72, not P.69.

Paper 73

Most of P.73 is about the privilege file. In this paper, the Diocese asserts that they have already answered 47 interrogatories (not including sub-parts), and have provided over 60,000 pages of material in response to the request for 76 categories of documents requested by the insurers.

They dispute the claim by insurers that material relating to the 17 claims against Richard Lavigne settled in 1994 has been withheld. It is difficult to see how the claims of the insurers and the Diocese can be so far apart. Probably, the answer lies in the definition of what is considered "relevant", with the insurers having a wider appreciation than the Diocese.

SUMMARY OF THE SECTION

Now that we have a clearer understanding of how these motions interrelate, we turn again to the progress of the suit.

A close reading of P.67 will show that because of the schedule set by the judge, the insurers found themselves on the eve of conducting depositions without the necessary information with which to proceed. This assertion of theirs is without reference to the documents in the privilege log of the Diocese, numbering some 7,700 or so. Even ignoring these documents which were reserved by the Diocese for privacy and other reasons, by the time that P.67 was written, on Aug. 3, the Diocese had not produced a single page of the other, less controversial documents.

P.67, which asked for immediate production and also compensation for court costs associated with bringing the motion, was allowed by the judge on Aug. 9. He also set deadlines for the motion to compel, and for the opposition arguments sure to be filed by the Diocese, and noted that the discovery timetable would be amended to reflect the delay, the responsibility for which he assigned to the Diocese.

We recall that back in P.61 the Diocese had asked for an extension of time, but in the context of what they really needed, the request for a few days more would seem unlikely to have made a difference. They had reviewed 17,000 pages, and had 10,000 more to go, according to P.61. It is unclear why a request for a more substantial extension of time was not made.

Two months later, on Oct. 3, the Diocese was asserting that it had in fact produced 60,000 documents. Apparently their stated position is that this production, so long in coming, had occurred in the period Aug. 3 - Oct. 3.

At any rate, in P.69 and P.72 the insurers make clear their objections to the size of the privilege file, which emerges as the real battleground, despite the fact that the emergency motion to compel was ostensibly about the production of any document, and not the privilege file per se.

In P.73 the Diocese responds in a similar manner, limiting their discussion to what they will not produce, rather than to what they will.

Thus the stage is set for the judge's decision on the privilege file of around 7,700 pages, which he issues on January 3, 2007.

Next:

Oct. 3, 2006 - Jan. 3, 2007

Chapter Four: Summary Of The Issues

2009-04-15T11:14:00.000-07:00

Many issues were contested in the suit. Most were procedural, and decided when the judge ruled on motions. Church/state conflicts abounded, as one might expect. And yet some generic questions were raised, for example, how far a cooperation clause in an insurance policy should extend.

Although a trial never got underway, many of the issues that would have been aired at trial received a sort of dress rehearsal. By writing motions and counter-motions, several of them "emergency" motions, the litigants sought to gather their best evidence for the fight to come.

One might ask "since there was no trial resulting in a jury verdict and giving a sense of finality to the arguments, why study the pretrial conferences and all that overstuffed paperwork?"

I have two answers for that. One, in the land of diocesan lawyering, settlements are very much the rule. For example, in the last 85 or so civil cases involving the Springfield Diocese, in which they were the defendant perhaps 75 times, the record hardly mentions a trial. They almost never happen. In this context, settlements, for the very reason of their voluminous paperwork, are an opportunity for the laity to find out what is going on in their church and how it is being run, an opportunity rarely found elsewhere.

The other answer is that although there were no jury verdicts, there were many judicial verdicts, and they throw light on what the governance of the Roman Catholic Church looks like from the perspective of civil law. For example, both Judge Agostini and Judge Duffly had their say about the limits of the right of independence that churches claim for the "church autonomy" privilege based on the separation of church and state. Although a particular religious belief is usually not an issue in church/state conflicts, decision-making by the church may be, especially when it affects third parties in a harmful way.

In the suit, this decision-making was examined by the court. The question is whether this examination constitutes "interference" (as argued by the Diocese) or merely "fact-finding" (according to the insurers).

As noted earlier, the production of documents was contentious, and even seemed at times to be strategic (especially, the non-production of documents). Related controversies included which type of documents should be produced and under what conditions they should be seen. For example, "in camera" review of some documents became necessary. In this maneuver, the judge reviews potentially discoverable documents in his chambers and decides page by page which ones have to be produced.

In the category of contested documents the thousands of pages that the Diocese sought to protect were at center stage, but the insurers by no means had smooth sailing. They, too, objected strenuously to the discovery requests of the Diocese (in P.70, not online).

But, since so much time was spent on the insurers trying to extract documents, and since the arguments for and against the privileges claimed by the Diocese were so thorough, it seems best to start there.

In the first place, the Diocese conditioned the production of any requested documents on their General Objections, found in P.61. These were the first hurdles that any document had to pass in order to be handed over to the insurers, unless they were disqualified later by other objections. The original spelling is retained:

________

A. Insofar as any of these requests seek the production of confidential attorney/client communications, the Plaintiff objects and refuses to produce the requested documents.

B. Insofar as any of these requests seek the production of material which constitutes a confession, a communication seeking religious or spiritual advice or comfort, or advice given thereon by a member of the clergy which has not been waived by the person making the confession nor seeking the religious or spiritual advice, or comfort. The Plaintiff refuses to produce such materials.

C. Insofar as any of these requests seek the production of material which was prepared or obtained in anticipation of litigation or for trial by the Diocese or the Diocese's attorneys or representatives, the Plaintiff objects to that requests and refuses to produce those materials.

D. Insofar as any of these requests seek the production of information or material protected by the First Amendment or other ecclesiastical privilege or doctrine of religious autonomy, the Plaintiff objects to the request and, accept to the extent of voluntarily produced herein, the Plaintiff refuses to produce the requested material, which includes without limiting the foregoing the so-called "Laicization" and "Sacramentorum Sanctitatis Tutela (Safeguarding the Sanctity of the Sacraments)" documents.

E Insofar as any of these requests seek the production of information which is privileged pursuant to M.G.L. c. 112, §§ 135, 135A and 135B, or Chapter 233, §§ 20A and 20B and Chapter 214, § 1B, or other laws protecting physical or mental health records, the Plaintiff refuses to produce the requested material.

F. Insofar as the instructions set forth in the plaintiff's requests seek to impose an obligation on the defendant different or greater than that imposed by the applicable Massachusetts Rules of Civil Procedure, the defendant objects to the instruction and makes this response pursuant to the applicable Massachusetts Rules.

_______

Some of these seem reasonable, and some, like F., even boilerplate. But, these were not the only objections that the Diocese registered to the requests of the insurers. They also objected to about two dozen requests on the grounds that the materials sought were immaterial or irrelevant to the case.

Taken together, these objections were sharply criticized by the insurers (in P.69), who asserted that they had "..no merit in law or in fact…".

The Diocese countered that the insurers were going too far with their discovery requests, and that the insurers requests exceeded the standard for discovery, which is that a party should ask for that which appears "reasonably calculated to lead to the discovery of admissible evidence".

The Diocese also branded as "irrational" and "speculative" the implied argument by the insurers that they were entitled to discovery in the "Other Claims" category (claims not settled in 2004 or pending). The insurers wrote that examining these documents might lead to evidence of a Diocesan pattern or practice of ignoring actual knowledge that its priests were sexually abusing minors, an argument that the Diocese dismissed as "outrageous".

_____

One of the lawyers, in a moment of despair, complained about the pace of the three-year suit as it plodded "…through the court accompanied by phalanxes of attorneys and tens of pounds of papers…". And how.

Another factor is that the Danny Croteau murder investigation files tied the suit in knots (as if it needed more complications) because the DA and State Police objected strenuously to their release. I've avoided this part of the suit, not because it's unimportant, but only because the scope of this project had to be limited to a "doable" amount.

