RJ Doe v. Roman Catholic Bishop of Monterey

• Decision Date: 31 July 2015
• Docket Number: H040662
• Court: California Court of Appeals Court of Appeals
• Parties: JOHN RJ DOE, Plaintiff, v. THE ROMAN CATHOLIC BISHOP OF MONTEREY, CALIFORNIA, Defendant and Appellant; MILESTONE COMMUNICATIONS Intervener and Respondent.

JOHN RJ DOE, Plaintiff, v. THE ROMAN CATHOLIC BISHOP OFMONTEREY, CALIFORNIA,Defendant and Appellant;MILESTONE COMMUNICATIONS Intervener and Respondent.

H040662

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

July 31, 2015

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Monterey County Super. Ct. No. M110724)

This is an appeal brought by the Roman Catholic Bishop of Monterey, California (the Diocese) from an order modifying a protective order. The Diocese had obtained the order during discovery in a 2011 lawsuit filed by John RJ Doe (Doe) alleging sexual abuse by a Roman Catholic priest in Monterey County. The modification was entered in 2013 at the request of respondent Milestone Communications, doing business as the Monterey County Weekly (the Weekly). On appeal, the Diocese contends that (1) the Weekly should not have been permitted to intervene after the underlying action was dismissed and (2) the superior court erred as a matter of law by modifying the protective order. We will affirm the order.

Background

Doe filed his action in February 2011, naming, in addition to the Diocese, the Madonna Parish, located in Monterey County, and one of its priests, Father Edward Fitz-Henry. In Doe's complaint he alleged that he was a minor in 2004 and 2005. During that period, while Doe was a parishioner, altar server, and student, Fitz-Henry had engaged in "sexual conduct and abuse, including harassment and molestation" of Doe and other children. According to the complaint, the Diocese and the parish knew of Fitz-Henry's "dangerous sexual propensities and status as a child molester"; but instead of disclosing this information to its parishioners, including Doe and his parents, those defendants ignored and "covered up" the past abuse and allowed Fitz-Henry to resume contact with children with insufficient supervision.

The Diocese and the parish answered the complaint, and Fitz-Henry did so shortly thereafter. The Diocese (together with the parish) and Fitz-Henry then filed separate motions for a protective order to preclude the disclosure of materials produced in discovery, including Fitz-Henry's personnel file and psychotherapy records as well as previous allegations of sexual abuse involving other priests and other victims and witnesses. Defendants complained that Doe's document requests were overbroad and that they sought privileged and "highly private" information about third parties as well as the litigants. Noting the adverse publicity that had already been generated about this case, defendants sought the protective order "in order to protect the integrity of the fact-finding process and to avoid tainting prospective jurors by allowing Plaintiff to try the case in the media."

On July 20, 2011 the superior court granted defendants' motions. The order stated, in relevant part, "Until further notice, no records produced in discovery shall be disseminated or their contents disclosed to third persons prior to trial or adjudication on the merits." If records were to be attached as exhibits to any court submissions, they hadto be filed under seal pursuant to California Rules of Court, rule 2.551. The court further ruled that Fitz-Henry had not waived the psychotherapist-patient privilege.

The Diocese thereafter produced Fitz-Henry's personnel file, "subject to privilege objections." In connection with his subsequent motion to compel discovery responses, Doe filed several documents under seal; the Diocese did not file any. Doe and the Diocese settled before Doe's motion to compel could be resolved; consequently, no discovery materials were used in any adjudication by the court.

On January 31, 2012, Fitz-Henry filed a cross-complaint against the Diocese based on the Diocese's public disclosures of information relating to the accusations of sexual misconduct, including his receipt of counseling.¹ While that action was pending, Doe and the Diocese settled, and on February 22, 2012, the court clerk entered dismissal of Doe's entire complaint at his request. Fitz-Henry and the Diocese eventually reached a settlement as well, and on May 31, 2013 Fitz-Henry procured dismissal of his cross-complaint.

