ROMAN CATHOLIC DIOCESE OF LEXINGTON v. HON. MARY C. NOBLE, JUDGE, FAYETTE CIRCUIT COURT
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RENDERED: AUGUST 9, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-001563-OA
ROMAN CATHOLIC DIOCESE OF LEXINGTON
v.
PETITIONER
ORIGINAL ACTION
REGARDING FAYETTE CIRCUIT COURT
HON. MARY C. NOBLE,
JUDGE, FAYETTE CIRCUIT COURT
RESPONDENT
* * * * * * * * *
OPINION AND ORDER
DENYING PETITION UNDER CR 76.36
BEFORE:
EMBERTON, CHIEF JUDGE; COMBS AND KNOPF, JUDGES.
EMBERTON, CHIEF JUDGE:
This original action practiced under CR
76.36 concerns press and public access to a pleading in a civil
action alleging that the petitioner, the defendant below, failed
to properly respond to incidents of sexual abuse by clergymen of
the diocese.
It is alleged that the diocese’s failure to control
its clergy allowed such abuse to continue resulting in the abuse
inflicted on the circuit court plaintiffs while they were minors
and were in positions of trust in relation to the abusers and to
the diocese.
At issue here are portions of an amended complaint
filed by the plaintiffs alleging various specific instances of
misconduct committed by named clergymen other than those who are
alleged to have victimized the plaintiffs themselves.
Some
instances do not involve child sexual abuse or any actual
criminal behavior but rather involve violations of sexual morals
unacceptable to the church or violations of celibacy required of
Catholic priests.
By order entered July 23, 2002, the trial court ordered
certain paragraphs of the amended complaint to be stricken
pursuant to CR (Kentucky Rules of Civil Procedure) 12.06 upon the
trial court’s finding that the allegations contained in the
ruling were immaterial to the claims of the five plaintiffs.
The
trial court also stated that the allegations could be said to be
impertinent and scandalous if untrue, but it declined to inquire
into the veracity of claims found to be immaterial to the
litigation before it.
The trial court’s action in striking
portions of the amended complaint is not on review at this time.
Plaintiffs could still challenge that decision on any appeal of a
final judgment.
When the trial court entered its order of July 23
striking material from the amended complaint, it was still
considering whether the record should be sealed from public view
pursuant to KRS 413.249.
The petitioner separately requested
that the material stricken from the amended complaint be expunged
from the record or sealed from public view even if the remainder
of the record were opened.
The trial court ruled that the
stricken material would remain in the record and declined to seal
the stricken material from public view.
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The petitioner filed this original action seeking to
prevent public disclosure of the stricken paragraphs of the
amended complaint.
It initially appeared that the petitioner was
also seeking to prevent the opening of the entire record under a
ruling expected from the circuit judge that KRS 413.249 was
either inapplicable to an action against the petitioner or was
unconstitutional.
By supplemental pleading, the petitioner has
clarified that it is seeking to keep sealed only the material
stricken from the amended complaint by the trial court.
This Court is informed that the trial court has since
ruled that KRS 413.249(3) is unconstitutional and cannot be used
as authority to seal the circuit court record.
The petitioner
has not challenged that ruling, and we do not, therefore, find it
necessary to address the constitutionality of the statute in this
original action.
Likewise, we do not need to decide the meaning of the
word “stricken” in all contexts.
To strike something from the
record may mean quite different things depending upon whether a
court is striking a portion of a pleading, striking an entire
pleading, striking an improper remark made before a jury or
striking the witness testimony found to be improper.
However, we do need to decide what the word “stricken”
means in this context.
The trial court stated the following:
There is no authority offered for sealing or
removing pleadings or portions thereof that
have been stricken. CR 12.06 merely states
that on sufficient grounds the Court may
order portions of a pleading be stricken. It
does not say what “stricken” means, or how it
is physically done.
....
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In the Court’s experience, the most common
approach is to leave the document containing
the stricken portion in the record, but to
give them no legal effect.
In some cases when documents are ordered stricken from
the record and it would appear that no party would have any
further use for the documents, they might be removed or expunged
from the record without detriment to the litigation process.
