Ex Parte Zoghby

• Decision Date: 09 November 2006
• Docket Number: No. 1050959.,1050959.
• Parties: Ex parte Father Paul G. ZOGHBY (In re: Linda Ledet v. Catholic Archdiocese of Mobile et al.).
• Court: Alabama Supreme Court

958 So.2d 314

Ex parte Father Paul G. ZOGHBY (In re: Linda Ledet v. Catholic Archdiocese of Mobile et al.).

No. 1050959.

Supreme Court of Alabama.

November 9, 2006.

Vincent F. Kilborn III, David A. McDonald, and W. Perry Hall of Kilborn, roebuck and McDonald, Mobile, for petitioner.

Richard H. Holston and W. Lloyd Copeland of Taylor-Martino-Kuykendall, Mobile, for respondent.

PETITION FOR WRIT OF MANDAMUS

STUART, Justice.

Father Paul G. Zoghby petitions this Court for a writ of mandamus directing the trial court to vacate its order granting Linda Ledet's motion to compel discovery of documents relating to psychological counseling Zoghby underwent. We deny the petition.

Facts

Linda Ledet and her husband and children were parishioners at St. Mary's Catholic Church in Mobile from 1995 through 2001. During that time, Zoghby, who was an associate priest at St. Mary's at that time, developed a friendship with Ledet. According to Ledet, in late 1997 Zoghby began making improper and unwelcome advances toward her, including attempting to physically embrace her in an intimate or sexual manner, touching her on intimate parts of her body in a sexual manner, making lewd and sexually suggestive comments to her, exposing his genitalia to her, and attempting to force her, physically and by command as a priest, to engage in sexual relations with him.

During the summer of 2002, after attending a meeting described as an "open invitation to victims of abuse" sponsored by the Catholic Archdiocese of Mobile, Ledet filed a formal written complaint with the Archdiocese, asserting claims of sexual misconduct against Zoghby. This complaint was reviewed by Archbishop Oscar Lipscomb and Chancellor Michael Farmer.¹ In his deposition testimony, Archbishop Lipscomb explained that when allegations of sexual misconduct are made, the Archbishop is responsible for directing the investigation into the alleged misconduct for the Archdiocese and for making a judgment and disposing of the complaint. He stated that because Ledet requested strict confidentiality in this matter, he investigated her claims himself.

Archbishop Lipscomb stated that when he began his investigation and confronted Zoghby about Ledet's allegations, Zoghby denied the alleged misconduct and in a written response to Ledet's complaint accused Ledet of improper conduct, mental instability, and untruthfulness. Archbishop Lipscomb indicated that when he considered Zoghby's oral denial and his written response, he questioned Zoghby's veracity, stating: "I just thought he wasn't telling the truth. It appeared that way from her description of things and from his responses. . . . I've had experience in people telling me the truth. And — it did not [appear to be] the whole truth." In September 2002, when Archbishop Lipscomb again confronted Zoghby about the allegations and his response, Zoghby recanted his false allegations against Ledet and admitted his misconduct.

After Zoghby admitted his misconduct, the Archdiocese, acting through Archbishop Lipscomb, attempted to resolve Ledet's complaint. Archbishop Lipscomb explained that in resolving an issue of sexual misconduct by a priest in his Archdiocese he first addressed the needs of the victim; he then tried to

"deal with the perpetrator to see is he salvageable and what are the conditions under which you might approach a return to some kind of active ministry. Because [the perpetrator] was going to be out of [the active ministry] for a good long period as a result of [the accusation]."

He stated that to resolve the complaint in this case the Archdiocese entered into an agreement with Ledet pursuant to which the Archdiocese agreed to pay for the therapeutic counseling and treatment necessary to enable her and her family to recover from the emotional and mental trauma of Zoghby's actions. The Archdiocese further promised Ledet that Zoghby would receive intensive therapy and counseling and that Zoghby would not be placed in a position where he could further harm others. As part of the agreement, Ledet and her family agreed to remain silent about Zoghby's actions, to not publicize the accusations against Zoghby, and to refrain from filing civil litigation against the parties involved.

In 2003 Ledet learned that Zoghby had returned to active ministry and that he had been "promoted" to the position of pastor over a parish in Foley. She also began "to question" whether Zoghby was actually receiving the therapy and counseling mandated by the agreement. According to Ledet, when she notified Archbishop Lipscomb that she believed the Archdiocese had not fulfilled its part of the agreement, Archbishop Lipscomb threatened her, "stating that publicity surrounding Zoghby's actions would be harmful to her and to her husband and children and that it would destroy [her] reputation."

