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I was age five when the bishop stood over me and said, "Stop babbling about what the priest did to you." Then, forty years later... I started babbling.
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Monday, February 8, 2010

Church objections to release of L.A. priest personnel files to be heard, one more time, in court Tues Feb 9, re Michael Baker

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Even after the judge rules on his motions, Donald Steier, attorney for pedophile priests, manages to get more hearings on the calendar. Tomorrow's defense motion concerns a current lawsuit filed against the L.A. Archdiocese re Fr. Michael Baker, but the arguments reflect the battle plaintiffs face in release of any perpetrator priest files to the public.

Plaintiff has to prove a “compelling public need to invade these most sensitive papers belonging to Doe 3,” who is Fr. Michael Baker, reads the "Defendant Doe 3’s Generic Brief in Opposition to Plaintiff’s Motion to Compel Production of his Personnel Records," filed January 26, 2010 by Steier. The doc is copy and pasted below and will be subject of a hearing in L.A. Superior Court before Judge Emilie Elias, at 9:00 AM tomorrow. CofA will be there if possible.)


DEFENDANT DOE 3’S GENERIC BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF HIS PERSONNEL RECORDS

Hearing Date: February 9, 2010
Time: 9:00 a.m.
Location: DEPT 324

MEMORANDUM OF POINTS AND AUTHORITIES

I. STATEMENT OF THE CASE

AND OVERVIEW OF APPLICABLE LAW

Doe 3 is a former employee of the Roman Catholic Archbishop of Los Angeles and has been accused in this action of committing childhood sexual abuse and other torts by the Plaintiff. Plaintiff is seeking to compel production of the confidential records contained in Doe 3’s private personnel records, which are in the custody of his former employer. With this brief, he will set forth the basic law that prohibits disclosure of the contents of his private files in light of the insufficient showing of compelling need offered by Plaintiff.

In California, the right of privacy is enshrined as an “inalienable right” in the state Constitution. Covered by that Constitutional right are the contents of personnel files, and the holder of that Constitutional privilege is the employee. There is a mandatory process for determining an assertion of the Constitutional privacy privilege; it is set forth in detail below.

Order he previously filed in this matter. That Motion resulted in an order requiring the parties to follow the discovery protocol previously ordered in this Coordinated Proceeding, including an individual document in camera review and determination of claims of privilege regarding the contents of Doe 3’s private personnel records.

MEMORANDUM OF POINTS AND AUTHORITIES

I. STATEMENT OF THE CASE

AND OVERVIEW OF APPLICABLE LAW

Doe 3 is a former employee of the Roman Catholic Archbishop of Los Angeles and has been accused in this action of committing childhood sexual abuse and other torts by the Plaintiff. Plaintiff is seeking to compel production of the confidential records contained in Doe 3’s private personnel records, which are in the custody of his former employer. With this brief, he will set forth the basic law that prohibits disclosure of the contents of his private files in light of the insufficient showing of compelling need offered by Plaintiff.

In California, the right of privacy is enshrined as an “inalienable right” in the state Constitution. Covered by that Constitutional right are the contents of personnel files, and the holder of that Constitutional privilege is the employee. There is a mandatory process for determining an assertion of the Constitutional privacy privilege; it is set forth in detail below.

Of course, Doe 3 was a priest, and his personnel files also contain records that touch upon his association with the Roman Catholic Church and his practice of his faith, since they are inextricably intertwined with his service as a priest. The religious relationship between a Roman Catholic priest and his bishop is uniquely broad and deep as required by two millennia of Catholic dogma, and the pervasiveness of that dogma – essential to the practice of Roman Catholicism – is evident in these records.

In this case, Doe 3’s private employee records comprise a typical “confidential file” held by the Archbishop regarding current and former employees, contain documents and correspondence relating to complaints of all kinds against a priest, such as failing to say Mass as a parishioner would like, as well as personal health and financial documents, personal wills, insurance papers, and documents clearly protected from disclosure by statutory privileges, such as the therapist-patient privilege. Where complaints are lodged about an employee that might constitute criminal or tortuous conduct on his part, records relating to them are protected by the attorney-client privilege.

In other contexts Plaintiff has often contended that privileges have been lost by “waiver,” but that contention does not survive critical analysis. It is true that privileges can be waived, but only by the person who holds the privilege. As regards Doe 3’s private documents, only he is the holder of the privilege, and he has never waived any of them. If sometimes the custodian of his records has failed to protect the records sufficiently, that cannot constitute a waiver by Doe 3.

To the contrary, Doe 3 has diligently objected to every effort to invade his private world, in this and all other cases.

