JOHN DOE, CLASS v. BOONE CIRCUIT COURT HON. JOHN W. POTTER, SPECIAL JUDGE BOONE CIRCUIT COURT AND ROMAN CATHOLIC DIOCESE OF COVINGTON, KENTUCKY, BISHOP ROGER J. FOYS, WILLIAM R. BURLEIGH, THOMAS D. LAMBROS, AND COMMONWEALTH OF KENTUCKY
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RENDERED:
OCTOBER 27, 2006; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-001873-OA
JOHN DOE, CLASS
PETITIONERS
ORIGINAL ACTION REGARDING
BOONE CIRCUIT COURT
ACTION NO. 03-CI-00181
v.
HON. JOHN W. POTTER, SPECIAL JUDGE
BOONE CIRCUIT COURT
RESPONDENT
AND
ROMAN CATHOLIC DIOCESE OF COVINGTON,
KENTUCKY, BISHOP ROGER J. FOYS,
WILLIAM R. BURLEIGH,
THOMAS D. LAMBROS, AND
COMMONWEALTH OF KENTUCKY
REAL PARTIES IN INTEREST
OPINION AND ORDER
DENYING IN PART AND GRANTING IN PART CR 76.36 RELIEF
** ** ** ** **
BEFORE: ABRAMSON AND HENRY, JUDGES; KNOPF,1 SENIOR JUDGE.
ABRAMSON, JUDGE:
Following the settlement of a class action
against the Roman Catholic Diocese of Covington in which an $84
million fund was established to compensate approximately 350
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
victims of child sexual abuse, Senior Judge John W. Potter
ordered the court-appointed Special Master overseeing claims
processing to provide detailed reports to the appropriate
Commonwealth Attorneys regarding the abusers, the abuse and the
victims.
Having concluded that the Respondent, Senior Judge
Potter, was acting within his jurisdiction and further that no
irreparable harm will result from the reporting of the names of
the living abusers and the details and scope of their abuse, we
deny the writ sought by Petitioners, the John Doe Class (the
“Class”), to the extent that it challenges the judge’s authority
to order such reports.
However, because wholesale disclosure of
the names and addresses of the victims could cause irreparable
harm to some members of the Class and such disclosures may
ultimately be unnecessary for protection of the public interest,
we grant the writ to the extent that the trial court’s order
requires victims’ names and contact information to be released
to prosecutors at the time of the reports.
We further find no
compelling public interest in the release of information
regarding deceased abusers and, therefore, grant relief as to
any reporting of the individual misconduct of deceased abusers.
RELEVANT BACKGROUND
This original action seeks to prohibit enforcement of
an order entered by Senior Judge Potter, directing the
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Settlement Master in class-action litigation to report to the
appropriate Commonwealth Attorneys comprehensive information
regarding criminal conduct which came to light in the course of
civil proceedings.
Plaintiffs in the underlying action brought
suit against the Roman Catholic Diocese of Covington, Kentucky
(“the Diocese”) and its Bishop for injuries they suffered after
being sexually abused as children by priests or other employees
of the Diocese.
Shortly after the filing of the complaint in
February 2003, the individual plaintiffs (who later became Class
representatives) and others who joined the litigation were
permitted to proceed anonymously through the use of pseudonyms.
No individual priests or other diocesan employees were named as
defendants.2
On October 21, 2003, Senior Judge Potter’s
predecessor entered an order certifying the litigation as a
class action.
Senior Judge Potter was assigned as Special Judge
and began presiding over the litigation on December 19, 2003.
In May 2005, the parties reached a settlement which
was submitted to the court for approval, along with a proposed
plan for publication of notice of the class action settlement
and a request to schedule a fairness hearing prior to final
approval.
In July 2005, the trial court preliminarily approved
the settlement and method of publication, along with a notice
which included the following statements regarding
2
The original complaint alleges specific instances of abuse but never names
the abusers, referring to each only as “Priest”.
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confidentiality: “The Court has ordered the parties to keep the
identity of Class Members confidential to the extent reasonably
possible.
Names of Class Members are not currently a matter of
public record.” (emphasis supplied).
The trial court entered an order on March 22, 2006,
which reflected the parties’ agreement concerning the manner in
which the settlement would be administered: “[The parties]
agreed that a single settlement master could be appointed who
would not only monitor the process but have complete control
over, and responsibility for, the conduct of the entire
settlement process and that this master would report directly to
the Court.”
In the same order, Senior Judge Potter appointed a
retired federal judge, Thomas Lambros, as Settlement Master and
required him to file written status reports every ninety days.
The trial court specifically retained jurisdiction “to supervise
and implement the settlement.”
