Strike two for Mahony

Strike two for Mahony

A state appeals court in California is calling Cardinal Mahony’s bluff. It has rejected his claim that clergy personnel files are covered under the priest-penitent privilege.

The claim is particularly far-fetched as legal theory because other dioceses, also institutions of the Catholic Church subject to the same doctrines and canon law that LA is subject to, have not asserted the same privilege, thus exploding Mahony’s argument that such communications are bound by universal Catholic principles.

The cardinal even sought to assert that three-way communications including the bishop, priest, and other priests should be protected.

[Mahony lawyer Donald] Woods said he hoped a higher court would take a different view of the priest-penitent privilege and allow three-way communications between the bishop, his vicar and an accused priest to fall within it. “It’s like having two priests in the confessional instead of one,” he said.

As Diogenes says, “Must get crowded, surely?”

Written by
Domenico Bettinelli
  • Well, I don’t know what the particular law is in California, but it doesn’t strike me as absurd on its face that communications between a priest and his bishop might be covered by the priest-penitent privilege (or, to give a more accurate name, the clergyman-communicant privilege, where “communicant” doesn’t refer to Communion but to communications).  As I’ve been trying to explain over on Bill Cork’s blog, the testimonial privilege under civil law is not defined by the limits of the seal of the confessional under canon law. 

    As one court has said, the privilege attaches to “communications made (1) to a clergyperson [footnote omitted] (2) in his or her spiritual and professional capacity (3) with a reasonable expectation of confidentiality. ” In re Grand Jury Investigation, 918 F.2d 374, 384 (3d Cir. 1990) (this is an explanation of the privilege under federal law in the Third Circuit; as I said, California law may be different).  These standards may or may not apply to the documents in question.

    Attorney Woods’s comments about “having two priests in the confessional instead of one” is more confusing than helpful, as it muddies the difference between the testimonial privilege and the seal of the confessional.  He would have been better advised to cite legal authority such as the Third Circuit’s statement that, “[a]s is the case with the attorney-client privilege, the presence of third parties, if essential to and in furtherance of the communication, should not void the privilege.” Id.

  • To address your second point first, it seems to me that the court is specifically addressing attorney-client privilege, not clergy-communicant, and that the parallel doesn’t hold because the types of communication are inherently different. I’m no lawyer, but this is just my opinion based on what I see as common sense.

    As to the first point, the fact remains that no other bishop has claimed that communication between a superior (the bishop) and an inferior who acts as the superior’s representative and surrogate (the priest) is what was envisioned by laws protecting spiritual succor, including confession and spiritual direction.

    If this is a privilege that could be asserted of such communications it stands to reason that it would have been brought up long ago (if it hasn’t been; my memory is not all-encompassing) or that a court would have upheld the precedent.

  • To address my second point, if you read the case, you’ll see that the court *was* addressing the priest-penitent privilege (or clergyman-communicant privilege), and saying that, like the attorney-client privilege, *does* extend to three-way (or four-way, or five-way) communications, assuming the proper conditions are otherwise satisfied.

    As to the first point, there are lots of legal issues that are decided in cases of first impression.  The fact that this attorney is making the argument indicates to me that there is no California precedent against him (or at least none from the state supreme court).

  • I don’t have access to a law library, so I’ll have to rely on your description of the rulings. I think the key question is what the “proper conditions are” and what “if essential to and in furtherance of the communication” means.

    Does it mean a translator for two people who don’t speak the same language? Or does it mean that two clergymen can be present for the spiritual communication?

    But apart from the purely legal question, there is the larger question of why Mahony is exposing the priest-penitent privilege to such danger when the obvious tactic is not defense of the privilege, but defense of his butt.

  • The proper conditions are the ones listed elsewhere in the opinion (i.e., the communications were made (1) to a clergyperson, (2) in his or her spiritual and professional capacity, (3) with a reasonable expectation of confidentiality).

    I’m not sure what “if essential to and in furtherance of the communication” means, but since the court was drawing an analogy with the attorney-client privilege, I would guess that it means that, just as a client can make a privileged statement not just to one lawyer, but to two lawyers, or to a lawyer and a paralegal working for the lawyer, or to a lawyer and a secretary wroking for the same firm, then similarly if a priest communicated with his bishop in the course of a spiritual or professional relationship, the privilege would not be voided if the bishop had present another priest or a member of the chancery staff to assist the bishop in his spiritual or professional role.  (To further the analogy with the attorney-client relationship, if the priest communicated to the bishop in the presence of a third party who wasn’t assisting the bishop, but was simply, say, another priest of the same or a different diocese, I would think the privilege had been waived.)