However, where, as in this litigation, it appears that a party
may wish to make an issue of the ruling striking the material,
the material must remain in the record as the trial court
correctly decided.
We further agree with the trial court that
the essential result of striking material in this context is that
the stricken material is given “no legal effect.”
This leads to the principal issue of this original
action which is whether those documents which have been stricken
and given no legal effect but which have been retained in the
record should be open to public view.
We do not find it necessary to detail the allegations
stricken by the trial court.
It is sufficient to say that they
provide details of alleged sexual misconduct by priests of the
petitioner diocese and allege that the diocese has failed to take
proper or timely corrective action.
The details of the stricken
allegations are disturbing and distressing.
However, they are no
more so than the alleged victimization of the plaintiffs
themselves.
The United States Supreme Court has emphasized the
right of public access to judicial proceedings in stating:
“[i]t
is clear that the courts of this country recognized a general
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right to inspect and copy public records and documents including
judicial records and documents.”
Footnotes omitted.
Nixon v.
Warner Communications, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306,
1312, 55 L. Ed. 2d 570 (1978).
The importance of right of access
to court documents and the critical role exercised by the news
media in the process of information collection and dissemination
is discussed in the Courier-Journal and Louisville Times Company
v. Peers, Ky., 747 S.W.2d 125 (1988).
It has also been
recognized that “[S]uch right is not absolute and is limited by
the condition that a prior restraint on news gathering must be
‘necessitated by compelling governmental interest’ and must be
‘narrowly tailored to serve that interest’”.
Cape Publications,
Inc. v. Braden, Ky., 39 S.W.3d 823, 826 (2001).
From our examination of the extensive pleadings before
this Court, we are unable to find a compelling public interest
that would justify the trial court’s exercising its discretion to
seal the stricken materials from public view.
We are compelled
to recognize that this is not simply a dispute between individual
private parties.
The plaintiffs in this case are alleging
misconduct on the part of a large and significant institution of
society.
The public has a right to know what is being alleged
and how the courts are conducting the litigation.
In its Nixon
opinion, the Supreme Court recognized exceptions to the right of
inspection when that right would merely gratify private spite or
serve to convert the court record into a reservoir of libelous
statements.
However, in this instance, the petitioner is an
entity active in public life with the resources and experience to
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protect itself from a libel.
Additionally, the civil rules governing litigation
provide ample remedies for improper pleadings.
In this case,
petitioner’s motion has resulted in the striking of the pleadings
as immaterial to the litigation.
We cannot accept the
proposition that the remedy imposed by the trial court is
meaningless to the media or to the public.
Additionally, we note
that the petitioner’s memorandum supporting its motion to strike
alleged that the offending paragraphs contained factual
inaccuracies.
Petitioner has the option of seeking sanctions
under CR 11 for any untruthful allegations made in bad faith.
Based on the discussion, we find that the circuit court
would have abused its discretion had it ordered the stricken
material sealed.
Accordingly, the Court ORDERS that the petition for
relief under CR 76.36 be, and it is hereby, DENIED.
The order
entered by a member of this Court on July 24, 2002 is hereby
DISSOLVED.
However, in order to preserve the petitioner’s
opportunity to pursue a matter-of-right appeal to the Kentucky
Supreme Court, the Court ORDERS that the enforcement of this
order shall be STAYED for a period of seven (7) days from the
date of the entry to allow the parties to seek intermediate
relief in the Supreme Court to the extent that the material
stricken by the trial court shall be kept sealed by that Court.
The petitioner has limited the relief sought to the material
stricken, and so only that material is to remain sealed.
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The
remainder of the circuit court record shall be subject to public
access as ordered by the circuit court.
The Court of Appeals record of this original action
contains references to the stricken material that remains sealed.
Therefore, the Court ORDERS that the pleadings in the record of
this original action shall REMAIN SEALED for seven (7) days from
the date of this order and will thereafter be subject to whatever
order is entered by the Supreme Court.
If intermediate relief is
not granted by the Supreme Court, the record in this original
action shall be subject to public access after the seven-day
period has expired.
COMBS, JUDGE, CONCURS AND FURNISHES A SEPARATE OPINION.
KNOPF, JUDGE, DISSENTS AND FURNISHES A SEPARATE
OPINION.