II. THE CONSTITUTIONAL RIGHT OF PRIVACY
PROTECTS THE RECORDS FROM PRODUCTION

California Constitution, Article I, Section 1:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

This Constitutional privilege is an inalienable right, and is stronger than the right of privacy found in the United States Constitution. American Academy of Pediatrics v. Lungren [1997] 16 Cal.4th 307; Vinson v. Superior Court [1987] 43 Cal.3rd 833; Pettus v. Cole [1996] 49 Cal. App.4th 402.

Impairment of an interest of Constitutional dimension, such as the right of privacy, passes Constitutional muster only if it is necessary to achieve a compelling state interest. That means that the conflict between the competing values must be unavoidable, and that it does not arise from the choice of means to achieve the compelling state interest. Wood v. Superior Court [1985] 166 Cal. App.3rd 1138.

The ordinary discovery standard, permitting discovery of inadmissible or irrelevant matter that might lead to discovery of other, relevant evidence, does not apply to justify discovery of private information protected by the Constitution. Board of Trustees of Stanford University v. Superior Court [1981] 119 Cal. App.3rd 516; Garstang v. Superior Court [[1995] 39 Cal. App.4th 526; Bearman v. Superior Court [2004] 117 Cal. App.4th 463; Planned Parenthood Golden Gate v. Superior Court [2000] 83 Cal. App.4th 347; John B. v. Superior Court [2006] 38 Cal.4th 1177.

The more sensitive the nature of personal information that is sought to be discovered and the greater the effect that disclosure will have on the persons whose privacy is at risk, the more substantial the need for discovery that will be required to be demonstrated before disclosure is allowed. The general public interest in ascertainment of truth in litigation is not sufficiently compelling in all cases involving sensitive information. Hooser v. Superior Court [2000] 84 Cal. App.4th 997; Tien v. Superior Court [2006] 139 Cal. App.4th 528.

The demonstrated compelling public need must outweigh the privacy interest not only in the abstract, but when weighed against the particular privacy interests at issue, before disclosure may be ordered. Reynaud v. Superior Court [1982] 138 Cal. App.3rd. 1.
Many specific privacy interests that are covered by the Constitutional right have been identified by courts, including:

Personal information. Political affiliations, sexual history, medical history, financial affairs, other confidential personal information. Pettus v. Cole [1996] 49 Cal. App.4th 402.

Personnel files. San Diego Trolley, Inc. v. Superior Court [2001] 87 Cal. App.4th 1083; El Dorado Savings & Loan Association v. Superior Court [1987] 190 Cal. App.3rd 342; Board of Trustees of Stanford University v. Superior Court [1981] 119 Cal. App.3rd 516. The Constitutional Right of Privacy thus protects each and every page within the subject personnel files from discovery, absent “direct relevance,” a showing of a compelling public need that outweighs the privacy interest of the particular document, and a showing that there is no “less intrusive means” to discover the information.

Medical and psychological information. In re Lifschutz [1970] 2 Cal.3rd 415 (fact of psychotherapy itself is privileged); Susan S. v. Israels [1997] 55 Cal. App.4th 1290; Pettus v. Cole [1996] 49 Cal. App.4th 402; People v. Martinez [2001] 88 Cal. App.4th 465; Bearman v. Superior Court [2004] 117 Cal. Ap..4th 463

Financial information. Carmel-by-the-Sea v. Young [1970] 2 Cal.3rd 259; Doyle v. State Bar [1982] 32 Cal.3rd 12; Gordon v. Superior Court [1997] 55 Cal. App.4th 1546.

Crime victims. Penal Code § 11167.5 (a); People v. Jackson [2003] 110 Cal. App.4th 280; Scull v. Superior Court [1988] 206 Cal. App.3rd 784.

Third party rights. Vinson v. Superior Court [1987] 43 Cal.3rd 833; Scull v. Superior Court [1988] 206 Cal. App.3rd 784; Tien v. Superior Court [2006] 139 Cal. App.4th 528.

Peer review. Pomona College v. Superior Court [Corin] [1996] 45 Cal. App.4th 1716.

Religious practices. Britt v. Superior Court [1978] 20 Cal.3rd 844 (right of privacy implicit in First Amendment creates private area into which government may not enter); Snyder v. Evangelical Orthodox Church [1989] 216 Cal. App.3rd 297 (if state action burdens the free exercise of religion, the state interest must strictly scrutinized in weighing against the Constitutionally protected right); Presbyterian Church (U.S.A.) v. United States [1990] 752 Fed. Supp. 1505 (legal police activity that chills exercise of religious freedom may be prohibited).