I base this summary of issues largely on the volume of material available, in other words, issues that were argued the most tended to be better defined. Here are my choices for some of the more important issues:

- should all documents concerning Richard Lavigne be discoverable?

- how do "discoverable" documents differ from "admissible" documents?

- does the Diocese stand in relation to the Roman Catholic Church like a sub-part (like a corporation or member of a trade group), or is it a unique legal entity?

- should the claimants (the alleged victims, numbering over 100) be deposed? If not, how can their claims be validated?

- had the Diocese destroyed any documents relating to sexual abuse?

- should the written communications of the accused priests (who numbered around 60) be protected under any of the privileges asserted by the Diocese?

- what were the various "privilege" categories of the 7,686 documents that the Diocese sought to protect?
________

I base these choices on not only local significance, but also the possibility that arguments and decisions here may affect court cases elsewhere.

We need only pick up the daily newspaper to see fresh cases involving dioceses nationwide. It stands to reason that what is germane in a Catholic church lawsuit in Oregon today may be relevant in Ohio tomorrow. Insurers and the Diocese affirmed this outlook by citing recent cases involving religious disputes, often at great length.

The Talbot case (concerning criminal charges against a Jesuit priest), from 2004, was constantly coming up. The Jesuits and Rev. James Talbot, a former teacher at Boston College High School, sought to shield his personnel files from discovery by state prosecutors under a variety of "privilege" defenses, including church autonomy, privacy, and the like. There was a tug of war around these issues and eventually the appeal went to the Supreme Judicial Court of Massachusetts.

The more one reads about this case, the more it resembles the recent Springfield Diocese suit, at least as far as withheld documents goes. Talbots was only one of the Catholic church cases cited, others being the Boston abuse cases of Shanley and Geoghan, the Oregon bankruptcy trial, and suits pressed by the Boston Globe in their pursuit of church documents.

In all of these cases the role of the diocese as employer was crucial. But, even more interesting, the question of how dioceses share information among themselves and their lawyers became a flashpoint for a significant part of the Springfield suit. I am referring to Paper 50, where the Diocese asked to have opposing counsel dismissed because of a perceived conflict of interest.

They argued that since Nixon Peabody, the firm representing one of the insurers, also represented several dioceses, that the lawyers opposing the Diocese might come into confidential information from their colleagues that would undermine the Diocese's case. In other words (if you use words like a lawyer) the lawyers from Nixon Peabody might be guilty of practicing "simultaneous representation of adverse interests". Here I learned that one of the meanest things one lawyer can say to another, apparently, is "…you have no standing…", which was a retort from Mr. Tanski (representing Nixon Peabody) to Mr. Egan (representing the Diocese).

But, to back up his claim, Mr. Egan noted that both he and Mr. Tanski were members of the National Association of Diocesan Attorneys, and that the organization sponsored an e-mail list-serve to share information about combating common problems, one of which was insurance litigation in connection with sexual abuse. Egan stated in P.50 that "…given the magnitude of the claims underlying this action, Plaintiff will be hesitant to avail itself of the benefits provided by the NADA knowing that attorneys from the law firm representing one of its principal opponents in this case have access to that organization's information…"

There were other aspects in the Diocese's motion (P.50) of equal or greater interest, as we shall see.

Getting back to the list I cited, let's go through these one by one:

- should all documents concerning Richard Lavigne be discoverable?

The former Rev. Richard Lavigne, who was placed on administrative leave by the Diocese in 1992, shortly after his conviction on child molestation, was the subject of a large settlement with alleged victims announced in 1994, and was finally defrocked in 2003.

But Lavigne cast a long shadow. More alleged victims were part of the 2004 settlement, and yet more are some of the underlying claimants in the 2008 insurance settlement.

Lavigne is important because some of the publicity surrounding his earlier appearances in court implicated his superiors, suggesting a cover-up. Since the insurers were combing the books for as much evidence as possible, they wanted to know as much as possible about Lavigne – specifically, what his superiors in the Diocese knew about abuse allegations, when they knew it, and how they responded.

But, the Diocese asserted that information about "other claims" (other than the Exhibit A and Exhibit B claims) was irrelevant. In court documents, the pending claimants are Exhibit A Abuse Claims, and the 2004 claimants are known as the Exhibit B Abuse Claims. The Diocese tried to confine evidence, and discovery, to these 108 claims.

In P.69 the insurers complained that "…conspicuously absent from the Exhibit A and Exhibit B Abuse Claims, for example, are the 17 Abuse Claims that were asserted against Lavigne and which were settled for $1.4 million in 1994." [Diocesan documents released in 2004 state that the actual amount was $1.7 million, and that the settlement took place in 1993.]

The Diocese countered in P.73 that they did, indeed, provide information about this material and other material relating to claims involving Richard Lavigne. However, their focus was not on the 17 Abuse Claims from 1994, but rather on the connection between the A and B Claims, and the earlier ones:

"The material not produced by Plaintiff is material relating to claims by a person other than an Exhibit A and B claimant who alleges that he or she was abused by someone other than an alleged abuser named by an Exhibit A or B claimant. (For convenience, Plaintiff refers hereafter to these claims as "Other Claims.") If either the claimant or the alleged abuser was a person named in an Exhibit A or B claim, then Plaintiff produced the requested material, subject to Plaintiff's other objections based on privilege or lack of relevance. With regard to the Other Claims, Plaintiff refused to produce the material on the grounds that it was not relevant to the issues raised in this action."

It seems from this defense that materials relating to alleged victims or alleged abusers other than the A or B claims were retained by the Diocese. This material the insurers wanted to see. It also seems from this defense that the Diocese retained parts of the Lavigne materials, if the Diocese considered them falling under their general objections. The insurers wanted to see these materials as well.

This reluctance to part with the Lavigne material (not specified, but likely including his laicization documents) was one of the many issues that set the stage for the Decision and Order of Jan. 3, 2007 (P.77), in which the judge ruled on the matter of privileged documents.

- how do "discoverable" documents differ from "admissible" documents? P. 30, P.69

The insurers asserted that since the case was about coverage which started in 1968, extending to 1986, that they had a right to discover all documents and information concerning coverage for sex abuse during this time.

The Diocese countered that many of these documents might be inadmissible in court due to various privilege defenses, and refused to turn them over.

In P.69, the insurers stated their suspicions that the Diocese may have documents related to claims that were not a part of the Diocese's demand for insurance coverage, but that pre-dated the insurers coverage, and were never disclosed to the insurers by the Diocese at the time that the Diocese applied for coverage.

Further, that these documents (if they exist) may contain information about claims made by people who reported sexual abuse by a priest, but who never sought compensation. Also, that other documents (if they exist) might contain information related to abuse claims already settled by the Diocese, but for which the Diocese had not sought reimbursement. The insurers wrote that this information, though valuable, "…would not necessarily be among the Abuse Claims that are the subject of the present action…"

In support, the insurers quote from a ruling in the bankruptcy case of the Portland Archdiocese "…This is discovery. The test is [not] whether the information obtained would be admissible at trial[sic]: it is whether the information sought 'appears reasonably calculated to lead to the discovery of admissible evidence'. Fed.R.Civ.P. 26(b)(1)."

The Diocese countered that the insurers' arguments went too far. Although they granted that the scope of permissible discovery was broader than what is admissible at trial, they argued that it should be limited to what "appears reasonably calculated to lead to the discovery of admissible evidence", citing Mass. Rule of Civil Procedure 26 (b)(1).

They dismissed as pure speculation the implication that the Diocese had a "…pattern or practice of ignoring actual knowledge that its priests were sexually abusing minors…". The Diocese wrote (in P.73) that "…permitting discovery on the basis of such pure speculation in the absence of any supporting evidence would undermine any practical limit on discovery in every case".

They cited Mass. law to show that in ruling on discovery requests, a judge may take into account considerations of efficiency and economy, an obvious reference to the burden of producing yet more documents on top of the already thousands of documents in the hopper.

