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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
THE PEOPLE OF THE STATE OF NEW YORK,
By LETITIA JAMES, Attorney General of the Index No.
State of New York,
Plaintiff,
-against-
DIOCESE OF BUFFALO, RICHARD J. MALONE,
EDWARD M. GROSZ, and EDWARD B.
SCHARFENBERGER, in his capacity as Apostolic
Administrator for the Diocese of Buffalo,
Defendants.
MEMORANDUM OF LAW
IN SUPPORT OF THE ATTORNEY GENERAL’S
MOTION FOR AUTHORIZATION TO
IDENTIFY CREDIBLY-ACCUSED PRIESTS
LETITIA JAMES
ATTORNEY GENERAL OF THE STATE OF NEW YORK
Meghan Faux, Chief Deputy Attorney General for Social Justice
James Sheehan, Charities Bureau Chief
Emily Stern, Co-Chief of Enforcement Section, Charities Bureau
Daniel Roque, Assistant Attorney General
Steven Shiffman, Assistant Attorney General
Catherine Suvari, Assistant Attorney General
Attorneys for Plaintiff State of New York
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TABLE OF CONTENTS
Table of Authorities ....................................................................................................................... iii
Introduction .....................................................................................................................................1
Factual Background .........................................................................................................................2
Argument ........................................................................................................................................6
A. Identification of the Accused Priests by Name Will Ensure Transparency
and Serve the Interests of the Public and the Abuse Complainants. ..............................7
B. The Court Should Provide the Accused Priests with Notice and the
Opportunity to Assert Any Legal Objections to Disclosure. .........................................8
Requested Relief ...........................................................................................................................11
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TABLE OF AUTHORITIES
Cases
Danco Laboratories, Ltd. v. Chemical Works of Gedeon Richter, Ltd.,
274 A.D.2d 1 (1st Dep’t 2000 .................................................................................................6
GCVAWCG-DOE v. Roman Catholic Archdiocese of New York, No. 56145/2020,
69 Misc.3d 648, 2020 WL 5083559 (Sup. Ct. Westchester Cty. Aug. 27, 2020) ..................6
In re Fortieth Statewide Investigative Grand Jury (I), 190 A.3d 560 (Pa. 2018).................... 10-11
In re Fortieth Statewide Investigative Grand Jury (II), 197 A.3d 712 (Pa. 2018) .................... 9-10
Matthews v. Eldridge, 424 U.S. 319 (1976) ....................................................................................9
Mosallem v. Berenson, 76 A.D.3d 345 (1st Dep’t 2010) ................................................................6
Other Authorities
United States Conference of Catholic Bishops, Statement by the Bishops’ Committees
on Women in Society and in the Church and Marriage and Family, Walk in the Light:
A Pastoral Response to Child Sex Abuse (1995) ...............................................................8 n.3
Marci A. Hamilton, The Time Has Come for a Restatement of Child Sex Abuse,
79 Brooklyn L. Rev. 397 (2014) ..............................................................................................8
Marci A. Hamilton, The Waterloo for the So-Called Church Autonomy Theory:
Widespread Clergy Abuse and Institutional Cover-Up,
29 Cardozo L. Rev. 225 (2007) ......................................................................................... 8 n.3
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INTRODUCTION
The Attorney General’s Complaint in this action confronts a nearly two decade-long
failure by the Diocese of Buffalo (the “Diocesan Corporation” or the “Diocese”) to comply with
standards established by the U.S. Conference of Catholic Bishops (“USCCB”) to address and
prevent the sexual abuse of minors. Among other things, this failure denied the Diocese’s
parishioners and the public at large the transparency and accountability for the problem of clergy
sexual abuse that the Diocese had promised when it adopted those standards in 2002. The
Complaint names as defendants the Diocese and the two most senior leaders who were
responsible for implementing its protective policies, Bishop Emeritus Richard J. Malone and
former Auxiliary Bishop Edward Grosz. The Complaint alleges that the defendants evaded key
provisions of the Diocese’s publicly-stated standards and ignored the Diocesan Corporation’s
own requirements for the investigation, review, and remediation of alleged sexual abuse by
Diocesan priests, in direct defiance of the USCCB’s public commitment to reform. These
failures are illustrated in the Complaint through close review of the Defendants’ response to
allegations of misconduct by twenty-five individual priests. Twenty-three of the priests
discussed in the Complaint have been publicly identified in the Diocese’s own published list of
credibly accused priests.