    Finally, testimonial privileges are *always* invoked for the sake of saving someone’s butt.  In this case, however, the privilege doesn’t belong to the bishop but to priests who communicated with him.  If *they* were to waive the privilege, then the bishop wouldn’t have a leg to stand on.  (Of course, maybe the priests want to save their own butts.  And if their communications fall within the privilege, then the law allows them to do so, because it is the judgment of society that the clergyperson-communicant relationship is one worthy of protection.)  And just as attorneys can’t hide behind the attorney-client privilege if they are advising their clients on, say, how to launder money and get away with it, if the communication between the priest and the bishop was made in the furtherance of some future crime, then the crime/fraud exception to the privilege would apply, and the bishop would be out of luck.

  • The prime question though is whether these communications were “made in a spiritual and professional [i.e. therapeutic] capacity”.

    I also think you’re missing my point on “saving his butt.” Of course, this is a standard and indeed “good” legal strategy, but is it good for the Church and for the sanctity of the confessional?

    Is every legal defense morally permissible for the Church? Just the other day, we read that lawyers for the Church used the defense that the mother of a priest’s child should be held liable for the birth of the child because she didn’t use birth control or abort her kid. Certainly a valid legal defense, but what does it do to the Church’s teaching of the Gospel message?

  • If the privilege applies, the bishop doesn’t have any choice about whether to invoke it, any more than an attorney does.  The privilege belongs to the person making the communication, who is the only person who can waive it.

    It may be a moot point, however, as Peter Sean Bradley (over at ut unum sint) has quoted the actual California statute that sets forth the privilege, and it appears to be must narrower thant he privilege under federal law.  It deals with “penitential communications” and appears to apply only in contexts like that of the sacrament of penance.  That is, the communication may have to be of a “penitential” nature, rather than one seeking general spiritual direction or counseling.

  • They’re going to fool around and erode the state’s willingness to support the seal of the confessional if they’re not careful.  This is no small matter.

    It is completely and perfectly possible for an employee and his boss to be sued or prosecuted for business communications that have gone on between them.  Happens all the time. 

    No one is going to believe that everytime a priest in Los Angeles talks to his boss, he’s in the confessional.  That’s just too farfetched.

  • I always thought that Confession involved admission of the guilt of sin by the penitent and the absolution by the priest.

    When was the last time you heard any bishop anywhere, or any accused priest, talk about sin?  They are always saying “inappropriate boundaries” or “mistakes” or something like that, but never sin.  If there’s no sin, then there’s no absolution, and no confession.  Conversation maybe, but not confession. I hope the judge nails Mahoney.

  • I did not plow through all the legal details that the invaluable Seamus was kind enough to provide, but on the social/political level, no judge is going to shield the Church from the well known relsults of years of spiritual malpractice and gross disregard for the souls and physical safety of the children placed in its care.  No judge is going to go out of his way to keep these chickens from coming home to roost.  And Crd. Mahony has a lot of chickens coming home.

  • This legal maneuvering may do wonders for the financial health of the Los Angeles Diocese and the future living arrangements of its leadership.  What will it do to the credibility of that same leadership in the eyes of the Los Angeles faithful?  Assuming they still have a shred of credibility left, that is.  Most people neither understand the legal intricacies nor do they want to understand them.  Most people simply draw their own conclusions based on the obvious, it seems to me.  Wouldn’t it make sense for the Pope to remove this bishop and appoint someone else?  Mahony and his lawyers would do a lot less damage to the faith if he were no longer bishop.  What is an empty cathedral warehouse going for on the auction block these days?

  • All the lawyerese in the world can’t cover over the obvious dung.  On at least two occasions, His Eminence was in the room with a priest and a third party witness (an attorney) who told him that he (the priest) had a problem keeping his hands off little boys. 

    Do a google search on the two in question:  Father Michael Wempe and Father Michael Baker.  Both individuals (GOD it sickens me that they’re priests) were subsequently shuffled into areas of easy access to more small children.

    Thanks, Cardinal.  Good luck with your zero tolerance road show.

    And let’s pray for DA Steve Cooley (a practicing Catholic) and his team as they seek to bring all the rats in the story out of their chancery-shaped holes.

    How about 2 million in a confessional?  Yeah, let’s include the listeners of the John and Ken radio show on KFI-Am 640 in Los Angeles who read a whole bunch of incredibly maddening “secret” emails between Mahoney and his minions, lawyers and sycophants, in an elaborate dance around the obvious facts.

    How long, o Lord?