The Diocese also asserted that "what the Plaintiff knew about abuse committed by some other person to some other claimant" has no bearing on the real issue before the court, which they claimed was the negligent supervision charges made by the Exhibit A and Exhibit B claimants.

- does the Diocese stand in relation to the Roman Catholic Church like a sub-part (like a corporation or member of a trade group), or is it a unique legal entity?

This one was mainly argued in P.50 (Diocesan Motion To Strike Appearance of Nixon Peabody). Mr. Egan, representing the Diocese, had sought to find out during discovery if the other diocesan clients of Nixon Peabody had given their consent to Nixon Peabody taking on the job of defending the insurance company (the MIIF, Massachusetts Insolvency Insurance Fund, stepping in for Home Insurance). It was his contention that this consent was required by Mass. law. This request for discovery was denied by the judge, leading to motion P.50. But, consent from their diocesan clients was only one prong of Egan's difficulties with Nixon Peabody.

Well before litigation began, Mr. Egan had complained in a letter to Nixon Peabody that Diocesan interests in the case were being "held hostage", in effect, because he suspected that the opposition had access to an inside track of closely held information shared by dioceses.

In the motion itself, Egan stated that the bishops of all dioceses in the U.S. were members of the United States Conference of Catholic Bishops (USCCB). He claimed that "…a decision unfavorable to the Diocese of Springfield would negatively effect the legal position of those other dioceses in their efforts to obtain insurance coverage for the abuse claims asserted against them…"

Egan granted that the Diocese operated through a different corporate entity than dioceses elsewhere in the U.S. But, in other rulings, he pointed out, attorneys had been barred from representing the adverse interests of parties when the parties are closely related. He gave as examples (1) trade associations and (2) separate subsidiaries of a corporation.

- should the claimants (the alleged victims, numbering over 100) be deposed?

No one in the suit seemed eager to depose the alleged victims, least of all the judge. However, it was often discussed. It would not be too much to describe it as a bargaining chip. It became contentious partly because of the reach. Not only would the current claimants have to testify about their allegations and submit to cross-examination, but also, those who had had their cases settled in 2004. And even those from long ago, whose cases were never settled, might be dragged in, if the rules of discovery would allow it.

The insurers were roundly chastised in the early going by insisting on victim depositions, and in fact their proposed order of discovery placed alleged victims first, and clergy last. This order was reversed by the judge in P.63, "Scheduling Order for Discovery".

On at least one other occasion, the insurers were said to have pressed for depositions. However, it's not clear from the court papers exactly when and under what conditions the insurers renewed their call.

Eventually, the insurers agreed to a set of written questions; and this set of Q and A was part of the final plan for arbitration agreed to by all parties (Diocese, Insurers, and Claimants). Even though the underlying claimants were not party to the suit, they had agreed to stay their claims until the suit was completed, and this agreement apparently gave them some type of standing to participate in the negotiations toward the end of the suit, leading to its dismissal.

- had the Diocese destroyed any documents relating to sexual abuse?

In P.77 the judge ordered that "…the Diocese shall, within seven days of entry of this order, provide a log listing and describing to the extent possible any documents it has destroyed within the last thirty years and which relate to or arise out of allegations of sexual abuse by persons under the Diocese's supervision or control".

In P.79 the Diocese reported that it had "…made further inquiry and responds that no such documents were destroyed."

On the face of it this is a simple yes-or-no inquiry. And yet this exchange implicates not only canon law but also "pontifical secret" and even touches on diplomatic immunity of a foreign state (the Vatican).

The insurers had pointed out in P.69 that according to canon law "…records of criminal cases were to be retained in the secret archive of a diocese for ten (10) years, after which time those records were to be destroyed (although a summary was required to be kept)". The insurers were interested in the summaries.

This issue is linked to the document "Sacramentorum Sanctitatis Tutela" (Safeguarding the Sanctity of the Sacraments), an apostolic letter issued in 2001, which gave new guidelines for the disposition of abuse documents. Previously, abuse allegations were to be resolved by the local bishop, but the SST directive put the Vatican in charge of the documents and indeed, in direct charge of the discipline of the accused priest (although dioceses were supposed to keep a copy of the original documents).

This raised a lot of issues for the insurers. They worried that documents that found their way into State of the Vatican City might not come out (i.e., might not be discoverable). It was unclear to them whether the SST advice was supposed to be retroactive, and equally unclear what type of documents the Diocese was trying to shield under SST. But they were sure that the Diocese was claiming the privilege for certain documents, because it was part of their general objections, number D.

- should the written communications of the accused priests (who numbered about 60) be protected under any of the privileges asserted by the Diocese?

This question will be answered in the next session, where we look more closely at the 5 categories of documents that the Diocese sought to protect from discovery. The total of documents were 7,686. Sounds like a lot, doesn’t it? This impression is mitigated somewhat when we learn that a 20-page report apparently consists of 20 "documents" or perhaps a better word would be "pages". Still, over 7,000 pages is a lot of pages. The categories these privileged documents fell into are the following:

1. Attorney-Client Privilege and Work Product Doctrine
2. Priest-Penitent and Related Privileges
3. First Amendment, Ecclesiastical Privilege, and Religious Autonomy
4. Psychotherapist-Patient Privilege
5. Relevancy and Materiality

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In this installment we talk about the various "privilege" categories which the Diocese claimed for around 7,700 documents.

It will be recalled that on Oct. 18, 2005, the insurers had sent the Diocese their list of requests for discovery. They had a long wait. The Diocese prefaced their preliminary response with a list of preconditions called "general objections".

The list of asserted privileges below is not exactly the same as the general objections, but it is similar, and the most concise version of the privileges. This list is the one used by the judge on Jan. 3, 2007, in deciding whether the documents were privileged, or would have to be produced for discovery.

1. Attorney-Client Privilege and Work Product Doctrine
2. Priest-Penitent and Related Privileges
3. First Amendment, Ecclesiastical Privilege, and Religious Autonomy
4. Psychotherapist-Patient Privilege
5. Relevancy and Materiality

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1. Attorney-Client Privilege and Work Product Doctrine

The Diocese had objected to releasing any documents containing confidential attorney/client communications (General Objection A) and also any documents prepared in anticipation of litigation or trial (General Objection C).

The insurers responded by first noting that they did not seek any attorney/client or work product material relating to the present action (the 2005 lawsuit brought by the Diocese) but rather only for material relating to the underlying claims.

They went on to frame the issue as one in which two duties collided. The duty of an insured to cooperate with their insurer, particularly with respect to investigating claims, and the duty of both lawyers and clients to keep their discussions and written communications confidential. In the insurers view, the duty to cooperate required a policy holder: to (1) submit proof of loss; (2) be examined under oath; (3) produce documents; (4) avoid voluntary assumption of obligations; and (5) to mitigate damages. If these examples sound like they were drawn from an authoritative textbook, it's because they were: Couch on Insurance 3d.

Next, the insurers asserted that under Mass. law, an insurer may disclaim liability if a policyholder fails to cooperate, and that as a general rule, a plaintiff's refusal to provide documents constitutes a breach of the duty to cooperate.

The Diocese responded that the insurers were failing to distinguish between (1) their right to obtain information about claims, and (2) their right to obtain information in the form of confidential attorney/client communications. They pointed out that the main reason for the cooperation clause was to avoid collusion between the insured and claimants. They maintained that lawyers for the Diocese had separate obligations to the insurer and the insured, and that the first one (duty to cooperate) did not supercede the second one (duty of confidentiality).

2. Priest-Penitent and Related Privileges

This privilege, under which the Diocese sought to shield 107 documents, is based on the following statue:

M.G.L. Chapter 233: Section 20A. Privileged communications; communications with clergymen.