The Attorney General brings this motion simultaneously with the filing of her Complaint
to obtain a ruling at the outset of this litigation permitting the identification by name of those
accused priests who are already publicly identified by the Diocese as credibly accused of
improper sexual conduct. Pending such a determination, the Attorney General has taken the
precaution of referring to these priests by pseudonyms in the Complaint. The Attorney General
believes that disclosure of the names of the credibly-accused priests is necessary to a full, fair
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and transparent presentation of evidence and that no legal basis exists to conceal their identities
in this litigation. However, in recognition of the interests of the non-party priests, the Attorney
General proposes that the Court hold a hearing to consider objections to the identification by
name in the Complaint of the twenty-three priests discussed therein that have already been
publicly identified as credibly accused of sexual abuse. To complete this review, the Attorney
General proposes a procedure similar to the approach crafted by a Pennsylvania court that
examined concerns raised during the 2018 publication of a Pennsylvania grand jury report on
clergy sexual abuse. Here, as in Pennsylvania, hearing and review of the Attorney General’s
proposed disclosure will balance the rights and interests of the State, the victims, and the public
with the rights and interests of individual priests who might be affected by personal identification
in the Attorney General’s pleading and in the litigation to follow. For the reasons discussed
below, the Attorney General believes that the relief requested by this motion is in the public
interest and consistent with well-established principles of judicial transparency in New York law.
FACTUAL BACKGROUND
The Attorney General serves as the principal regulator of New York nonprofit
corporations, including entities that elect to incorporate under the provisions of the Religious
Corporations Law (“RCL”). Through this role, the Attorney General bears a unique authority
and responsibility to enforce civil standards in New York law that require the Diocese of Buffalo
to adequately address institutional harms of the scale and magnitude of the clergy sex abuse
crisis.
In September 2018, the Attorney General commenced an investigation of the Diocese’s
response to the sexual abuse crisis that sought to ensure compliance with the standards of care
and fiduciary loyalty that apply to all New York charities, including the Diocesan Corporation
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and its leadership. The Investigation examined thousands of pages of business records produced
by the Diocese and included sworn examination testimony by Bishop Emeritus Malone and the
senior staff leader who reported to him, former Auxiliary Bishop Grosz. The information drawn
from those efforts confirmed an astonishing failure to properly address allegations of clergy
sexual misconduct against children despite clear — and publicly-touted — standards adopted by
the Diocesan Corporation to protect children.
The Complaint in this action illustrates the specific actions and inaction by the defendants
that violated multiple provisions of the Not-for-Profit Corporation Law (“N-PCL”) and Estates,
Powers and Trusts Law (“EPTL”) through a review of individual priest personnel records taken
directly from Diocese files. Because the Attorney General brings her claims to obtain remedial
and injunctive relief against the Diocese as an institution and two of its former bishops as
fiduciaries charged with ensuring its proper administration, the Complaint focuses exclusively on
the existence of abuse allegations and their treatment by the Diocese. For reasons reviewed at
length in the Complaint, the Attorney General contends that the nature of the allegations of abuse
made to the Diocese and the responses recorded in its own files establish that the defendants
failed to satisfy their obligations under New York law.
Central to the Complaint’s presentation is a detailed examination of how the defendants
acted or failed to act in response to allegations raised against twenty-five individual accused
priests who are not named as defendants.1 These case histories are based on information that the
Attorney General obtained from a review of files maintained by the Diocese, which document in
1
The Complaint does not name the individual priests as defendants because this action is brought by
the Attorney General in her capacity as the regulator of charities and not-for-profit organizations in
New York. The Attorney General asserts claims that focus on failures by the Diocese and its leaders
to meet their obligations under New York law in responding to the sexual abuse allegations, not on
the individual alleged perpetrators of such abuse.
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detail the degree to which senior Diocesan staff knew of and abided specific accusations levied
against individual priests. The case histories demonstrate how the Diocese systematically
circumvented its own policies and procedures for addressing allegations of improper sexual
conduct. These practices operated to conceal the identities of accused priests in the Diocese and
the actual nature and scope of the allegations against them. The Diocese’s practices also failed
to support and validate the experiences and testimony of those complainants who came forward
in reliance upon the Diocese’s announced concern for victims and its promise to comply with
USCCB policy.