The revelations that Zoghby had not received treatment and that he had been promoted to the position of pastor of a parish triggered "emotional trauma" in Ledet. She underwent treatment for this trauma at several facilities. When she presented the bills for her treatment to the Archdiocese for payment, the Archdiocese refused to pay.

In 2004, Ledet sued the Archdiocese, Archbishop Lipscomb, and Chancellor Farmer, alleging breach of contract and the tort of outrage. Ledet did not name Zoghby as a defendant.

As discovery progressed, Ledet learned that Zoghby had received some counseling under the supervision of Father Benedict Groeschel at Trinity Retreat, a Catholic counseling center in New York state that is connected with a psychiatric hospital, and that Zoghby had authorized the release of the records resulting from that counseling to Archbishop Lipscomb. Ledet requested that the Archdiocese produce all psychiatric records and reports relative to Zoghby's treatment, including "complete and correct" copies of all psychological and psychiatric testing. The defendants objected, alleging confidentiality and privilege.

Although not a party to the action, Zoghby also objected to Ledet's production request, claiming that the records of his treatment at Trinity Retreat were privileged under both the psychotherapist-patient privilege, see Rule 503, Ala. R. Evid., and the privilege accorded communications to clergy, see Rule 505, Ala. R. Evid. In support of his objection, Zoghby submitted an affidavit in which he explained the circumstances of his counseling and the confidentiality he understood attached to his release to Archbishop Lipscomb of the documents relating to that counseling. Zoghby averred:

"I have known Archbishop Oscar H. Lipscomb for many years and he is both my bishop and a spiritual advisor. I have entrusted to him many confidential matters over the years concerning my vocation and calling into the priesthood, and I have had many private discussions with him concerning my spiritual growth and discernment and I have always expected these matters of utmost trust would remain confidential. I am certain he feels the same way.

"In the year 2002 and 2003, I participated in counseling with the Archbishop and signed a release authorizing my counselor to send to and give the Archbishop access to my counseling records in order to assist the Archbishop in giving me personal and spiritual guidance. I do not have these records in my personal possession. I simply released them to the Archbishop as a substitute for me getting the records and then forwarding them to the Archbishop. I am generally familiar with the clergyman's privilege since I am a priest myself. My communications with the Archbishop and my authorization for records to be released directly to the Archbishop constitute communications to the Archbishop in his professional capacity, as my bishop and a spiritual advisor. In my opinion, the communications are covered by the clergyman's privilege. They were made privately and it was not intended that the communications and the records related thereto be further discussed or given to any other person. The sole purpose of the communications with the Archbishop [was] to advise me as my bishop and a spiritual advisor."

Ledet moved to compel discovery of the records, claiming Zoghby had waived the psychotherapist-patient privilege by authorizing the release of the documents to Archbishop Lipscomb. Ledet further argued that the released documents were not protected by the clergyman privilege because, she maintained, the documents were not released to Archbishop Lipscomb in his professional capacity as Zoghby's spiritual advisor, but in his capacity as an administrator for the Archdiocese, investigator of her complaint alleging misconduct, and enforcer of the agreement she had entered into with the Archdiocese.

In support of her motion, Ledet submitted excerpts from Archbishop Lipscomb's deposition, in which Archbishop Lipscomb explained his relationship with Zoghby and his role in the investigation of her complaint against Zoghby. Archbishop Lipscomb stated that he was a close friend of Zoghby's, that he considered himself to have played a significant role in Zoghby's choosing and pursuing the priesthood, and that he was hurt when Zoghby lied to him during the investigation. Archbishop Lipscomb further explained that his discussions with Zoghby during and after the investigation did not address spiritual matters and that he did not consider himself to be Zoghby's spiritual advisor. Specifically, he stated that Zoghby did not engage in a spiritual confession to him and that he was not Zoghby's mentor. He admitted that "[he and Zoghby] obviously have discussed things that [he] thought were necessary for [Zoghby's] healing, and we obviously have discussed a program and the place where that would take . . . place. And since [Zoghby's] return, obviously, we have discussed his role in the parish and my expectations for it." Indeed, Archbishop Lipscomb explained his role in the process as follows:

"[Counsel]: And you were able to get help for Father Zoghb...