Section 20A. A priest… shall not, without the consent of the person making the confession, be allowed to disclose a confession made to him in his professional character, in the course of discipline enjoined by the rules or practice of the religious body to which he belongs; nor shall a priest… testify as to any communication made to him by any person in seeking religious or spiritual advice or comfort, or as to his advice given thereon in the course of his professional duties or in his professional character, without the consent of such person.

One may wonder why this is invoked at all, since confessions are ordinarily face-to-face events. However, courts have found that documents and even some actions (such as showing a priest a gun, in one example) could be protected under the statue.

The insurers pointed out that the mere fact that one party to a conversation was a priest was not enough to protect the communication or document; the communication must rise to the level of "religious or spiritual advice or comfort" in order to qualify for the privilege.

To support their desire to see as many of the Priest-Penitent documents as possible, the insurers cited the Mass. Rules of Evidence as well as Federal law which they said required protected documents to be confidential, i.e., never disclosed to any one else at all, in order to qualify for the privilege. They also cited state law (Penn.) limiting the "confessional" privilege to those things showing religious motivation on the part of the penitent, and those alone.

In their defense the Diocese noted that the spiritual counseling privilege is not limited to a person-to-person confession (though it is grounded there), that it may be extended to all acts by which ideas may be transmitted (citing Mass. law), and that the protection extends not only to the communication from the individual seeking counsel, but also, to the advice given. For example, there were letters exchanged between bishops and priests which touched on theological matters, forgiveness, and rehabilitation, and these were thought by the Diocese to be fit for exclusion from discovery.

3. First Amendment, Ecclesiastical Privilege, and Religious Autonomy

The First Amendment prohibits a state-established religion, as well as state interference with religious belief. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…"

The Diocese invoked this clause seeking to shield documents from discovery that they felt were purely ecclesiastical in nature (relating to Canon Law or to internal affairs of the Diocese), or, relating to laicization (the ultimate disciplinary penalty for priests).

To back up this claim they described the Diocese as a "…purely ecclesiastical entity of the Roman Catholic church, having no separate legal existence…"(citing the Wheeler case of 1979).

They said that the special constitutional protections afforded to religion are recognized by Mass. law, as well as Federal law. Indeed, they asserted that a 1994 case heard by the Supreme Judicial Court established an even higher degree of protection for religion under the Mass. constitution than that found under the Federal Constitution.

The Diocese also cited a recent Mass. decision by the Supreme Judicial Court which found that "…the assessment of an individual's fitness to serve as a priest is a particular ecclesiastical matter entitled to…constitutional protection." (Hiles v. Episcopal Diocese of Mass. 437 Mass. (2002).

The Yoder decision from 1972 had famously found that "[t]o have the protection of the Religion Clauses, the claims must be rooted in religious belief." The insurers cited Yoder and declared that the present lawsuit was really all about secular matters, namely, disputes regarding the insurers' rights and obligations with respect to claims of sexual abuse alleged to be covered under liability insurance. They found no implication of the First Amendment (since they were not seeking documents about the beliefs of the Diocese, but rather about its actions) and asked the court to order the Diocese to produce all documents for which a First Amendment right was claimed.

Ecclesiastical arguments also involved a duty to confidentiality that the Diocese asserted it felt toward its communications with the Vatican.

The process of laicization, or defrocking, is a last resort for handling a troubled cleric – it is put into play only after every other method of correction has failed. Because of this, the paper trail about laicization in chancery archives and from diocese to Vatican (which must rule on the matter) can involve many documents. The insurers wanted them, and the Diocese refused.

Almost certainly, documents concerning Mr. Lavigne (the former Rev. Richard Lavigne) were part of this tug-of-war. It's probable that documents concerning Mr. Meehan (the former Rev. Richard Meehan, defrocked in 2006) and Mr. Malboeuf (the former Rev. Ronald Malboeuf, defrocked in 1988) were also involved, since accusations against them were part of the 2004 settlement (the Exhibit B group). The laicization documents concerning two other troubled clerics, the former Rev. Alfred Graves and Edward Kennedy, both defrocked in 2006, also relate.

In the church autonomy area, probably the most germane point is whether the documents sought could fairly be described as "administrative" in nature (relating to, for example, a re-evaluation of a priest's fitness for employment) or whether documents were subject to limitations because they involved strictly ecclesiastical church matters.

What, exactly, constitutes the church autonomy doctrine was summarized by Judge Duffly during the lawsuit in her appeals ruling of March 20, 2007 (P.89):

"[T]he First Amendment prohibits civil courts from intervening in disputes concerning religious doctrine, discipline, faith, or internal organization." Alberts v. Devine, 395 Mass. 59, 72 (1985). It "permits hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters." Wheeler v. Roman Catholic Archdiocese of Boston, 378 Mass. 58, 61 (1979). "State governments . . . are required to refrain from involving themselves in ecclesiastical affairs or controversies." Id. at 61-62. As a result, courts lack jurisdiction to adjudicate "church disputes touching on matters of doctrine, canon law, polity, discipline, and ministerial relationships." Williams v. Episcopal Diocese of Mass., 436 Mass. 574, 579 (2002).

4. Psychotherapist-Patient Privilege

The Diocese was at pains to point out that "…its relationship with its priests is different than that of an ordinary employer. Priests are not ordinary employees…the relationship between the Bishop and the priests is a sacred one.." Therefore, the Diocese objected to the insurers' argument that the Diocese was merely obtaining evaluations for employment. The Diocese felt that this interpretation "…misstates the nature of the relationship…"

Furthermore, the psychotherapy evaluations were not placed in the priests ordinary personnel file, but rather in a special file. The Diocese felt that this elevated the contents of the second file to a higher, confidential context which should not be breached by discovery. In all of their arguments they relied on confidentiality and privacy rights that they asserted should be inviolate in any psychotherapy issue.

Against these claims by the Diocese, the insurers asserted that the Diocese was not the client – therefore, it had no claim to confidentiality of records, which claim could only be asserted by the client. Indeed, because the Diocese had commissioned the evaluations (hired a third party), the documents were no longer confidential and were also not for the purposes of "diagnosis and treatment", and thus did not meet the test for exclusion from discovery.

In a similar way the insurers attacked the Diocese's assertions of the right to privacy. Again, it was a question of standing. The insurers pointed out that only the person directly involved (the priest himself) could assert his right of privacy and protect his documents. The Diocese could not assert this right for him, in order to protect his documents that happened to be in the possession of the Diocese.

The Talbot case came in for heavy rotation during the psychotherapist-patient privilege debate because it dealt with personnel records, and some of those were psychotherapy evaluations. Talbot's was cited by both parties, though of course in different ways.

5. Relevancy and Materiality

This seems to have been a rather large category.

The Diocese sought to limit discovery to either priests or accusers of the Exhibit A claims (those still pending) and the Exhibit B claims (those settled in 2004).

As the insurers pointed out, this grouping, though large (108 claims) obviously did not constitute the universe of abuse claims made against the Diocese. The insurers were dogged in their attempts to extend discovery to these other claims. In an outburst of agreement, the claims were called, logically enough, "Other Claims" by both sides.

The Diocese granted that discovery requests could be broader than evidence in court, but they interpreted the language of Mass. Civil Procedure ("reasonably calculated to lead to the discovery of admissible evidence") to mean that the Diocese had some leeway in deciding what was "reasonably calculated". Not surprisingly, they felt that many of the insurers requests were not reasonable at all.

They objected to the implications of the insurers' search for a "pattern and practice" of willful ignorance on the part of the Diocese about priestly abuse: "…an outrageous claim which is pure speculation and there is no rational basis for the argument…"

The Diocese also asserted that what it knew about some other claims (other than the 108), or claims committed by some other person (other than the 60 or so accused priests), had no relation to the issues at hand; this assertion proved, in their view, that the requested discovery was not reasonably calculated to lead to admissible evidence.