ENTERED:
_August 9, 2002___
_/s/ Thomas Emberton________
CHIEF JUDGE, COURT OF APPEALS
COMBS, JUDGE CONCURRING:
The procedural posture of
this case and the unique public policy context in which it has
arisen both dictate the outcome announced in Chief Judge
Emberton’s opinion denying the petition and ordering the
unsealing of the entire amended complaint.
I concur with that
opinion in full.
The original complaint, purporting to be a class
action, was filed anonymously as to the five plaintiffs, naming
them only as four “John Does” and one “Jane Doe.”
The stricken
material at issue in this petition was not a part of that
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In granting the motion of the dioceses1 to compel a
complaint.
more definite statement, the trial court ordered, inter alia,
that an amended complaint be filed revealing the names of the
plaintiffs, the identity of the offending priests, and the
details and circumstances pertaining to each allegation.
The
order also struck from the original complaint the amount recited
as unliquidated damages.
That damages item has not been the
subject of these efforts to strike portions of the first amended
complaint -- nor has stricken been argued to be tantamount to
expunged as to the original complaint.
The first amended complaint was accordingly filed.
Not
only did it provide the items ordered to be revealed, but it set
forth several paragraphs (numbered 43-65) briefly detailing
incidents of other acts allegedly perpetrated by priests subject
to the supervision and control of the defendant dioceses.
The
apparent justification for inclusion of this material was to
establish the plaintiffs’ theory of a pattern or practice of the
failure of the dioceses to inform parishioners of the presence
and activity of predatory priests.
The conduct of three of the
four priests involved was already a matter of public record by
way of previous litigation or police record.
There has been no allegation that inclusion of these
materials constituted a bad-faith claim under CR2 11.
1
On the
The circuit court action was filed against both the Diocese
of Lexington and the Diocese of Covington. Only the Diocese of
Lexington has filed this original action.
2
Kentucky Rules of Civil Procedure.
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contrary, there is no reason to believe that they were filed for
any reason other than to comply fully with the trial judge’s
order for a more definite statement of exactly what allegations
the dioceses should expect to defend.
Potentially, if
establishing a “pattern or practice” of misconduct should develop
during discovery or at trial, these paragraphs would be capable
of being characterized as relevant and necessary to the
plaintiffs’ theory of their case.
Thus, they cannot legitimately
be labelled as “frivolous.”
At present, the trial court has ruled that they are
irrelevant to the claims alleged with respect to the five named
plaintiffs.
In ordering the paragraphs stricken, the trial court
did not order that they be expunged or removed from the record.
Under our strict standard of review of abuse of discretion, I
perceive no abuse or misunderstanding by the trial court of
either the nature of the order or the meaning of stricken.
Clearly in this context, it meant “removed from the pleadings” as
they are to be employed in the course of litigation without being
removed from the record itself.
As correctly noted both in the Opinion and Order of
this court and in the Dissenting Opinion, “Every court has
supervisory power over its own records and files.”
Nixon v.
Warner Communications, Inc., 435 U.S. 589, 55 L.Ed.2d 570, 580,
98 S.Ct. 1306 (1978).
The trial court correctly exercised that
supervisory power, and we find no abuse of discretion in the
order unsealing the entire record, including the portions
stricken for trial purposes but still a part of the court record
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as originally filed in good faith and maintained by the court in
the case of an appeal at the conclusion of the trial.
The diocese argues, and the Dissenting Opinion notes
with approval, the concern voiced in Nixon, supra at 580, that
abuse of court records could potentially convert them into
“reservoirs of libelous statements for press consumption.”
Such
is not the case with respect to the materials at issue here.
Three of the four incidents are already in the public domain by
virtue of court and police records.
As to the fourth priest,
there has been no charge that the matters alleged as to his
conduct are false or defamatory.
The Nixon admonition is simply
not relevant to the paragraphs at issue.
In addition to our standard of review of abuse of
discretion, we must be ever mindful of the legal presumption of
free access by the press to court records and the concomitant
right of access by the public.
The Opinion and Order of Chief
Judge Emberton has ably and thoroughly discussed that presumption
and has correctly found it to be paramount in this case.
