Doe v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints

• Decision Date: 14 June 2012
• Docket Number: S058601 (Control); S058634.
• Citation: 280 P.3d 377,352 Or. 77
• Parties: JACK DOE 1, an individual proceeding under a fictitious name; Jack Doe 2, an individual proceeding under a fictitious name; Jack Doe 3, an individual proceeding under a fictitious name; Jack Doe 4, an individual proceeding under a fictitious name; Jack Doe 5, an individual proceeding under a fictitious name; Jack Doe 6, an individual proceeding under a fictitious name, Plaintiffs, v. CORPORATION OF the PRESIDING BISHOP OF the CHURCH OF JESUS CHRIST OF LATTER–DAY SAINTS, a foreign corporation solely registered to do business in the State of Oregon; and Corporation of the President of the Church of Jesus Christ of Latter–Day Saints and Successors a foreign corporation solely registered to do business in the State of Oregon, Defendants, and The Boy Scouts of America, a congressionally chartered corporation, authorized to do business in Oregon; and Cascade Pacific Council, Boy Scouts of America, an Oregon non-profit corporation, Defendants–Adverse Parties, and The Associated Press, The Oregonian, Oregon Public Broadcasting, The New York Times, KGW, and Courthouse News Service, Intervenors–Relators. Jack Doe 1, an individual proceeding under a fictitious name; Jack Doe 2, an individual proceeding under a fictitious name; Jack Doe 3, an individual proceeding under a fictitious name; Jack Doe 4, an individual proceeding under a fictitious name; Jack Doe 5, an individual proceeding under a fictitious name; Jack Doe 6, an individual proceeding under a fictitious name, Plaintiffs, v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter–Day Saints, a foreign corporation solely registered to do business in the State of Oregon; Corporation of the President of the Church of Jesus Christ of Latter–Day Saints and Successors, a foreign corporation solely registered to do business in the State of Oregon; and Cascade Pacific Council, Boy Scouts of America, an Oregon non-profit corporation, Defendants, and The Boy Scouts of America, a congressionally chartered corporation, authorized to do business in Oregon, Defendant–Relator, and The Associated Press, The Oregonian, Oregon Public Broadcasting, The New York Times, KGW, and Courthouse News Service, Intervenors–Adverse Parties.
• Court: Oregon Supreme Court

352 Or. 77

280 P.3d 377

JACK DOE 1, an individual proceeding under a fictitious name; Jack Doe 2, an individual proceeding under a fictitious name; Jack Doe 3, an individual proceeding under a fictitious name; Jack Doe 4, an individual proceeding under a fictitious name; Jack Doe 5, an individual proceeding under a fictitious name; Jack Doe 6, an individual proceeding under a fictitious name, Plaintiffs,

v.CORPORATION OF the PRESIDING BISHOP OF the CHURCH OF JESUS CHRIST OF LATTER–DAY SAINTS, a foreign corporation solely registered to do business in the State of Oregon; and Corporation of the President of the Church of Jesus Christ of Latter–Day Saints and Successors a foreign corporation solely registered to do business in the State of Oregon, Defendants,andThe Boy Scouts of America, a congressionally chartered corporation, authorized to do business in Oregon; and Cascade Pacific Council, Boy Scouts of America, an Oregon non-profit corporation, Defendants–Adverse Parties,

and

The Associated Press, The Oregonian, Oregon Public Broadcasting, The New York Times, KGW, and Courthouse News Service, Intervenors–Relators.

Jack Doe 1, an individual proceeding under a fictitious name; Jack Doe 2, an individual proceeding under a fictitious name; Jack Doe 3, an individual proceeding under a fictitious name; Jack Doe 4, an individual proceeding under a fictitious name; Jack Doe 5, an individual proceeding under a fictitious name; Jack Doe 6, an individual proceeding under a fictitious name, Plaintiffs,

v.Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter–Day Saints, a foreign corporation solely registered to do business in the State of Oregon; Corporation of the President of the Church of Jesus Christ of Latter–Day Saints and Successors, a foreign corporation solely registered to do business in the State of Oregon; and Cascade Pacific Council, Boy Scouts of America, an Oregon non-profit corporation, Defendants,andThe Boy Scouts of America, a congressionally chartered corporation, authorized to do business in Oregon, Defendant–Relator,

and

The Associated Press, The Oregonian, Oregon Public Broadcasting, The New York Times, KGW, and Courthouse News Service, Intervenors–Adverse Parties.

S058601 (Control); S058634.

Supreme Court of Oregon, En Banc.

Argued and Submitted Jan. 11, 2011.

Decided June 14, 2012.

Prior Version Recognized as Unconstitutional

West's Or.Rev. Stat. Ann. § 136.617.

Charles F. Hinkle, Stoel Rives LLP, Portland, argued the cause and filed the briefs for Intervenors–Relators/Intervenors–Adverse Parties The Associated Press, The Oregonian, Oregon Public Broadcasting, The New York Times, KGW, and Courthouse News Service.

Robert L. Aldisert, Perkins Coie LLP, Portland, argued the cause and filed the briefs for Defendants–Relators/Defendants–Adverse Parties The Boy Scouts of America.

Lori Irish Bauman, Ater Wynne LLP, Portland, filed the brief for amicus curiae TechAmerica. With her on the brief was Frank V. Langfitt.