Against these arguments the insurers' claimed they had a right to find out if a given claim was a covered result of an "occurrence" or whether it should be excluded from coverage because it was "expected or intended". And, one way to judge the validity of claims was to establish the pattern and practice of the Diocese over time, i.e., to learn about how the Diocese handled complaints in a broad time frame.

Since one of the insurers' defenses was that, if they had known of abuse, they would not have written subsequent coverage, they also sought to find out if the Diocese had concealed such abuse from the insurers' at the point when they were writing a new policy. Such concealment would void the coverage. This explains why the insurers were anxious to examine as many documents as possible that related to insurance claims, whether or not they were part of the 108 claims that were part of the suit proper.

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Now that we have the preliminaries out of the way, we next follow the progress of the suit, starting with June 14, 2005, when the Diocese filed suit in Hampden Superior Court against their insurers, and ending around three years later, on or about (as a lawyer would say) June 14, 2008, when a settlement was reached.

Chapter Three: Introduction To The Suit

2009-04-15T11:13:00.000-07:00

The lawsuit formally known as Hampden Superior Court Civil Action 05-602, which resulted in an 8.5 million dollar settlement between the Springfield Diocese and our insurers, began on June 14, 2005. It concluded with dismissal almost exactly three years later, in late June, 2008. It covered roughly 60 years of history, since the earliest reported claim was from 1948.

The case grew to include thousands of pages from Diocesan files, millions of dollars in legal fees, 8 out-of-state insurance companies (and one – Lloyd's of London – from out of the country), 1 state agency (the Massachusetts Insurers Insolvency Fund, who stepped in for the insolvent Home Insurance), 26 lawyers and interested parties, a half-dozen lawyers for the underlying claimants (those with allegations against the Diocese), 186 docket entries and 146 court papers (motions).

One of the few light moments came when Lloyds addressed a wistful query to the bench asking to be deposed in London, or, if not London, then would the Court kindly consider Boston,which had not only counselors on retainer for Lloyds but, also, readily available first class hotels. The Court was in a stern mood and ordered them, forthwith, to appear in Springfield.

Possibly the first question that comes up is why the Diocese sued the insurance companies in the first place. That's an easy one. The Diocese paid out 7.7 million to settle 46 claims of sexual abuse in August of 2004. Over the next year or so they asked for reimbursement from their insurance companies, only to find that the companies refused to pay, citing negligent supervision issues which could render coverage null and void. In other words, the incidents in question were arguably not "accidents" as defined by the insurance industry.

A related question is why the claims were not made, for the most part, against the individual priests, but rather, against the Diocese. This too, has a straightforward answer. Most priests may be rich in virtue but they are almost never rich in money. When a claim is made, it is necessary to make it against someone who can pay. Additionally, there is the "knew, or should have known" argument of the church-as-employer which often assigns blame to supervisors for the actions or negligence of their employees.

A side issue is that, largely because of its status as corporation, the Diocese first and foremost defends itself. It does not ordinarily try to clear the name of, nor defend priests accused of abuse, who must provide their own lawyers. In practice, however, jury trials of priests or dioceses are almost unheard of. Two other types of trials take their place: canonical trials, which are secret, and civil trials for damages, which are not. Thus the importance of the insurance trial for public awareness – even though it was almost foreordained to end in settlement.

The employee argument is not straightforward. For example, the church sometimes argues that it is not an employer, and that priests are sub-contractors who come and go as they please. Courts have differed on how closely a priest resembles an employee.

The suit was very specific to insurance coverage for the 18 years between 1968 and 1986. The reason is that the Diocese, as far as it knows, had no general liability insurance before 1968. And, as of 1986, all subsequent insurers had exclusions against sexual abuse. Indeed, two of the original defendants (Colonial Penn and Interstate Fire and Casualty) were dropped from the suit for this reason.

Ironically, secondary coverage policies from two other insurance companies (American Home and National Union Fire Insurance) were found during the discovery process and just six months before settlement the judge ordered that these policies would drop down to provide primary coverage (Papers 132 and 135, not online).

In one sense the fact that multiple carriers were involved is beneficial for the layman. Because of the horrendous complications of arguing each individual policy, most of which overlapped, the insurance companies were forced to put their case into a more concise form. This approach is helpful for those who don't work in cubicles.

Settlements may sound like a lot of money, especially million-dollar ones. In this settlement, 5 million is to go to the 60 or so current claimants, and 3.5 million to reimburse the Diocese for money they paid to the claimants whose cases were settled in 2004.

But, the dollars for settlements pale in comparison to jury awards. A recent example occurred in the Burlington Diocese of Vermont. In May of 2008 they were found liable and a man was awarded $8.7 million. That's one man, one case. The Catholic Observer editorialized about this award in its May 23 issue (see Settlement Articles on the WMC site).

The local editorial complained that jurors did not hear about how the Burlington Diocese had mended its ways (the judge had barred that testimony). The editorial predicted that if the jurors had learned more about present-day conditions and attitudes, the results would have been different.

This prediction was wrong. In a Burlington Diocese case concluded on Dec. 17, 2008, a different jury heard about current child-protection conditions. Lawyers for the diocese had Kevin Scully, a former Burlington Police Chief and now the diocese’s director of safe environment, talk about the diocese’s efforts to prevent child sexual abuse by church personnel. Jurors also heard a lengthy deposition from Bishop Matano – and yet still concluded that the victim was entitled to $900,000 in compensatory damages, and $3.5 million in punitive damages. There are about 20 church abuse lawsuits still pending in Vermont.

In Springfield, there has never been a civil lawsuit that actually went to trial, so the subject of reimbursement looms large. And, deciding how, exactly, the underlying claimants could prove to both Diocese and insurers that they were owed money was the subject of a bitter controversy that raged throughout the case.

In Paper 57 (not online), the insurers wanted the order of depositions to be 1. settled claimants, 2. pending claimants, 3. lay witnesses, 4. lay personnel of Diocese and 5. clergy of Diocese.

Judge Agostini largely reversed this order. In his order for discovery (P.63) he ruled that the lay witnesses would be first, followed by lay personnel, clergy and others. He deferred claimant depositions to a second phase, writing that "I am also aware that sometimes complaints for declaratory judgment regarding insurance coverage are resolved without the need to depose claimants. In any event I expect by allowing the "dust to settle" after the above discovery, we will be in a better position to assess the need for depositions of the claimants".

Here, there is the first hint of a theme. At one point or another all of the parties referred to the possibility that the trial upon which all of the pretrial hearings and discovery and depositions and motions, counter-motions and counter-counter-motions hinged – the real thing – would never actually take place. And that possibility turned out to be true.

The suit at times resembled a trial within a trial, in which the arguments of motions and counter-motions took the place of arguments in open court. In addition to this proxy trial by motions there was also an awareness of the court of public opinion, which heard the arguments through various media outlets. These other trials should be kept in mind as we examine the progress of the suit.
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This lawsuit got quite tangled at times, as a glance at the court docket shows. The scheduling orders started with a tidy outline of deadlines but they seemed to be taken more as suggestions than otherwise. Preemptive motions, petitions for protective orders, and emergency motions often made hash of the schedule. It didn't help that two companies were dropped, and two added, in the course of litigation.

Many of the court papers consist of numbing amounts of fax confirmations proving that parties and their lawyers were properly notified of the latest court business. Tucked here and there into the five boxes of files are some genuinely interesting arguments for and against the motions. The decisions by the judges are always significant and well-reasoned, if necessarily thick with legal citations. One opinion was written by an Appeals Judge, Fernande Duffly, and all others were by Judge John Agostini.

The lead attorney for the Diocese was John Egan. He was assisted by Kevin Withers, who appears to have written several of the motions, and also Edward McDonough, Jr. All three are from the legal firm of Egan, Flanagan and Cohen, P.C., in Springfield.