We can never adjudicate a case properly in an academic
vacuum.
The particulary disturbing and painful context of this
case is an even more compelling basis for us to defer to the
presumption of press and public access.
The serious allegations
involving breach of sacred, fiduciary duties both shock the
conscience and sicken the spirit of society at large.
The cloak
of secrecy alleged to have shielded this reprehensible conduct
from disclosure cannot be maintained, and this court has
correctly ruled that it be removed in this case by denying the
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petition and affirming the order of the trial court to unseal
this record in its entirety.
KNOPF, JUDGE, DISSENTING:
The right of full public
access to court records and proceedings is a right characteristic
of open societies and one of which Kentuckians should be both
proud and protective.3
It is not an absolute right, of course,
no right is, but it is vitally important.
It is deeply rooted in
the public’s common-law right to be informed about the
administration of justice.4
“It helps safeguard the integrity,
quality, and respect in our judicial system and permits the
public to keep a watchful eye on the workings of public
agencies.”5
In accordance with this important right, I whole-
heartedly concur in the order announced at the end of the
majority’s opinion to unseal for public scrutiny everything in
the record of this case that has been legally and properly
submitted to the trial court.
I am compelled to dissent, however, from my colleagues’
decision to tolerate the release of immaterial allegations the
trial court has stricken from the pleadings and which thus are
not part of the record.
I too am sickened and saddened by recent
allegations of abuse by certain priests.
However, I am convinced
that the public’s right of access is not truly implicated, much
3
Courier-Journal v. Peers, Ky., 747 S.W.2d 125 (1988).
4
Nixon v. Warner Communications, Inc., 435 U.S. 589, 55 L.
Ed. 2d 570, 98 S. Ct. 1306 (1978).
5
Picard Chemical Inc. Profit Sharing Plan v. Perrigo
Company, 951 F. Supp. 679, 690 (WD Mich. 1996). (citations and
internal quotation marks omitted).
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less compromised, by the exclusion of matters that are no true
part of the plaintiffs’ claims and should never have been
included among them.
The point is not secrecy.
Nothing prevents
the plaintiffs or their counsel from disseminating any true
information they want about the diocese and its priests.
If they
wish, they can direct others to information already in the public
record.
What I object to is the improper use of the trial
court’s record for this purpose.
The majority’s doctrinaire
invocation of the right of access in this case permits that
impropriety and thus diminishes an equally important right: the
court’s right to prevent misuse of its processes.
Out of an
understandable but exaggerated concern that the public will
misperceive the Law’s reason for denying access to the stricken
material--irrelevancy, not secrecy--both the trial court and now
this Court have abdicated their responsibility to insist upon
proper pleadings and have failed to protect innocent third
parties who are not priests and are strangers to this litigation,
but who will suffer because of our lapse.
As observed by the United States Supreme Court in Nixon
v. Warner Communications, Inc.,6
“Every court has supervisory
power over its own records and files.”7
This power enables the
court
to insure that its records are not used to
gratify private spite or promote public
scandal. . . . [And to] refuse[] to permit
[its] files to serve as reservoirs of
6
supra.
7
Id. at 598, 580.
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libelous statements for press consumption.8
The court’s power to protect itself from such misuse is
partially embodied in Kentucky in Civil Rule (CR) 12.06.
That
rule authorizes the court, upon motion of a party or upon its own
motion, to “order stricken from any pleading any insufficient
defense or any sham, redundant, immaterial, impertinent or
scandalous matter.”
The Civil Rules do not contain a definition
of “strike,” but the word’s plain meaning in this context is “to
eliminate or expunge.”9
“Stricken from any pleading” means just
that--eliminated, expunged, from the matters that may properly
bear upon the court’s decisions.
If the judge finds grounds to
strike something, he or she has no discretion.
material should be expunged.
The stricken
The stricken material could, of
course, be preserved for appeal if need be by placing it in a
sealed envelope, but otherwise it should be physically as well as
legally removed from the file.
The Fayette Circuit Court did not give proper effect to
CR 12.06.
The trial court determined that several paragraphs in
the plaintiffs’ amended complaint should be stricken.