In March 2018, the Diocese released for the first time a list of individual priests, living
and deceased, who were alleged to have sexually abused a minor. The Diocese has expanded the
list three times. As of November 2019, the last updated list, the Diocese had identified seventy-
eight priests by name as “Diocesan Priests with Substantiated Allegations of Abuse of a Minor,”
and provided basic biographic details in its list such as date of birth, whether the priest was the
subject of multiple (but unenumerated) allegations, and the priest’s “status,” such as “removed
from ministry,” or “case to be sent to Rome.” See List of all diocesan and extern priests with
substantiated allegations of sexual abuse of a minor or vulnerable adult, available at
https://www.buffalodiocese.org/documents//Diocesan_Substantiate_11-5-19.pdf (last accessed
on November 16, 2020).
According to the Diocese’s website, the designation of abuse allegations as
“substantiated” means that one or more of the following criteria has been met:
1. the accused priest has admitted the allegation(s) against him;
2. the Diocese’s Independent Review Board found the allegation(s) to be credible
and substantiated following an internal investigation by an independent
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professional investigator;
3. the allegation(s) was/ were corroborated by witnesses, additional victims,
documents, emails, photos, texts, or by another source such as law enforcement;
4. the accused was convicted of a crime in connection with the allegation(s); or
5. the accused had been laicized or permanently removed from ministry as a result
of the allegation(s).
See id. Deceased priests are included on the list only where they were the subject of more than
one allegation. Id. The Diocese’s public disclosures do not provide any details regarding the
nature of allegations asserted against identified priests, the basis for the Diocese’s determination
that those allegations were substantiated or when the Diocese made that determination.
The twenty-three priests that the Attorney General proposes to identify by name in her
Complaint are each included on the Diocese’s public list of credibly-accused. Many of the
priests have also been separately identified in public statements by their victims or the media.
Six of the priests discussed in the Complaint are deceased. The Attorney General has not
independently investigated the conduct that these men are accused of and states explicitly in the
Complaint that: “The allegations in this pleading should in no way should be interpreted as
finding that these priests sexually abused minors. Under the U.S. Constitution, those accused of
crimes are entitled to due process and a presumption of innocence.” Compl. at 20 n.9. The
Attorney General has not identified, and does not propose to name, two priests discussed in the
Complaint who are not included in the Diocese’s published list.
Disclosure of the names of priests and details concerning their alleged sexual abuse
presents a specific evidentiary issue for consideration by this Court. The Attorney General’s
information about alleged sexual abuse of children by priests has been obtained primarily from
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the Diocese in the form of Diocesan records and testimony by Diocesan leaders. As the
Complaint alleges in detail, the Diocese failed in its responsibilities to conduct thorough and
appropriate investigations of allegations of sexual abuse. These failures of process and
investigation resulted in lengthy delays, a failure to make factual determinations, and failure to
refer priests credibly accused of sexual abuse to Rome for laicization. These failures could also
affect the trustworthiness of the factual determinations and decisions that the Diocese did make.
ARGUMENT
New York law recognizes a “broad presumption that the public is entitled to access to
judicial proceedings and court records.” Mosallem v. Berenson, 76 A.D.3d 345, 348 (1st Dep’t
2010). “Especially when issues of major public importance are involved, the interests of the
public as well as the press in access to court records ‘weigh heavily[.]’” Danco Laboratories,
Ltd. v. Chemical Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 8 (1st Dep’t 2000). New York
courts have applied these principles to prohibit sealing court records on the basis of potential
embarrassment or damage to reputation alone, e.g., Mosallem, 76 A.D.3d. at 351-52, and to
require a specific showing of plausible and actual harm where one party to a litigation requests
anonymity, see GCVAWCG-DOE v. Roman Catholic Archdiocese of New York, No. 56145/2020,
69 Misc.3d 648, 2020 WL 5083559, at *3 (Sup. Ct. Westchester Cty. Aug. 27, 2020).
The Complaint in this action addresses issues of profound public importance that have
already received significant public attention throughout the State. The Diocese has publicly
identified each of the accused priests that the Attorney General proposes to name in the
Complaint and has publicly reported that many of those priests either have been or will be
referred to the Vatican for potential canonical trial of their alleged conduct. New York’s
standards for judicial transparency require that publicly-available information regarding the
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identity of accused priests known to the defendants be fully incorporated into the Complaint and
this litigation.