The case reached far back, spanning the administrations of Weldon, Maguire, Marshall, Dupre and McDonnell. Bishops Maguire and Dupre were deposed, as was Rev. James Scahill and other clergy. The civil lawsuit against Bishop Dupre, which at one time was bundled with the earlier settlement of 2004, was finally settled in 2008. Dupre contributed money to the settlement for the two men who brought suit against him.

Judge Agostini appears to have handled the case with lots of patience – but three years is a long time. Everything seemed to take longer than it should. He observed once that "…as we take one step forward, there's always one step back". He preferred not to interfere with the merits of discovery. He warned the litigants that once discovery was concluded, the parties were likely to be bound to their initial responses without the opportunity to "supplement" them with information from a second deposition.

At one point he did a little scolding: "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". (P.101)

Agostini often cited the need for motions to be written "with particularity". He quoted approvingly the "rigorous presumption of openness" as a guide to what evidence should appear in court. In one of his decisions, he even quotes Oliver Wendell Holmes: "…those who administer justice should always act under the sense of public responsibility…every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed…".

Maybe this explains why the requests from local media such as Channel 3 TV and Channel 22 for permission to film the pretrial hearings were routinely approved.

Two precedent-setting clergy cases, Ryan v. Ryan, 419 Mass. (1994) and the Talbot case were cited often. The first case involved protected documents in an annulment case and had much to do with privacy.

The Talbot case is formally known as Society of Jesus v. Commonwealth, 411 Mass. (2004). In it, Rev. James Talbot faced a criminal complaint for sexual assault and the state sought personnel documents by way of subpoena to build its case. The Jesuits sought to quash the subpoena by raising a host of issues: freedom of religion, church autonomy, and confidentiality issues, calling the hunt for documents an intrusion into privacy. They viewed the search as an infringement on religion, because if it went forward, they would not be able to keep the confidence and carry out the discipline of their priests. Talbot also spawned an appeal, which can be seen here.

In the Diocese v. Insurers suit, the document fight and the issues about supervision were probably the two main issues. They are closely related.

The insurers were always seeking to broaden the scope of documents to help determine the legitimacy of claims and the Diocese was equally adamant about narrowing the availability of documents. The Diocese largely lost the fight. But that does not explain why the insurers nevertheless gave them 8.5 million dollars – especially since they were trying hard to walk away with no payout whatsoever, as they had done in 2004.

Here are some distinctions to be made about negligent supervision claims, from an HR manual on the web. These concepts are the raw material for many of the motions and counter-motions of the lawsuit between the Diocese and insurers:

…to establish a claim of negligent supervision an individual generally must demonstrate the following elements:

* The employer knows, or should have known, that an employee is engaging in wrongful conduct.
* The employee's wrongful conduct is substantially certain to cause injury to a third party.
* The employee's conduct, through intentional or negligent action, results in injury to a third party.
* The injury was a reasonably foreseeable consequence of the employer's lack of supervision.

… a negligent supervision claim might be successful if the employee's conduct occurred while subject to the supervision or control of the employer. Even then, employers generally must have had some reason to anticipate the harmful conduct by the employee before they may be held liable for failing to prevent the harm through properly supervising the employee.

…a claim that an employer failed to take proper care in supervising its employees fills the gap between a claim for negligent hiring and a negligent retention claim. The best way for an employer to avoid negligent-supervision claims is to pay close attention to the conduct of employees after they are hired, to take prompt action if observation indicates that a particular employee may be behaving inappropriately, and to clearly document such actions and observations as they occur.

[This information was found at the website of Ceridian, a business services company specializing in human resources: www.ceridian.com/myceridian/article/1,2481,14760-65471,00.html]

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Now, I want to introduce two key issues that we'll hear more about, and also give a Guide to the Papers, which will help readers find their way among the court papers posted on the WMC site.

The key issues are: the importance of documents when negligent supervision is contested, and a question about cooperation clauses in insurance policies – what happens when the cooperation breaks down?

but first...................

A Guide to the Court Papers (capsule reviews)

If someone wanted to get to the meat of the papers, they would do well to stick to the judge's decisions (sometimes called Decision and Order, or Memorandum). These are valuable on many counts. One, they have the best writing. Two, the judge proceeds by summarizing each side, often includes a "discussion" section, and then lays down the law. Thus, you get the concise version of each side's argument without wading through verbal swamps. In this case, the judge's most important decisions are in Papers 77, 86, and 89.

Another important paper is number 69, which is the Insurers' summary of the issues raised by the documents in the privilege log of the Diocese. This is a 33-page explanation of why they want to see the documents, coupled with an attack on the reasons put forth by the Diocese to shield the documents.

The proposed Protective Order drafted by the Diocese (part of P.82) is also important. This 4-page document is often referred to in subsequent papers. The Diocese sought to put it into action, the Insurers sought to deep-six it, and the judge weighed their arguments.

Court Papers for Hampden Superior Court Civil Action 2005-00602

Paper 50 (Diocesan Motion To Strike Appearance of Nixon Peabody), May 26, 2006
[Attorneys for the Diocese objected to one of the insurers being represented by the same law firm that represented other dioceses. They argued that this constituted a conflict of interest that would harm the Diocese.]

Paper 61 (Diocesan Motion To Extend Time To Respond To Discovery), July 17, 2006
[The insurers first request for discovery went to the Diocese on Oct. 18, 2005. Here, the Diocese reports that it is about two-thirds through its review of the papers which will be given to insurers, that it missed the deadline of June 30, and asks to have it extended to July 21.]

Paper 62 (Decision and Order on Motion To Strike Appearance of Nixon Peabody), July 17, 2006
[The judge responds to the Diocesan motion to dismiss the law firm Nixon Peabody by denying the motion.]

Paper 63 (Scheduling Order For Discovery), July 20, 2006
[The judge establishes two phases for discovery. In the first, all documents will be produced, and witnesses and everyone other than the claimants will be deposed. Then, the first phase will be evaluated. The second phase will include claimant discovery, and, if necessary, their deposition.]

Paper 67 (Insurers Motion To Compel Production of Documents), Aug. 3, 2006
[In this 6-page emergency motion the insurers describe the slow pace of discovery and complain that, under the circumstances, they can't meet court deadlines for deposing their witnesses. They state that since the first request on Oct. 18, 2005, they have not received a single document from the Diocese: "…the difficulty posed by the Diocese's intransigence is significant and the likelihood of prejudice to the Insurers is immediate…".]

Paper 69 (Insurers' Statement of Anticipated Discovery Issues), Aug. 11, 2006
[This is the Insurers' summary of the issues raised by the 7,686 pages in the privilege log of the Diocese. A 33-page explanation of why they want to see the documents, coupled with an attack on the reasons put forth by the Diocese to shield them.]

Paper 73 (Opposition To Insurers' Motion To Compel Discovery), Oct. 3, 2006
[The Diocese objects to the Insurers Motion to Compel P.72, (not available online), not to be confused with the earlier P.67, the Emergency Motion To Compel, which the judge allowed. Both motions seek to force the Diocese to produce documents that the Diocese wants to hold on to.]

Paper 77 (Decision and Order on Insurers' Motion to Compel), Jan. 3, 2007
[Possibly the most important paper of the suit. The judge rules on the battle over the papers that the Diocese wants to keep secret in an 11-page decision. He allows the insurers to see nearly all of them, but protects attorney-client correspondence of the Diocese. This decision is appealed by both parties.]

Paper 79 (Diocesan Status Report On Discovery Produced Under Court Order), Jan. 18, 2007
[The Diocese reports that it has turned over some papers to the insurers and not others, and explains why.]

Paper 82 (Diocesan Motion To Permit Discovery Under a Protective Order), Jan. 24, 2007
[The Diocese seeks to create a class of "protected responses" that, if ordered by the judge, will treat the papers given to insurers during discovery much like impounded documents which must be given back to the Diocese or destroyed within 30 days, and not disclosed to anyone else.]

Paper 83 (Insurers' Opposition To Diocesan Motion To Permit Discovery), Jan. 29, 2007
[The Insurers object to the proposed Protective Order.]