It found
that those paragraphs contained allegations that are utterly
immaterial to the plaintiffs’ cause of action, which is based on
abuse alleged to have occurred decades ago.
Accordingly, the
trial court properly ordered those immaterial paragraphs stricken
from the complaint and announced that it would give them no
8
Id.
9
The American Heritage Dictionary of the English Language,
Third Edition, 1779 (1992).
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consideration.
When the diocese moved to have the stricken
paragraphs physically removed from the record, however, so that
there could be no public access to them, the trial court denied
the motion.
It, like the majority, was persuaded that “stricken”
as used in the rule does not mean stricken, but something more
like ignored.
The “stricken” material would be disregarded, the
trial court ruled, but it would remain physically in the record
and would be subject to the public’s right of access.
The
diocese thereupon sought a writ in this Court compelling the
trial court to remove the stricken material from its file.
The issue before us is thus a narrow one.
We are not
concerned with the merits of the order to strike, with whether
the stricken allegations were made in good faith, or with whether
these allegations may be deemed material in the future.
We are
concerned solely with whether the right to public access applies
to materials duly stricken from the pleadings.
The majority
opinion says that the public has a right of access to such
material--at least if the stricken material pertains (as the
majority describes) to a “large and significant institution of
society . . . with the resources and experience to protect itself
from a libel.”
Would the majority conclude differently if the
parties were different?
We need not involve ourselves in such a
double standard; the Civil Rules should apply equally to all.
I
am persuaded that the right of access does not apply in this
situation, regardless of the parties.
On the contrary, the right of public access only
extends “to those materials which properly come before the court
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in the course of an adjudicatory proceeding and which are
relevant to that adjudication.”10
It extends “to materials on
which a court relies in determining the litigants’ substantive
rights.”11
It does not extend to materials “which play no role
in the adjudication process.”12
By definition, materials
stricken, expunged, from the pleadings have not “properly come
before the court,” and they “play no role in the adjudication
process.”
to them.
The right of public access, therefore, does not attach
The trial court clearly erred when it ruled otherwise,
when it failed to give effect to the plain language of CR 12.06.
The trial court should have physically removed the stricken
paragraphs from its files and should not have permitted itself to
be used as a conduit for immaterial allegations the airing of
which is sure to cause harm to innocent people, not parties to
this litigation.
The diocese is entitled to a writ; I respectfully
dissent from the decision to deny it.
10
In re Providence Journal Company, Inc., 293 F.3d 1, 9 (1st
Cir. 2002) (citations and internal quotation marks omitted).
11
Federal Trade Commission v. Standard Financial Management
Corporation, 830 F.2d 404, 408 (1st Cir. 1987).
12
Id. See also United States v. Amodeo, 44 F.3d 141 (2nd
Cir. 1995); Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3rd
Cir. 1994); Smith v. United States District Court Officers, 203
F.3d 440 (7th Cir. 2000).
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PETITION FOR ROMAN CATHOLIC
DIOCESE OF LEXINGTON:
RESPONSE FOR JUDGE MARY C.
NOBLE:
John M. Famularo
Daniel E. Danford
Lexington, Kentucky
Mary C. Noble
Lexington, Kentucky
RESPONSE FOR CIRCUIT COURT
PLAINTIFFS:
ORAL ARGUMENT FOR ROMAN
CATHOLIC DIOCESE OF LEXINGTON:
Robert Treadway
Lexington, Kentucky
John M. Famularo
Lexington, Kentucky
RESPONSE FOR LEXINGTON HERALDLEADER CO.:
Robert F. Houlihan, Jr.
Lizbeth Ann Tully
Hanly A. Ingram
Lexington, Kentucky
RESPONSE FOR CAPE
PUBLICATIONS, INC. d/b/a THE
COURIER-JOURNAL:
Jon L. Fleischaker
Kimberly K. Greene
R. Kenyon Meyer
Ashley C. Pack
Louisville, Kentucky
ORAL ARGUMENT FOR CIRCUIT
COURT PLAINTIFFS:
Robert Treadway
Lexington, Kentucky
ORAL ARGUMENT FOR LEXINGTON
HERALD-LEADER CO.:
Robert Houlihan, Jr.
Lexington, Kentucky
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