A. Identification of the Accused Priests by Name Will Ensure Transparency
and Serve the Interests of the Public and the Abuse Complainants.
The Attorney General’s claims in this action seek, in part, to ensure a full and frank
examination of the Diocese’s past failure to exercise reasonable care in investigating and
responding to allegations of sexual abuse. After nearly twenty years of the Diocese’s continued
failure to address and resolve allegations of abuse, or to provide public validation to individual
complainants brave enough to come forward, only full transparency in this action concerning the
Diocese’s treatment of specific priests and allegations will permit complete consideration of the
institutional conduct that the Complaint seeks to address. Proof of that conduct must be both
general and specific; general as to the policies and procedures of the Diocese, and specific as to
how those policies and procedures were applied in the case of each accused priest.
Disclosure of the names of credibly accused priests, and the details of their alleged
conduct, is necessary to ensure public transparency as this case proceeds — in discovery, in
pretrial filings, and at trial. The details of the complaints and information that were presented to
the defendants for review, and the investigation undertaken to determine the accuracy of
allegations of sexual abuse of minors, are critical to a full understanding of those failures and to
careful consideration of the Attorney General’s requested relief. The Diocese itself has already
acknowledged the need for such candor, characterizing its own decision to disclose the names of
credibly-accused priests as a process undertaken “to honor [its] charge of transparency” and to
bring “healing, support, and some measure of closure to survivors of abuse.”2
2
Diocesan statement on recent media reports about sexual abuse in the Church, available at
https://www.buffalodiocese.org/media-reports-statement (last visited November 16, 2020).
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Citing the actual names of already-identified alleged abusers, together with the facts
surrounding those allegations, is also important to the priests’ alleged victims. It provides
validation to complainants who have already come forward. Disclosure is also likely to
encourage other complainants to provide additional evidence concerning both the priests’
conduct and the Diocese’s response when presented with complaints. As the Church and experts
have observed, most sexual abuse of children by priests is not reported out of shame, fear or
guilt.3 A complainant’s willingness to come forward is increased if the allegations of other
alleged victims have been validated through investigation and public action. See, e.g., Marci A.
Hamilton, The Time Has Come for a Restatement of Child Sex Abuse, 79 Brooklyn L. Rev. 397,
405 (2014) (describing a “waterfall of disclosures that never would have happened” without
legislation in Minnesota to permit previously time-barred civil claims). Beyond facilitating the
litigation process, significant therapeutic and restorative value can be achieved for complainants
through public disclosure and reporting.
B. The Court Should Provide the Accused Priests with Notice and the
Opportunity to Assert Any Legal Objections to Disclosure.
In evaluating the Attorney General’s proposed disclosure, the Court must strike a balance
between the public interest in a Complaint that fully discloses the details of alleged abuse
reported to the Diocese and the interests of individual priests that the Diocese has publicly
3
See Marci A. Hamilton, The Waterloo for the So-Called Church Autonomy Theory: Widespread
Clergy Abuse and InstitutionalCover-Up, 29 Cardozo L. Rev. 225, 227 (2007) (“Institutional
Cover-Up”) (citing statistics that show approximately 90% of child abuse victims will not come
forward); see also USCCB Statement by the Bishops’ Committees on Women in Society and in the
Church and Marriage and Family, Walk in the Light: A Pastoral Response to Child Sex Abuse, at
“One Scenario of Abuse” (1995) (“Sometimes there is a threat of punishment or injury to others if
the child tells anyone. Then, when feelings of shame and guilt surface, children are isolated. They
are too terrified to seek help. Revealing a ‘family secret’ to the outside world is unthinkable.”),
available at https://www.usccb.org/committees/laity-marriage-family-life-youth/walk-light-
pastoral-response-child-sexual-abuse. Even where individual victims attempt to report abuse, those
attempts are often discouraged by parents and church leaders. Institutional Cover-Up, at 228-29.