The present controversy was precipitated by the entry
of a June 21, 2006, sua sponte order which required the
Settlement Master to report “every act of suspected abuse
against a victim who was minor at the time of the abuse of which
[the Settlement Master], or any person acting under his
direction, became aware as part of the settlement process.”
The
order specified that the report was to contain the nature and
extent of the abuse and the location in which it occurred; the
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name, address, and contact information for the suspected abuser;
the name, address and contact information for the abused person
(or his parents if the victim was still a minor); any
information concerning similar acts of abuse by the same abuser
or against the same victim regardless of where that abuse
occurred; and any other information which the Settlement Master
believed to be useful to a prosecuting authority in deciding
whether to prosecute a case or, if necessary, to protect the
abused person or others from further abuse.
The trial court
directed that the report “shall request that the information be
kept confidential except as necessary to investigate or
prosecute a crime or to protect persons from the suspected
abuser.”
Finally, Senior Judge Potter required the Settlement
Master to include in his periodic reports to the court summaries
of the abuse reports made to the authorities, reciting the
number of incidents reported, the number of abusers involved,
the type of abuse involved and the name of the Commonwealth
Attorney to whom each report was made.
After the Class moved the court to reconsider this
order which they contended would violate the confidentially
promised in the settlement agreement, the trial court conducted
a hearing in an attempt to determine what had been reported
regarding the incidents of abuse for which the $84 million
settlement fund had been established.
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Several facts of
particular relevance to this original action were established:
1) no suspected abusers were reported by the Diocese through its
reporting procedures as a result of this litigation;3 2) no
criminal prosecutions involving sexual abuse of minors by
priests or other diocesan personnel have occurred since the year
2000; 3) Class counsel could not identify the number of
suspected abusers involved in the civil litigation; 4) the class
census procedure had collected approximately 350 claims of child
sexual abuse ranging from inappropriate touching to repeated
instances of rape;
and 5) the names of Class members who had
sought counseling directly from the Diocese had already been
reported to authorities, but without any contact information.
After the hearing, the trial court amended the reporting order
to the extent that the name of the victim could be replaced by a
number where the abuser was deceased.
The trial court granted the Class’s request to stay
the effectiveness of the order until appellate relief could be
sought by way of an original action.
This Court then granted
emergency relief to preserve the status quo until oral argument
could be heard on the matters asserted in the Class’s petition.
This Court also concluded that the Commonwealth was an
appropriate real party in interest under CR 76.36(8) and gave
3
Some abusers had been reported previously and others have not been reported
and will not be until conclusion of the settlement process.
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the Attorney General an opportunity to file a response on behalf
of the Commonwealth and to participate in oral argument.
In its petition for relief, the Class argues that the
trial court was without jurisdiction to order reports to the
Commonwealth Attorneys.
In the alternative, the Class insists
that even if he possessed the requisite jurisdiction to order
the Settlement Master to make the reports, Senior Judge Potter
was acting erroneously within his jurisdiction and that the
Class members would suffer irreparable injury, with no adequate
remedy by appeal, if their identities were disclosed to
prosecutors.
The Class maintains inter alia that there is no
statutory or other legal basis for the reports and that the
reports place a “heavy economic burden” on the settlement fund
to the detriment of the Class.
Senior Judge Potter has filed responses positing that
the settlement process, even though administered through a
Special Master, remains a part of the court process and thus a
trial judge has the ability, if not the responsibility, to
report crimes uncovered as part of that process.
He also argues
that to deprive prosecutors of the information in a meaningful
form would impede effective decisions as to whether to prosecute
a particular abuser.
Without the information ordered divulged
in the Settlement Master’s reports, Senior Judge Potter asserts
there would be no further reporting of abusers if they had
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previously been the subject of reporting in whatever manner the
Diocese had selected.
He maintains that to withhold the
identities of the abuse victims from prosecutors serves to
further dilute the effectiveness of any self-reporting which has
been undertaken by the Diocese.
The Attorney General filed a response on behalf of the
Commonwealth and participated in the oral argument conducted on
October 11, 2006, suggesting that current reporting practices
provide adequate information to the local prosecutors without
divulging the additional personal information addressed in the
trial court’s order.
PETITIONERS HAVE ESTABLISHED ENTITLEMENT TO LIMITED RELIEF FROM
THE TRIAL COURT’S ORDER REQUIRING REPORTS TO COMMONWEALTH
ATTORNEYS
Before turning to the applicable law, it is important
to identify the scope of the relief sought by the Class.
Although the Class states at one point in the petition for
relief that the petition is directed solely to those portions of
the challenged order which require the release of victims’ names
and addresses, the bulk of the petition and counsel’s oral
argument were directed to the trial court’s authority to order
any reporting to Commonwealth Attorneys.