Sexual history and activities. Sexual relations and sexual history are protected by the California Constitutional Right of Privacy. Hooser v. Superior Court [2000] 84 Cal. App.4th 997, 101 Cal. Rptr.2nd 341; Planned Parenthood Golden Gate v. Superior Court [2000] 83 Cal. App.4th 347, 99 Cal. Rptr.2nd 627.

Convenience for a party does not justify permitting discovery of Constitutionally-protected private information. Wood v. Superior Court, supra; Planned Parenthood Golden Gate v. Superior Court, supra; Fults v. Superior Court [1979] 88 Cal.App.3d 899, 152 Cal.Rptr. 210; Central Valley Chapter, 7th Step Foundation v. Younger [1976] 95 Cal.App.3d 212, 157 Cal.Rptr. 117.

If, after going through the Constitutionally-mandated process, the court finds that discovery of private information is justified, then the least intrusive means of invading the private information must be used. San Diego Trolley, Inc. v. Superior Court [2001] 87 Cal. App.4th 1083; Wood v. Superior Court, supra; Planned Parenthood Golden Gate v. Superior Court, supra.

To this point, Plaintiff has not made any factual showing, under oath, of any compelling public need to invade these most sensitive papers belonging to Doe 3. Therefore, Doe 3’s assertion of his inalienable Constitutional right of privacy must be upheld, and the motion to compel must be denied.

III. CONFIDENTIAL RECORDS RELATED TO

PSYCHOTHERAPY ARE PRIVILEGED

Certain documents containing communications to or from psychotherapists, all reasonably necessary to carry out the purpose of consulting a therapist, may be contained in the private files. Such information is protected by the Therapist Patient Privilege. Evidence Code § 1030, et seq.

Evidence Code § 1014 provides that “the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist. ”Further, as to patients who have died, the privilege survives them, and may be claimed by the personal representative of the patient.” [Evidence Code § 1013.]

This privilege is nearly absolute, not only in civil cases, but also in criminal cases. A handful of narrow exceptions exist [“litigant waiver” and “dangerous patient” to name two] but no exceptions apply in this case. Doe 3 has never placed his mental state in issue. The burden is on the party seeking disclosure to prove the existence of an exception to the privilege.
“The relatively high importance of protecting psychotherapeutic confidentiality can be seen in the fact that, unlike the physician-patient privilege, the psychotherapist-patient privilege is not subject to a good cause exception in personal injury actions.” City of Alhambra v. Superior Court [1980] 110 Cal. App. 3rd 513, 168 Cal. Rptr. 49.

Indeed, unlike other professional privileges, the mere fact that a person consulted with a psychotherapist is protected by the privilege.

“When a patient seeks out the counsel of a psychotherapist, he wants privacy and sanctuary from the world and its pressures. The patient desires in this place of safety an opportunity to be as open and candid as possible to enable the psychotherapist the maximum opportunity to help him with his problems. The patient’s purpose would be inhibited and frustrated if his psychotherapist could be compelled to give up his identity without his consent. Public knowledge of treatment by a psychotherapist reveals the existence and, in a general sense, the nature of the malady.” Smith v. Superior Court [1981] 118 Cal. App.3rd 136, 173 Cal. Rptr. 145; Scull v. Superior Court [1988] 206 Cal. App.3rd 284; 254 Cal. Rptr. 24.

“The names of Northwestern’s claimants are not discoverable because the disclosure of the names would reveal not only the identity of the claimants but also the nature of their ailments (‘psychiatric disability’).” Pollock v. Superior Court [2001] 93 Cal. App.4th 817, 113 Cal. Rptr.2nd 453. See also, Rosso, Johnson, Rosso & Ebersold v. Superior Court [1987] 191 Cal. App.3rd 1514, 237 Cal. Rptr. 2242.

On November 15, 2006 Judge Fromholz ruled on objections to production of psychotherapy records similar to those at issue here from Fr. Caffoe’s C file. Judge Fromholz sustained the psychotherapy patient privilege for identical documents.

IV. THE “CONFIDENTIALITY OF MEDICAL INFORMATION ACT”

PROHIBITS DISCLOSURE OF DOE 3’s MEDICAL RECORDS

California law permits limited disclosure to an employer of medical and psychological information relating to an employee, under conditions of confidentiality. Civil Code § 56.20 et seq. These provisions are known as the “California Confidentiality of Medical Information Act.” It is a crime for an employer to further disclose such confidential information without a written authorization. Defendant has not executed an authorization to permit disclosure to anyone beyond his employer for any such disclosure of such records.