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identified as credibly-accused. The procedure proposed by this motion would provide a fair
process for the priests to challenge their identification by name while recognizing the profound
public importance of the events and decisions described in the Complaint, including the
Diocese’s systematic effort to evade publicly-stated Church standards for the investigation and
prevention of abuse.
Matthews v. Eldridge, 424 U.S. 319 (1976), sets forth a useful three-part analysis for
evaluating whether sufficient protections have been provided prior to the deprivation of a
constitutionally-protected individual interest. That analysis considers:
1. The private interest affected by government action;
2. The risk of an erroneous deprivation of rights, together with the value of
additional safeguards; and
3. The state interest involved.
424 U.S. at 335. The Attorney General asks this Court to adopt a procedure which will allow the
parties, advocates for survivors of sexual abuse by priests, priests accused of sexual abuse, the
Attorney General, and this Court to consider a disclosure solution which would satisfy the
requirements of this litigation and the Matthews v. Eldridge standard, if applicable.
The Attorney General makes her request informed by the Supreme Court of
Pennsylvania’s decision in In re Fortieth Statewide Investigative Grand Jury (II), 197 A.3d 712
(Pa. 2018), which addressed privacy and reputational concerns in connection with a public report
that described allegations of clergy abuse across six Pennsylvania dioceses. In 2018, a grand
jury convened by the Pennsylvania Attorney General issued a report pursuant to Pennsylvania’s
Investigating Grand Jury Act that named more than 300 clergy members as abusive “predator
priests.” The report presented individual profiles for each of the accused priests, including their
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assignment history and a detailed summary of their alleged misconduct, but did not present any
allegations for criminal prosecution. Most of the priests identified in the report had never been
prosecuted for their alleged crimes and — unlike in the Attorney General’s Complaint — many
had never been publicly identified as the subject of abuse complaints. A small subset of eleven
priests named in the report sought permanent redaction of their names, citing a fundamental right
to “personal reputation,” a right recognized under the Pennsylvania state constitution, and
arguing that the State’s accusation of criminal conduct in a grand jury report without any
accompanying criminal charge and without a hearing prior to being so named caused grievous
injury to their reputation and inadequate process through which to counter the report’s
allegations. The Pennsylvania Supreme Court concluded that the grand jury’s report should be
permanently redacted to remove the names of the objecting priests because there was “a
substantial risk that [the priests’] reputations will be irreparably and illegitimately impugned.” In
re Fortieth Statewide Investigative Grand Jury (II), 197 A.2d at 724. The Court acknowledged
that its decision would be “unsatisfying to the public and to the victims of the abuse,” but it
concluded that the Investigating Grand Jury Act had failed to secure the due process rights for
objecting priests required by Pennsylvania’s Constitution. Id.
The circumstances in this action differ in several significant ways from the Pennsylvania
case. First, the New York Constitution does not afford a “fundamental constitutional
entitlement” to reputation, as the Pennsylvania Constitution does; the Pennsylvania court found
damage to a priest’s reputation alone sufficed to make out a claim for the violation of that right.
See In re Fortieth Statewide Investigating Grand Jury (I), 190 A.3d 560, 575 (Pa. 2018).
Second, the legal proceeding here is materially different from the grand jury proceeding in
Pennsylvania, which was subject to particular statutory requirements under that state’s law; the
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Attorney General’s civil claims in this action do not rely on or include a grand jury report of
findings against priests absent charges and a proceeding. Id. at 568-71. Third, the Attorney
General does not present her allegations in a criminal context or in the form of an indictment.
Fourth, the Attorney General proposes to name only those priests in the Complaint who have
been identified by the Diocese on its published list of credibly-accused priests. Last, and most
important, the Attorney General is proposing a process in advance of disclosure to address
whether any accused priests discussed in the Complaint have a legal basis for protecting their
identity, by giving them an opportunity to be heard before they are identified.
REQUESTED RELIEF
The Attorney General’s Complaint in this action includes close review of a deeply
troubling failure to address allegations of misconduct by twenty-three priests that the Diocese of
Buffalo now publicly identifies as credibly accused of sexual abuse. Recognizing that the
inclusion of even already-published names in a complaint filed on behalf of the State of New
York, together with details of alleged misconduct that have never previously been disclosed,
represents publication of a different form, the Attorney General has taken the precaution of
temporarily shielding the names of those priests through the use of pseudonyms.