Consequently, the
Class’s request for relief is properly construed as directed at
the trial court’s order in its entirety.
-8-
In Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004),
the Kentucky Supreme Court prescribes the standard for granting
relief by way of original action.
A writ of prohibition may be granted upon a
showing that (1) the lower court is
proceeding or is about to proceed outside of
its jurisdiction and there is no remedy
through an application to an intermediate
court; or (2) that the lower court is acting
or is about to act erroneously, although
within its jurisdiction, and there exists no
adequate remedy by appeal or otherwise and
great injustice and irreparable injury will
result if the petition is not granted.
In the context of a petition for a writ of prohibition
under CR 76.36, jurisdiction connotes “subject matter
jurisdiction.”
Petrey v. Cain, 987 S.W.2d 786, 788 (Ky. 1999);
Preston v. Meigs, 464 S.W.2d 271, 275 (Ky. 1971).
There is no
question that the underlying action, John Doe v. Roman Catholic
Diocese of Covington, is within the subject matter jurisdiction
of the circuit court.
Moreover, the case remains active on the
Boone Circuit Court docket and the trial judge has expressly
retained jurisdiction to supervise and implement the settlement.
Senior Judge Potter clearly did not act outside his jurisdiction
in issuing the sua sponte order.
Having concluded that Senior Judge Potter was not
acting outside his jurisdiction, the next inquiry is whether he
acted within his jurisdiction but erroneously.
First, the John
Doe Class argues that the judge unilaterally, and thus
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improperly, modified the parties’ settlement agreement.
Although the Class maintains that this modification constitutes
“acting outside his jurisdiction”, their position is not
consistent with Kentucky law regarding the meaning of
“jurisdiction” in the context of a writ.
Unauthorized,
unilateral modification of a class action settlement by a trial
judge is more appropriately addressed as error.
As the Class
notes, the United States Supreme Court has construed Federal
Rule of Civil Procedure 23(e) as precluding judges from
“requir[ing] the parties to accept a settlement to which they
have not agreed.”
Evans v. Jeff D., 475 U.S. 717, 727 (1986).
Although Kentucky’s version of Rule 23 does not mirror the
federal rule, it is unnecessary to address the differences in
language because even if Kentucky courts were operating under
the identical strictures, the trial court did not modify the
settlement terms or rewrite the agreement reached by the
parties.
The challenged order did not change any of the rights
and obligations of the parties to the civil settlement, but
instead provided for the reporting of criminal conduct to
prosecutors.
The only provision of the parties’ settlement
process even implicated by the reports is the representation
that:
“The court has ordered the parties to keep the identity
of Class Members confidential to the extent reasonably possible.
Names of Class Members are not currently a matter of public
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record.”
(emphasis supplied).
Clearly, the settlement process
itself was not premised on absolute confidentiality.
While
representations regarding confidentiality “to the extent
possible” are certainly relevant to the irreparable injury
inquiry, they do not support a conclusion that the trial court
erred in ordering that criminal conduct be reported to
prosecutors.
The Class further maintains that Senior Judge Potter
erred because he had no statutory or other legal basis for
ordering reports to the Commonwealth Attorneys.
While KRS
620.030 mandates the reporting of the dependency, neglect or
abuse of a child, it has no application to reports regarding
adults who were abused as children.
Indeed, no Kentucky statute
requires the reporting of such past abuse, but the absence of a
reporting statute is not dispositive.
As counsel for the
Attorney General has noted, the inherent power of the court
certainly includes authority for reporting to prosecutors widescale criminal conduct which has formed the basis for a multimillion dollar class action recovery.
Significantly, the
specific type of criminal conduct at issue here, sexual abuse,
is the only felony conduct which has prompted the Kentucky
General Assembly to pass legislation (1) requiring convicted
offenders to register with local probation and parole offices
(for ten years or life depending on the severity of the crime)
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and (2) limiting where convicted offenders can reside.
See KRS
17.500 et seq. (“The Sex Offender Registration Act”); KRS 17.495
(prohibiting registered sex offenders from living near schools,
playgrounds and daycare facilities).
Given the public interest
in identifying, registering and limiting the residence options
of sexual offenders (particularly those who abuse children), it
defies reason that a circuit judge would have no authority to
report such conduct to prosecutors.
Alternatively, the Class maintains that the Diocese’s
reporting is adequate.
The record contains 15 letters from
local counsel for the Diocese referencing abuse of 31 victims
identified only by numbers.
