Thomas Reuters News & Insight
Bankruptcy Law
14 October 2011
Oct. 14 (Westlaw Journals) – Two priests associated with a bankrupt Oregon archdiocese have convinced a federal appeals panel that their names should be redacted from court documents related to alleged sexual abuse of children.
In re Roman Catholic Archbishop of Portland in Oregon; Father M et al. v. Various Tort Claimants, No. 10-35206, 2011 WL 4375678 (9th Cir. Sept. 21, 2011).
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled the Bankruptcy Code’s ban against the release of “scandalous” material trumps the public’s common-law right to access court documents.
The panel reversed two lower courts’ decisions to the contrary.
It further held that one of the priests, who is now retired, is entitled to have his name redacted from documents that were produced during discovery but not made part of the court record. The interest in public safety is not served by identifying the retired priest because he no longer has contact with children, the appeals court said.
However, the second, active priest cannot have his name redacted from such documents because his privacy rights are outweighed by the public’s interest in protecting children, the panel held. His position may cause him to have contact with children, the court said.
The appeal arose in connection with the Portland Archdiocese’s Chapter 11 bankruptcy, which was filed in the wake of numerous child sexual abuse lawsuits.
During discovery in those cases, the archdiocese produced under seal all reports of sexual abuse by priests, including priests who were not named in the suits.
After the Chapter 11 case closed in September 2007, some of the abuse claimants moved to unseal the documents that had been filed in the U.S. Bankruptcy Court for the District of Oregon. They also notified the archdiocese that they planned to release all the personnel records that had been produced in discovery.
The archdiocese and several priests objected to the planned disclosures.
Two of the priests, identified in the 9th Circuit opinion as Father M and Father D, were not defendants in any of the sex abuse cases. However, their personnel files had been produced during discovery and their names were mentioned in certain court filings and depositions.
Father D, who is almost 90 years old, retired from the priesthood in August 1989 because of severe depression, whereas Father M is also elderly but continues to serve as a priest, the opinion said.
Neither priest has ever faced a sexual abuse lawsuit. They argued that the claimants’ attempts to publish their names would ruin their reputations.
The Bankruptcy Court ultimately ruled the information could be disclosed. It found the priests had not demonstrated good cause to overcome the public’s right to access the names of, and allegations against, accused clergy.
The U.S. District Court for the District of Oregon affirmed that decision.
On appeal, the 9th Circuit acknowledged that the public “does have a weighty interest in public safety and in knowing who might sexually abuse children.”
As a result, the panel ruled that Father M’s personnel records, produced during discovery but not filed with the Bankruptcy Court, could be disclosed because “his clerical duties may bring him into contact with children.”
However, the appeals court reversed the decision to disclose the retired Father D’s personnel files.
The panel also ordered the redaction of information in court filings concerning both priests.
Under 11 U.S.C. § 107(b), a bankruptcy judge has the power to bar the disclosure of “scandalous” material.
The 9th Circuit said the statute displaces the public’s common-law right to access court documents.
The Bankruptcy Court erred when it held the references to the two priests were not “scandalous” because they had not demonstrated the information was untrue or was included in the record for an improper purpose, the appeals court ruled.
The panel said the Bankruptcy Code does not require such a showing. Rather, material is scandalous if it is disgraceful, offensive and shameful, the appeals court said.
Accusing a priest of sexual abuse is “most assuredly” scandalous because it brings discredit to the alleged perpetrator, the panel reasoned.
Attorneys:
Appellants: Michael B. Merchant, Black Helterline LLP, Portland, Ore.
Tort claimants: Erin K. Olson, Portland
(Reporting By Chip Giambrone, Westlaw Journal Bankruptcy)