Medical and mental health records are protected by the California Constitutional Right of Privacy, even if statutory claims of privilege have been waived. Cutter v. Brownbridge [1986] 183 Cal. App.3rd 836, 228 Cal. Rptr. 545; Division of Medical Quality v. Gherardini [1979] 93 Cal. App.3rd 669, 56 Cal. Rptr. 55; Pettus v. Cole [1996] 49 Cal. App.4th 402, 37 Cal. Rptr. 46 [stating privacy of information relating to psychotherapy is a “core value” protected by California Constitution Article I, Section 1; San Diego Trolley Co. v. Superior Court [2001] 87 Cal. App.4th 1083, 105 Cal. Rptr.2nd 476.

V. FEDERAL STATUTE PROTECTS INFORMATION
ABOUT TREATMENT AT A SUBSTANCE ABUSE TREATMENT CENTER

Controlling federal statute provides that no information identifying a patient or his treatment at a federally funded treatment center may be disclosed until after a court has made a determination that “good cause” exists for such disclosure. Such a hearing places the burden of proof and going forward on the party seeking disclosure, and involves a balancing process similar to that independently required by the California Constitutional Right of Privacy. 42 USC 290 [dd] [2].

VI. THE ATTORNEY-CLIENT PRIVILEGE PROTECTS

INFORMATION RELATED TO EMPLOYEE TORTS FROM DISCLOSURE

Evidence Code § 950 et seq., defines the near-inviolate Attorney Client Privilege. That statute and related sections 950 through 962, inclusive, provide that communications with an attorney licensed by any state or any nation may not be disclosed, and that the client holds the privilege. An attorney must defend the communications against disclosure “at every peril to himself.” Business and Professions Code § 6068.

In the context of a master-servant relationship involving a corporation or other business entity, an employee whose conduct risks incurring liability for his employer shares the employer’s Attorney Client Privilege relating to investigations of the potential or actual legal ramifications of that conduct. D. I. Chadbourne v. Superior Court [1964] 60 Cal.2nd 723, 36 Cal. Rptr. 468. The common scenario is one involving an insurance company’s investigation of the facts relating to a potential claim; the work of adjusters, investigators, attorneys, and the rest of the internal team conducting the investigation, and the statements of employees whose work includes responsibility for such investigations, are protected by the Attorney Client Privilege.

In this case, where an investigation was made into claims of misconduct allegedly committed by defendant Doe 3 arising in connection to his service as a priest, under the doctrine of Chadbourne, Defendant Doe 3 is a co-holder of the Attorney-Client Privilege, which he can assert independently of the Diocese. He has never waived that privilege, and continues to assert it.

VII. THE PRIEST-PENITENT PRIVILEGE

PROHIBITS DISCLOSURE OF COMMUNICATIONS
WITH A CLERGYMAN

Evidence Code § 1030 et seq. establishes the “Penitent’s Privilege.” It provides that a person holds a privilege to prevent disclosure of a “communication made in confidence, in the presence of no third person so far as the penitent is aware, to a [1] member of the clergy who, in the course of the discipline or practice of [2] the clergy member’s church, denomination, or organization, is authorized or accustomed to hear [3] those communications and, under the discipline or tenets of his church, denomination, or organization, has a duty to keep [4] those communications secret.”

Some of the items within Defendant Doe 3’s personnel records include statements that are protected by this privilege, and Defendant therefore asserts it.

VIII. DISCLOSURE OF CONFIDENTIAL DOCUMENTS

WILL INFRINGE ON DOE 3’s CONSTITUTIONAL RIGHT
TO FREE EXERCISE OF RELIGION

Some documents in Doe 3’s confidential personnel records relate to his practice of his religious faith and are intertwined with Roman Catholic religious dogma. They involve the internal workings of the Roman Catholic Church when confronted with the possibility that an ordained priest has a sexual problem, which is forbidden by Church law. Those proceedings entail an intimate process by which the Church, through the bishop and his surrogates, attempt to save the soul and profession of a priest who has been ordained as a representative of God on Earth. Communications involved in that process are foundational to the practice of the Roman Catholic religion and its clergy, and are entitled to remain private. To disclose such communications to a civil litigant will severely erode the necessary relationship between a Cardinal and his priests and violate the Free Exercise Clause of the First Amendment to the United States Constitution. It will chill the relationship between priests and their bishops, because the priests will become reluctant to bear their souls to the bishops if courts can invade those core documents.