In all of these letters (written
between October 2002 and December 2003), the abuse is described
generically as “sexual abuse,” with a few references to
fondling, groping or similar activities.
The cursory letters
contain none of the information regarding the type and magnitude
of abuse associated with each individual abuser which would come
from the court-ordered reports.4
Would post-settlement reports
from the Diocese contain the type of detailed information which
justifies civil damage settlements and would prompt prosecution?
The trial court had no way of knowing the answer to that
question.
However, without his order, the Diocese, the primary
4
There are no reports of rape and sodomy, conduct which qualifies for Abuse
Category 4 under the settlement, a category which Senior Judge Potter
“assumed . . . the parties created . . . because they believed some class
members will fall into it.”
-12-
defendant in the underlying action, would be self-reporting in
accordance with its own protocol without any oversight by any
outside party.
If employees of a private school, YMCA day camp
or community center had sexually abused hundreds of children, no
one would suggest that the institution itself simply selfreport.
The Catholic Church, like other religious bodies,
occupies a unique and cherished position in our society, but it
is not entitled to any special deference in the reporting of
criminal conduct.
In sum, the trial court did not err in
ultimately concluding that detailed reports of repeated
incidents of sexual abuse by priests and other employees of the
Diocese should be made by the Settlement Master and not left to
the Diocese itself.
Moreover, the fact that Commonwealth Attorneys (none
of whom currently have the comprehensive information the courtordered reports would provide) have not yet, but could
eventually, subpoena the information is really irrelevant.
This
original action is not about possible avenues of access to the
information accumulated in the underlying civil action, but
rather it is about a trial judge’s authority to order the
reporting of criminal conduct.
The Class also maintains that Senior Judge Potter has
breached a fiduciary duty to the Class and violated their
respective individual rights of privacy.
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The fiduciary duty
contention is based on a federal class action wherein the Eighth
Circuit Court of Appeals held that a trial judge “acts as a
fiduciary who must serve as a guardian of the rights of absent
class members.”
In re Wireless Telephone Federal Cost Recovery
Fees Litigation, 396 F.3d 922, 932 (8th Cir. 2005).
The present
controversy does not involve protection of the rights of absent
Class members and this Court finds no legal basis for holding
that Senior Judge Potter has breached any duty he may have had
to Class members.
As for the individual Class members’ constitutional
right to privacy, this Court need not consider the full
parameters of that right because, to the extent Class members
have invoked the civil process of Kentucky courts to secure
monetary relief, they appear to have waived any right to
preclude the court from reporting to prosecutors the crimes
against the Commonwealth which formed the basis of their civil
recovery.
Reporting of the underlying criminal conduct,
however, does not necessarily extend to the wholesale reporting
of victims’ names and addresses and, on that point we find that
the trial court erred.
While Class counsel has repeatedly questioned the
judge’s motive in entering the reporting order, it is patently
obvious that it was designed to serve the compelling public
interest in assuring that child sexual abuse is fully reported
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to prosecuting authorities.
Thus, the trial court’s order must
be viewed in the context of the important public interest it was
designed to serve.
As Class counsel notes, it is possible that even when
armed with detailed information regarding an individual abuser’s
criminal conduct a prosecutor, in the exercise of his or her
discretion, may decline to prosecute. The prosecutor may
determine that the abuser is not mentally competent to stand
trial or that the particulars of the case render successful
prosecution unlikely.
In those cases where the prosecutor does
decide to proceed, there may be numerous victims who are willing
to be identified and to meet with the appropriate Commonwealth
Attorney.
Many individuals who were abused by priests as
children have stepped forward in this state and across the
country to assist prosecutors in securing convictions of the
abusers and in preventing the abusers’ access to future child
victims.
Undoubtedly some members of the John Doe Class will do
likewise, rendering it unnecessary for every single victim to be
identified.
Given these circumstances and credible evidence
that some (but certainly not all) Class members may be
irreparably harmed by disclosure of their names to prosecutors,
we grant relief to the extent that the reporting order requires
immediate disclosure of all victims’ names and contact
information.
Whether this information should be produced to a
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Commonwealth Attorney who deems it crucial to a planned
prosecution, over the objections of the individual whose name is
sought, is an issue which may never arise but, if so, it must be
addressed when ripe for consideration.
Finally, because
information regarding the individual conduct of deceased abusers
cannot serve the compelling public interest in the reporting and
prosecution of child sexual abuse, we agree with Class members
that the trial court erred in ordering the reporting of any
information pertaining to deceased priests or employees of the
Diocese.
In closing, we note that the Class members predicated
their request for relief in part on the cost of the required
reporting, a position which was not fully developed and which we
view with some skepticism given the $84 million fund created by
the Diocese and its insurance carrier. Obviously the reports
will require some time to prepare but the information required
by the trial court’s order is all readily available to the
Settlement Master and his staff as a result of the claims
process.
