Friday, September 23, 2005
C.A: Mediation Privilege Bars Release of Priest’s Personnel Records
By a MetNews Staff Writer
Summaries of the personnel records of 26 Catholic priests being sued for molesting children cannot be publicly disclosed because they were part of a mediation process, the Court of Appeal for this district ruled yesterday.
Overruling Los Angeles Superior Court Judge Haley J. Fromholz, Div. Eight granted the priests, identified only as Doe 1 et al., a writ of mandate prohibiting the summaries’ release.
“Because those summaries were prepared for purposes of an ongoing mediation process, contain admissions of liability by the Archdiocese, and reveal something about the mediation discussion, we agree that their disclosure would violate the mediation confidentiality privilege,” Justice Laurence Rubin wrote for the Court of Appeal.
The 26 are among 118 priests whose records were, for purposes of mediation, subjected to a “proffer protocol” under which the Archdiocese of Los Angeles, the principal defendant in nearly 500 molestation suits, summarized the records of priests who might have exhibited a “sexual interest in minors” such that the archdiocese might not contend that it lacked notice of their proclivities.
The summaries were turned over to retired Los Angeles Superior Court Judge Lester E. Olson, who reviewed the personnel files and made corrections to ensure the summaries were accurate and complete. The summaries were sealed and delivered last year to Judge Peter Lichtman, who was then overseeing the various suits.
The summaries involving the 26 priests who petitioned to block disclosure included descriptions of inappropriate behavior and statements that some of the priests underwent psychological treatment related to their sexual proclivities and other problems.
The writ petition was initially summarily denied by the Court of Appeal, but the California Supreme Court directed that it be heard on the merits, blocking any disclosure pending the Court of Appeal ruling.
Rubin agreed with the priests’ attorneys that the “strong policy favoring mediation as an alternative to litigation,” incorporated in Evidence Code Sec. 1122(a), forbids disclosure of the summaries.
Rubin rejected the plaintiffs’ contention that the proceedings were in the form of a mandatory settlement conference, to which the privilege does not apply. While there may be “conceptual difficulties in distinguishing between a mediation and a settlement conference when a bench officer is presiding at those talks,” the justice said, it was clear that in this case, “the parties were mediating.”
He cited an order by Lichtman denying as premature a motion for protective order by the priests, noting that the proffers were prepared “for purposes of mediation and settlement.” The justice added that the record was “replete with numerous other references to an ongoing mediation.”
Rubin noted, however, that the ruling prohibits release of the summaries, not of the underlying information contained in the summaries. “That information existed well before the mediation proceedings here, indeed well before the present litigation was commenced,” the jurist noted.
Attorneys on appeal were Donald H. Steier of Guzin & Steier for the priests, J. Michael Hennigan, Donald F. Woods Jr., and Jeffrey S. Koenig of Hennigan, Bennett & Dorman for the archdiocese, and Raymond P. Boucher, Patrick DeBlase and Anthony M. De Marco of Kiesel, Boucher & Larson for the plaintiffs.
The case is Doe 1 v. Superior Court (Roman Catholic Archbishop of Los Angeles), 05 S.O.S. 4383.
Copyright 2005, Metropolitan News Company