Paper 84 (Decision and Order After In Camera Review), Feb. 5, 2007
[Judge Agostini reports his decisions about which documents must be produced under the so-called "confessor-penitent" privilege after viewing them "in chambers", i.e., privately. The Diocese sought to protect 107 documents.]

Paper 86 (Decision and Order on Motion of the Diocese for Protective Order), Feb. 13, 2007
[The judge decides not to enforce the Protective Order sought by the Diocese.]

Paper 89 (Appeals Court Order Affirming Orders of Jan. 3, and Feb. 13, 2007), March 20, 2007
[Judge Fernande Duffly from the Court of Appeals upholds the decisions of Judge Agostini in his Jan. 3 (Paper 77) and Feb. 13 (Paper 86) rulings. This is 11 pages from a different perspective and makes for interesting reading.]

Paper 93.A. (Claimants' Motion For a Status Conference), April 9, 2007
[In Paper 93, in one of the few appearances of the Claimants (sometimes referred to as the "underlying claimants"), their attorneys had urged a status conference in order to expedite the case. In this response, the Insurers agree with the goals of the proposed status conference but suggest that if a conference takes place it should concentrate on expediating the clergy deposition schedule which is already underway.]

Paper 101 (Decision and Order On Insurers Motion For Protective Order, May 25, 2007
[Only two pages of this paper are online. In this one, Travelers and Lloyds had asked for special treatment in having depositions taken in New Jersey and London, respectively, rather than Springfield. They are turned down.]

Paper 111 (Claimants' Motion Seeking to Force Mediation), Aug. 27, 2007
[In a rare appearance, John Stobierski, one of the attorneys for the Claimants, seeks to compel mediation. Although this motion is apparently not affirmed, the effort to bring the parties to mediation eventually succeeds; mediation begins in February.]

Paper 111.1 (Insurers' Response to Claimant's Motion For Mediation), Aug. 27, 2007
[The Insurers respond affirmatively, but insist on written responses from all the claimants as a condition for mediation. They also comment on recent positions and statements of the Diocese.]

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Negligent Supervision

Earlier I quoted an HR manual about determining valid claims of negligent supervision. Many of these concerns apply to the Diocese v. Insurers case, but let's zero in on a single word:

"The best way for an employer to avoid negligent-supervision claims is to pay close attention to the conduct of employees after they are hired, to take prompt action if observation indicates that a particular employee may be behaving inappropriately, and to clearly document such actions and observations as they occur". (emphasis added).

Here, employers are told that their observations about misconduct are important and should be recorded. For example, noting even a hint of misconduct may be germane, since recording it does no harm. Even more so should letters of complaint, an irate phone call, or a poor evaluation be documented.

Also, they should make a record of their own actions in response to perceived or proven employee misconduct. These permanent records can act as a shield to mitigate liability in case of legal action.

By the same token, victim's rights groups emphasize that victims, too, need to place great emphasis on documentation. A "he said, she said" legal case can be extremely difficult to solve with no witnesses or corroboration. However, with more documents of many kinds, the clarity of the situation improves and the probability of the truthfulness of the allegation is more likely to emerge.

We must remember here that the lawsuit was not about sexual abuse per se. However, documentation about reports of abuse, whether alleged or proven, was important, because it tended to show what the administration of the Diocese did or did not do in response to reported abuse. The more that documents showed how the subject of abuse was handled, the more a pattern of behavior could be proven or disproven. Because of this, the insurers cast a very wide net.

The discovery process is most always important, but in this lawsuit the discovery process was practically the whole show, since there never was a trial. Most of the energy spent by the legal teams concerned the search for documents. The most hotly contested documents were the ones placed in various privilege logs by the Diocese during discovery.

The actual number of pages that the insurers fought to get and the Diocese just as staunchly fought to keep was 7,686. That is the number mentioned in Agostini's Paper 77, where he ruled on the matter.

Cooperation Clauses

As we know, the breakdown of the cooperation between insurer and insured is at the heart of the case. When the insurers refused to honor claims, the Diocese took them to court to force the issue.

Clearly, the Diocese felt the insurers had shirked their duties. The insurers' refusal to pay was not well-publicized before the suit, but during the pretrial hearings, it became clear that the insurers' felt that they, too, were owed certain duties, and, that the Diocese had fallen short. One of those duties is the responsibility of the insured to help the insurer investigate claims.

It is not always clear in the court papers how much or how little the Diocese helped to investigate claims prior to the rupture.

But, a different question came into high relief as the proceedings dragged on. What happens to this obligation to cooperate when the insurer refuses to cover claims made by the insured, and, in fact, walks away? Does the insured (the Diocese) continue to be bound by cooperation clauses? Must they continue to help investigate claims (and even provide documents that might undermine their suit) to the same companies that walked away from them?

Chapter Two: Timeline

2009-04-15T11:12:00.000-07:00

July, 2004 - Diocese settles 45 consolidated abuse claims for $7.7 million; many claims are left unresolved.

June 14, 2005 - Diocese files Declaratory Judgment Action in Hampden Superior Court against 7 insurance companies seeking to recover 7.7 million from the previous year's payout and to establish insurers' liability for the unresolved claims and new claims.

June 16, 2005 - Judge John Agostini is assigned to the case.

May 17, 2006 - The Diocese's claim against Colonial Penn Insurance Co. is dismissed. (Penn's coverage excluded sexual abuse or molestation.)

May 26, 2006 - Motion #50 by the Diocese seeks to block Nixon Peabody, LLP from representing the Massachusetts Insolvency Fund, citing potential conflict of interest because Nixon Peabody also represents dioceses.

July 19, 2006 - Motion #50 is denied.

July 20, 2006 - Motion #63 (Scheduling Order for Discovery) creates two discovery phases, the first to be completed and evaluated before the second begins. Claimant depositions to be in the second phase, if necessary.

July 21, 2006 - Order for summary judgment for Interstate Fire and Casualty. (Their coverage excluded sexual abuse or molestation.)

Aug. 3, 2006 - Motion #67 (Motion to Compel Production of Documents) filed by Insurers to force Diocese to turn over documents.

Aug. 8, 2006 - Motion #67 allowed.

Jan. 3, 2007 - Judge issues Motion #77 (Memorandum Of Decision And Order) concerning Motion # 67 (Motion to Compel Production of Documents). He orders the Diocese to begin sharing most of the 7,686 pages in question, but allows them to shield most "attorney-client privilege" documents from discovery. His decision is appealed by both parties.

Jan. 24, 2007 - Diocese files Motion #82 (Motion for a Protective Order) seeking to block disclosure of discovery documents to the public. This motion is opposed by the Insurers and the Claimants.

Feb. 13, 2007 - Judge issues Motion #86 (Memorandum Of Decision And Order) denying Motion # 82 (Motion for a Protective Order).

March 20, 2007 - State Appeals Judge Duffly affirms the Orders of Jan. 3 and Feb. 13.

Aug. 27, 2007 - Claimants make a motion (#111) to compel mediation.

Oct. 29, 2007 - Insurers and Diocese agree to non-binding mediation, with talks to begin in Feb. Insurers modify plan for depositions; face-to-face cross-examinations will be replaced by simple questionnaires.

Nov. 14, 2007 - Three additional policies providing secondary coverage for Home Insurance are found during the discovery process; Home was one of the original defendants, but had become insolvent by the time the suit was filed; two new companies (American Home Assurance Co. and National Union Fire Insurance Co.) are added to the suit.

Feb. 11, 2008 - Memorandum and Decision orders that coverage from the two new companies will partially replace coverage by the Massachusetts Insurers Insolvency Fund.

April 30, 2008 - After three months of unsuccessful mediation, the judge states that on May 23, he will order a mediated agreement process, or begin trial preparation for November.

June, 2008 - Insurers and Diocese reach agreement to dismiss the lawsuit.