Erin K. Olson, Portland, filed the brief for amici curiae National Center for Victims of Crime, Survivors Network of Those Abused by Priests, Jewish Board of Advocates for Children, Inc., Child Protection Project, Child Victims Voice, Oregon Abuse Advocates and Survivors in Service, Oregon Anti–Crime Alliance, Crime Victims United, and Oregon Trial Lawyers Association. With her on the brief was Marci A. Hamilton, Washington Crossing, Pennsylvania.

Denise G. Fjordbeck, Attorney–in–Charge, Salem, filed the brief for amicus curiae State of Oregon.

DURHAM, J.

These opposing petitions for writs of mandamus challenge a trial court order allowing the release, to the press and to the public, of redacted versions of 1,247 “ineligible volunteer” files belonging to defendant Boy Scouts of America (BSA). Those files contain information regarding child sexual abuse complaints against BSA volunteers from 1965 to 1985. The trial court had admitted the files, and BSA's actions in response to those complaints, into evidence in the jury trial of the matter below. To decide these mandamus petitions, we must examine the contours of the “open courts” clause of Article I, section 10, of the Oregon Constitution. That clause provides, in part:

“No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay[.]”

For the following reasons, we dismiss both writs.

These mandamus petitions arise out of a tort action brought against the Church of Jesus Christ of Latter–Day Saints and the BSA by six former Boy Scouts who alleged sexual abuse by their scout leaders.¹ One of those former scouts, Lewis, severed his claims from the other plaintiffs' claims and the matter proceeded to trial. During pretrial discovery, plaintiffs requested that BSA produce its ineligible volunteer files. After BSA objected, plaintiffs moved to compel production of the files. The trial court granted plaintiffs' motion to compel and ordered BSA to produce all unredacted ineligible volunteer files covering the period 1965 to 1985, subject to a protective order. The protective order required the parties to keep the files confidential and prohibited distribution of the files. The order also required that all copies be returned to BSA within days after a judgment or order terminating the action.

The trial court conducted a bifurcated trial of Lewis's claims. During phase one, the jury heard evidence related to liability, compensatory damages, and liability for punitive damages. During that phase, Lewis offered all 1,247 files into evidence, each file as a separate exhibit. Each file apparently contains information related to one alleged perpetrator of abuse, not one act of abuse and not one victim of abuse. The court received each file into evidence, over BSA's objections. Lewis discussed many of the ineligible volunteer files in the presence of the jury during trial, and all files accompanied the jury into the jury room for consideration during deliberations. At the conclusion of phase one, the jury awarded compensatory damages in the amount of $1.4 million and found BSA liable to Lewis for punitive damages. At the conclusion of phase two, the jury returned a verdict of over $18 million in punitive damages.² After trial, the trial court entered another protective order, continuing the restrictions of its previous protective order until further order of the court.

Following the verdict, plaintiffs moved to vacate the protective order so that they could release the ineligible volunteer files to the public. Six media entities ³ had previously had moved to intervene and also asked the trial court to release the trial exhibits, including the 1,247 ineligible volunteer files, for immediate public access. The trial court heard those motions together.

In an opinion and order dated June 18, 2010, the trial court granted plaintiffs' motion to vacate the protective order and granted intervenors' motion to release the trial exhibits, subject to two conditions: (1) “redaction of the names of the victims and those who reported alleged abuse”; and (2) a “stay in the effectiveness of this Order pending appellate review.” The trial court concluded that Article I, section 10, required the release of the ineligible volunteer files, reasoning that Article I, section 10, encompassed “the right of the public and the press to know what evidence is presented in Court proceedings and is available for consideration by the jury in reaching its verdict.” The trial court accorded significance to the differences between Oregon's open courts clause and the open courts clause of Indiana, upon which Oregon's clause was based: “Th[e] strengthening of the language clearly evidences the intent of the framers to have public access be the hallmark of Oregon's court system.”

The trial court also addressed defendants' separate argument that, if Article I, section 10, did not compel the court to provide public access to the disputed files, then the question of public access to trial exhibits was a matter governed by the trial court's discretion. The trial court determined that it was appropriate for the court to consider how it would exercise any available discretion regarding the possible release of exhibits in the event that a reviewing court determined that Article I, section 10, did not require the court to grant access to the files.

The court considered an array of factors that the parties offered to influence the court's discretionary choices. The court stated:

“Defendants cite the following factors that support Defendants' claim that the Court should exercise its discretion to deny the motions: Prejudice to Defendants in terms of the opportunity of Defendants to receive a fair trial of the remaining cases; prejudice to third parties, in particular victims of sexual abuse who wish to remain anonymous; prejudice to alleged perpetrators considering that the exhibits do not exist only on account of criminal convictions or other adjudications of responsibility by the individuals who are the subject of the files; the lack of prejudice to the remaining Plaintiffs; and the salutary effect assurances of confidentiality have on the willingness of individuals to report alleged abuse.”

“Plaintiffs and Amici respond that lifting the veil of secrecy on child sexual abuse is the primary method by which the child sexual abuse problem in our society will be reduced, minimized, or hopefully eradicated. Plaintiffs and Amici support redaction of the names of the alleged victims. Plaintiffs also support the redaction of the names of those who reported the alleged abuse. Intervenors claim the right to the unredacted files in the form they were received into evidence.”

The court then explained how it would exercise its discretion to release the files in a redacted form if the constitution did not require release of the files in an unredacted form:

“Considering the factors noted above, the Court concludes that if Article...