For the Roman Catholic Church to be free to continue its practices, which have done immeasurable good for billions of people around the world for two millennia, its internal communications to confront and reform wayward priests must remain free from civil process and public disclosure. If priests are aware that what they say in private to their superiors about their shortcomings will become disclosed upon the request of anyone wielding a subpoena, many of them will choose not to confide in their superiors. That result will break the essential relationship of the Roman Catholic Church, and by so doing, it will violate the rights of the Church itself and the priests to practice their religion freely.

Doe 3 does not contend that any church has a protected license to practice illegal sexual contact with children, but that the Church and Doe 3 are in a unique relationship essential to the Roman Catholic Religion, and that the communications within that relationship are sacrosanct from civil process. Any other rule will excessively chill the practice of the Roman Catholic religion by its priests, and destroy the foundational relationship between a bishop and the priests under his responsibility.

In Presbyterian Church [U.S.A.] v. United States [1990] 752 Fed. Supp.1505, a church which had declared itself a sanctuary for illegal immigrants won the right to sue the government to enjoin a legal law enforcement investigation by the Immigration and Naturalization Service because the church’s First Amendment rights could be chilled by that lawful investigation. That principle applies directly to this case, because it is patently obvious that priests will become reluctant to practice the open relationship with their bishop as demanded by Roman Catholic dogma if private documents concerning that relationship are compelled to be disclosed.

At a minimum, the threshold of “strict scrutiny” must be applied to any documents concerning the priest-bishop relationship. Snyder v. Evangelical Orthodox Church [1989] 216 Cal. App.3rd 297. Plaintiff has fallen far short of carrying the burden to overcome that high bar.

The California Supreme Court applied analogous principles in White v. Davis [1975] 13 Cal.3rd 757, when it enjoined the Los Angeles Police Department from having undercover officers present in public places on college campuses to surveil students for the purpose of trying to ferret out evidence of criminal conspiracies by student activists.

IX. COMPELLED STATEMENTS ARE INVOLUNTARY

AND PROTECTED FROM DISCLOSURE BY THE FIFTH AMENDMENT

Any incriminating statements made by an employee under threat of discipline are involuntary, and inadmissible in evidence. “The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. Slochower v. Board of Education [1956] 350 U.S. 561, at 557-558. “The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.” Slochower, supra, 350 U.S. 561, at 641.

X. CONCLUSION

All of the documents in Doe 3’s confidential file are protected from disclosure by the Constitutional right of privacy. Before disclosure can be compelled, the Plaintiff is required to make a factual showing of a compelling public need, which he has failed to do. Even were Plaintiff to meet that high bar, it would be only the first step in a careful process of document by document in camera review.

The normal rule of discovery, that the court may order disclosure of inadmissible or irrelevant information if it may lead to relevant evidence, does not apply to private papers. Disclosure of such papers cannot be compelled unless they are admissible in the action.


In addition to Plaintiff’s wholesale failure to overcome the privacy privilege, specific statutory privileges protect most of the documents from disclosure, as a individual document review will demonstrate.

Plaintiff’s motion to compel production, on this record, must be denied.

January 26, 2010 Respectfully Submitted,
8
Donald H. Steier, Esq.
9 Attorney for Defendant DOE 3

Donald H. Steier [SBN 58391]
GUZIN & STEIER
4525 Wilshire Boulevard
Suite 201
Los Angeles, CA 90010
[323] 932-1600 / Fax [323] 932-1873
Attorney for Defendant DOE 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT

Coordinated Proceeding Special Title,
(Rule 1550(b))

THE CLERGY CASES I
___________________________________
LUIS C., an individual
Plaintiff,
v.
JOHN DOE 1, an individual; JOHN DOE 2, an individual; JOHN DOE 3, an individual; JOHN DOE 4, an entity form unknown; and DOES 5 THROUGH 1000, inclusive,
Defendants. Case No. JCCP 4286

[Honorable Emilie H. Elias, Coordination Trial Judge]
Case No. BC376766
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A lot of people seem to think I was part of the L.A. settlement in July 2007. I live in L.A. but my crimes took place in 1951-1953 Illinois. That state does not look like it will ever have a window and the IL State Supreme Court ruled last September that people over 40 pretty much cannot file for damages at all in that state. So, no, I did not get a settlement and I was not part of the L.A. Cases.

I just live here.

-ke

2 comments:

Anonymous said...

I am interested in the outcome of the motion to compel discussed above. What was the Court's decision?

city of angels lady said...

Me too. Too bad I've been muzzled, a lot of stories are going unfinished, and unreported as a result. ke