July 2, 2008 - Diocese announces resolution of the lawsuit. Insurers agree to pay $8.5 million to settle sexual abuse claims, past and present, against the Diocese. $5 million will compensate 61 abuse claims through an arbitration process that will award no less than $5,000 and no more than $200,000 per claim. The remaining $3.5 million will repay the Diocese for a portion of the $7.7 million spent in 2004 to settle 46 claims.

Chapter One: Introduction

2009-04-15T11:11:00.000-07:00

On July 2, 2008, the Diocese of Springfield in Massachusetts settled its three-year-old court case with insurance carriers for $8.5 million dollars. Bishop McDonnell was not present at the press conference to announce the agreement, and has avoided discussing the matter since.

To promote a better understanding of the settlement, a timeline, articles from the Catholic Observer (newspaper of the Diocese), accounts of the court case from other media, and the court papers which underpin the reporting have been published at www.westernmasscatholics.org.

This book-length treatment has four sections:
- introduction to the trial and summary of the issues (Chap. 1-4)

- the progress of the suit (Chap. 5-7)

- recent Diocesan history (Chap. 8-16)

- my commentary (Chap. 17-21)
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It's clear in retrospect that the 46 claims settled in 2005 and the 59 settled in 2008 had a long and fitful journey. They were first mentioned at the parish level in hushed conversations with a select few church officials. For many years they were under the radar, but nevertheless worked their way steadily upward. The results of the hearings before the chancery-level misconduct commissions set up in the early 90's were decidedly mixed. They did not satisfy all claimants, for a variety of reasons.

By the early 2000's, many had the motivation to press lawsuits, and did so, following the lead established by the victims of the Boston abuse crisis, which broke in the spring of 2002. The key difference between the lawsuits of the 90's and those of the new millennium seems to be that, more and more, the Diocese was named as a defendant, in addition to, and sometimes even in place of, the accused church employee.
* Disclaimer: It should be noted that my reporting on the earlier years of the Springfield abuse crisis uses many quotes and other information from the dozens of newspaper accounts of the day. Due to the sheer volume of material I am not attributing each quote to its specific story, though I would be glad to supply the full citation to interested parties. I am indebted to the excellent reporting of the Springfield Republican and Union-News, and to reporters Bill Zajac and Stephanie Barry. Other important sources are the invaluable www.bishop-accountability.org, the Boston Globe, the New York Times, and the Berkshire Eagle.
**Fair Warning: This is largely industrial-strength church history. It is not light reading. The court sections are purposely redundant (because the thread of the argument can be easily lost), and Diocesan positions are complex. Partly, this is because the Diocese is a civil corporation as well as a canonical unit with pastoral duties.
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I was moved to undertake this project after a letter from Catholic scholar David O'Brien appeared in the July 8, 2008 issue of the Berkshire Eagle. The letter can be viewed here. Mr. O'Brien called on local Catholics to quiz the lay leaders of such groups as the Diocesan Pastoral Council, asking them the "...hard questions that should constitute the agenda of Catholic deliberations in Western Massachusetts..." so that we can learn more about how the abuse was able to occur, and who should be held accountable.
While I agree with Mr. O'Brien, I think we first need to understand the lawsuit, particularly since it involved such a large sum of money, and such a wide span of time (1948-2008). Why did the suit happen, what issues were explored, and why was it settled, rather than heard by a jury? What positions did our lawyers take, how did the insurers respond, and what did the judge decide about the arguments presented?

Getting a handle on what happened was practically impossible for the average pew-sitter, since news about the case dribbled out only every six months or so over the three-year trial, only to disappear as quickly as it came.
It didn't help that there was no news about the case whatsoever in parish bulletins and from the local pulpits. Add to this the tone of the coverage in the Catholic Observer (the Diocesan newspaper), which tended to twist the facts reported by the mainstream media. Under these circumstances it was hard to resist suspicion of Diocesan intentions.
While the somewhat sensational topic of sexual abuse is certainly a grave offense, and key to the story, the court case was civil, not criminal. The trial was always more particularly about what sort of damages should be awarded to a plaintiff charging negligent supervision, how the negligence could be proved – and who should pay for those damages.

This aspect puts the 8.5 settlement squarely in the category of a governance issue, rather than a sexual one. The split settlement, in which both sides blinked, raises a simple question not easily answered – why, if each side was so confident of their positions, did they blink so hard?
Catholics seek the truth. They love it and are drawn to it. Even when the interests of civil and religious society seem most opposed, the hope and belief is that they can be reconciled without slighting the integrity of either one. I believe that the study of the court documents can help us along this path of reconciliation.

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Court Papers and Articles

The court papers and articles are on the www.westernmasscatholics.org web site.
A direct link to the court papers is here.
A direct link to the articles is here.

The rulings by the judges (sometimes called Orders and Memorandum) are of high interest. These detailed 11-page rulings recapped the respective arguments, discussed their merits, and then laid down the law.

Court Papers for Hampden Superior Court Civil Action 2005-00602

Paper 50 (Diocesan Motion To Strike Appearance of Nixon Peabody), May 26, 2006
Paper 61 (Diocesan Motion To Extend Time To Respond To Discovery), July 17, 2006
Paper 62 (Decision and Order on Motion To Strike Appearance of Nixon Peabody), July 17, 2006
Paper 63 (Scheduling Order for Discovery), July 20, 2006
Paper 67 (Insurers Motion To Compel Production of Documents), Aug. 3, 2006
Paper 69 (Insurers' Statement of Anticipated Discovery Issues), Aug. 11, 2006
Paper 73 (Opposition To Insurers' Motion To Compel Discovery), Oct. 3, 2006
Paper 77 (Decision and Order on Insurers' Motion to Compel), Jan. 3, 2007
Paper 79 (Diocesan Status Report On Discovery Produced Under Court Order), Jan. 18, 2007
Paper 82 (Diocesan Motion To Permit Discovery Under a Protective Order), Jan. 24, 2007
Paper 83 (Insurers' Opposition To Diocesan Motion To Permit Discovery), Jan. 29, 2007
Paper 84 (Decision and Order After In Camera Review), Feb. 5, 2007
Paper 86 (Decision and Order on Motion of the Diocese for Protective Order), Feb. 13, 2007
Paper 89 (Appeals Court Order Affirming Orders of Jan. 3, and Feb. 13, 2007), March 20, 2007
Paper 93.A. (Claimants' Motion For a Status Conference), April 9, 2007
Paper 101 (Decision and Order On Insurers Motion For Protective Order, May 25, 2007
Paper 111 (Claimants' Motion Seeking to Force Mediation), Aug. 27, 2007
Paper 111.1 (Insurers' Response to Claimant's Motion For Mediation), Aug. 27, 2007

Catholic Observer Articles

1. Feb. 2, 2007: Diocese Offers All Its Abuse Documents to Insurers
2. Feb. 16, 2007: Diocesan Attorneys, Insurance Carriers Appeal Rulings
3. April 13, 2007: Diocese To Turn Over Documents In Insurance Case
4. May 23, 2008: Church History Missing in Burlington Verdict (editorial)
5. July 11, 2008: Diocese Settles With Insurance Carriers, Offers Arbitration
6. July 11, 2008: Another Step Forward (editorial)
7. July 11, 2008: Diocesan Attorney Answers Questions About Settlement

Other Articles

1. June 16, 2005: Diocese Takes Insurers To Court (Springfield Republican)
2. Dec. 3, 2006: Insurers Call For Church Records (Springfield Republican)
3. Jan. 11, 2007: Insurers Win Access To Church Documents (Springfield Republican)
4. Jan. 25, 2007: Diocese Documents In Dispute (Springfield Republican)
5. July 2, 2008: Insurers To Pay Diocese 8.5 Million (Springfield Republican)
6. July 3, 2008: Insurers To Pay 8.5m In Abuse Case (Boston Globe/AP)