On May 20 or 21, 2013, the Weekly filed its motion to intervene and to vacate or modify the protective order. Doe's counsel was willing to turn over documents to the Weekly, but he believed that the protective order precluded their disclosure. The Weekly asserted that the First Amendment required courts to 'consider the public interest' in the subject matter and its "right and ability" to report information about the case, citing the "compelling social interests in protecting children from molestation." The Weekly claimed that the existing protective order was invalid because the court had failed toconsider the public interest, which it believed outweighed the defendants' interests in privacy and "secrecy," especially because the underlying case had been settled.

In response, the Diocese first disputed the jurisdiction of the court to hear the Weekly's motion because the complaint—and, it asserted, the cross-complaint—had been dismissed. The protective order had been properly issued, the Diocese maintained, and the court did have jurisdiction to enforce its terms. The Diocese further disputed the Weekly's and the public's right of access to pretrial discovery materials that had never been filed with the court.²

On September 10, 2013, the parties appeared in court for oral argument on the motion. The Weekly explained that the current basis of its motion was not the presumptive right of access under the First Amendment—that inquiry applied to filed documents under seal. Instead, the Weekly now argued, the relevant consideration was whether good cause for continued protection of the discovery materials outweighed the public interest in disclosure. Here, in the Weekly's view, no good cause existed for maintaining the protective order because the right to a fair trial was no longer at issue, Doe's case having been settled.

In its opposition, the Diocese argued that this issue could have been adjudicated at the time the protective order was first being discussed. The Diocese pointed to the transcript of that June 2011 hearing: When asked for his position on disclosure, Doe's counsel advised the court that he did not intend "to give documents to the media or press or anything like that. We want to use this information for discovery to prepare our case for trial." The documents were produced in reliance on that assurance, the Dioceseargued; to allow disclosure now would "turn decades of California law of privacy on its head."

The trial court decided to continue the hearing pending an in camera review of the disputed material. The court made it clear that no documents withheld from Doe based on a claim of privilege were at issue; all the court would be considering was the extent to which Doe could turn over to the Weekly those he had received in the course of discovery. The Diocese thereafter submitted copies of documents the court had requested to facilitate its analysis.

Before the continued hearing, the court issued a "Preliminary Determination After In Camera Review." Having reviewed numerous documents,³ the court offered its view of the parties' positions. It did not agree with the Diocese that the previous representation by Doe's counsel regarding his intent not to disclose the discovery materials prevented modification of the order on the Weekly's request. The court emphasized that the issue did not involve a First Amendment right of access, forced disclosure, or unsealing of documents submitted for adjudication. Instead, the analysis called for a balancing of interests under the Civil Discovery Act, and in particular, Code of Civil Procedure section 2031.060, subdivision (b).⁴

In its undertaking of that analysis, the court commented that "[t]he mere existence of an allegation of wrongdoing ought not compel a finding of an overriding public interest, for obvious reasons—one would need only make such an allegation, andinformation of a personal nature of an accused, his/her alleged victims, and persons close to them would be thrown into the public domain. The Court feels that generalized statements in cases from other jurisdictions—to the effect that whenever clergy sexual abuse is alleged there results a complete loss of privacy rights for the accused, and alleged victims or witnesses—are themselves not helpful and in fact undercut the notion that the Court must in each instance balance the interests involved in deciding whether disclosure of discovery materials should be prohibited."

The court then engaged in its balancing of the interests involved. The Diocese, the court stated, did not have a recognizable privacy interest of its own. The public interest, on the other hand, was identified as "a public interest in preventing or avoiding future harm and perhaps to a lesser extent in learning of the circumstances of alleged—but not adjudicated—abuse, and at what levels there was an awareness of the same, as well as what action, if any, was taken in response." The court noted that whether the Diocese's responses to the allegations of misconduct were appropriate was "not at issue in this ruling—only whether disclosure of any information in the documents should be prohibited by court order."

The court emphasized that the identities of witnesses and other alleged minor victims were not to be disclosed. No disclosure would be permitted of information regarding psychotherapy or counseling, which was presumptively privileged, and the identities of some personnel (beyond their titles) and parishioners of the church were to be withheld....