In essence, the reporting order requires an executive
summary of the credible incidents of abuse established as to
each abuser.
Because it requires information regarding all of
an individual abuser’s acts, a reasonable construction of the
order would allow the Settlement Master to render one
comprehensive report on each abuser to all affected
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jurisdictions at the conclusion of processing of all claims
against that specific individual.
This reasonable construction
of the order avoids piecemeal reports and unnecessary expense.
ORDER
IT IS HEREBY ORDERED that the Petition for Relief
Under CR 76.36 and CR 81 shall be granted to the extent that the
Settlement Master shall not be required to report the names and
addresses of victims at this time, nor shall he be required to
report the incidents of abuse perpetrated by priests or Diocese
employees who are now deceased.
In all other respects, the
trial court’s order shall remain in full force and effect.
HENRY, JUDGE CONCURS.
KNOPF, SENIOR JUDGE, CONCURS AND FILES SEPARATE
OPINION.
/s/ Lisabeth Hughes Abramson
JUDGE, COURT OF APPEALS
ENTERED:_October 27, 2006
KNOPF, SENIOR JUDGE, CONCURRING:
While I fully concur
in the result and reasoning in our ruling on the writ, I write
separately to emphasize my belief that the very serious public
interest issues articulated in our opinion have been occasioned
solely by the fact that this litigation was improperly allowed
to proceed anonymously from the outset.
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Although Class counsel
cites caselaw from other jurisdictions purporting to establish a
right to proceed by use of pseudonyms, the majority of the cited
foreign cases, many of which refused to allow the use of
pseudonyms, are distinguishable.
I find no Kentucky authority
by statute, rule or caselaw, supporting the proposition that
litigants may proceed anonymously in this type of case.
To be sure, there are certain peculiarly private
individual matters in which parties have been allowed to proceed
anonymously.
However, those cases are based almost exclusively
upon the existence of factors which substantially outweigh the
“customary and constitutionally-embedded presumption of openness
in judicial proceedings.”5
Cases which have been found to meet
that criterion include challenges to legislation such as the
abortion statutes, litigation to compel one’s insurance company
to pay for particularly private procedures, and cases involving
purely legal issues in which there is an atypically weak public
interest in knowing the identities of the litigants.
It is
clear to me that the heinous and criminal nature of the conduct
alleged in this litigation, as well as the positions of trust
occupied by the alleged abusers, overwhelmingly tips the balance
in favor of public disclosure.
As we have painstakingly outlined, this litigation is
predicated upon allegations of sexual misconduct against more
5
Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992), citing Doe v. Stegall, 653
F.2d 180 (5th Cir. 1981).
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than 300 children by Catholic priests and further misconduct by
the priests’ superiors which allowed the priests’ misconduct to
continue.
I can conceive of no scenario involving greater
public interest and concern, not only in terms of discerning the
factual accuracy of the allegations but in protecting potential
victims from future abuse.
Although the Class claims a right to anonymity based
upon the embarrassing nature of the crimes perpetrated against
them, potential for embarrassment standing alone cannot justify
anonymity.
For example, many victims of workplace sexual
harassment are exposed to embarrassment, ridicule and even
discrimination in their employment if they choose to seek
redress through litigation.
I am thus convinced that the
concerns of a few of the individual Class members in this
litigation, while significant, do not outweigh the obvious and
imperative need for openness in this type of case.
Individuals
utilizing the courts of this Commonwealth to level charges of
this nature should be prepared to stand behind those charges
publicly.
If this litigation had not proceeded in secret,
Senior Judge Potter would not have found it necessary to
initiate a procedure for bringing to light criminal acts which
have so far escaped public scrutiny.
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MOTION FOR PETITIONERS:
RESPONSE FOR RESPONDENT JUDGE:
Stanley M. Chesley
Robert A. Steinberg
Waite, Schneider, Bayless &
Chesley Co., L.P.A.
Cincinnati, Ohio
Senior Judge John W. Potter
Special Judge
Boone Circuit Court
Michael J. O’Hara
O’Hara, Ruberg, Taylor, Sloan
& Sergent
Covington, Kentucky
C. Alex Rose
Weber & Rose, P.S.C.
Louisville, Kentucky
ORAL ARGUMENT:
Robert A. Steinberg
Cincinnati, Ohio
RESPONSE FOR THE COMMONWEALTH
AS REAL PARTY IN INTEREST:
Gregory D. Stumbo
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT:
Ken W. Riggs
Frankfort, Kentucky
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