By this motion, the Attorney General seeks leave to file the Complaint in a form that
includes the actual names of the twenty-three already-identified priests that it discusses, which
will ensure the judicial transparency required by New York law and help bring about healing and
closure for abuse complainants. To protect the rights and interests of the priests who would be
identified if this motion is granted, the Attorney General respectfully asks this Court to:
(i) convene a hearing, or such other process as the Court deems appropriate,
to determine whether the names of twenty-three priests discussed in the
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Attorney General's Complaint may be publicly disclosed in this context;
(ii) provide notice of the hearing or such process to any affected priest or
interested member of the public and require any person who objects to the
Attorney General's proposed disclosure to come forward and identify why
a legal basis exists to prohibit such disclosure;
(iii) issue an order upon completion of such hearing or process that authorizes
disclosure in this litigation of the name of any priest already identified by
the Diocese as credibly accused of abuse, including without limitation in
the Complaint, subsequent pleadings and proceedings; and
(iv) grant such other and further relief as the Court deems just and proper.
The Attorney General is prepared to present a more detailed proposal to the Court for the
notice, submission and hearing process at the Court's direction.
Dated: November 23, 2020
New York, New York
LETITIA JAMES
Attorney General of the
State ofNew Yo
By:
n
Ch rities Bureau Chief
28 iberty Street
Ne York, New York 10005
Tel. (212) 416-8401
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FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, By LETITIA JAMES, Attorney General of the Index No. State of New York, Plaintiff, -against- DIOCESE OF BUFFALO, RICHARD J. MALONE, EDWARD M. GROSZ, and EDWARD B. SCHARFENBERGER, in his capacity as Apostolic Administrator for the Diocese of Buffalo, Defendants. MEMORANDUM OF LAW IN SUPPORT OF THE ATTORNEY GENERAL’S MOTION FOR AUTHORIZATION TO IDENTIFY CREDIBLY-ACCUSED PRIESTS LETITIA JAMES ATTORNEY GENERAL OF THE STATE OF NEW YORK Meghan Faux, Chief Deputy Attorney General for Social Justice James Sheehan, Charities Bureau Chief Emily Stern, Co-Chief of Enforcement Section, Charities Bureau Daniel Roque, Assistant Attorney General Steven Shiffman, Assistant Attorney General Catherine Suvari, Assistant Attorney General Attorneys for Plaintiff State of New York i 1 of 15 FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 TABLE OF CONTENTS Table of Authorities ....................................................................................................................... iii Introduction .....................................................................................................................................1 Factual Background .........................................................................................................................2 Argument ........................................................................................................................................6 A. Identification of the Accused Priests by Name Will Ensure Transparency and Serve the Interests of the Public and the Abuse Complainants. ..............................7 B. The Court Should Provide the Accused Priests with Notice and the Opportunity to Assert Any Legal Objections to Disclosure. .........................................8 Requested Relief ...........................................................................................................................11 ii 2 of 15 FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 TABLE OF AUTHORITIES Cases Danco Laboratories, Ltd. v. Chemical Works of Gedeon Richter, Ltd., 274 A.D.2d 1 (1st Dep’t 2000 .................................................................................................6 GCVAWCG-DOE v. Roman Catholic Archdiocese of New York, No. 56145/2020, 69 Misc.3d 648, 2020 WL 5083559 (Sup. Ct. Westchester Cty. Aug. 27, 2020) ..................6 In re Fortieth Statewide Investigative Grand Jury (I), 190 A.3d 560 (Pa. 2018).................... 10-11 In re Fortieth Statewide Investigative Grand Jury (II), 197 A.3d 712 (Pa. 2018) .................... 9-10 Matthews v. Eldridge, 424 U.S. 319 (1976) ....................................................................................9 Mosallem v. Berenson, 76 A.D.3d 345 (1st Dep’t 2010) ................................................................6 Other Authorities United States Conference of Catholic Bishops, Statement by the Bishops’ Committees on Women in Society and in the Church and Marriage and Family, Walk in the Light: A Pastoral Response to Child Sex Abuse (1995) ...............................................................8 n.3 Marci A. Hamilton, The Time Has Come for a Restatement of Child Sex Abuse, 79 Brooklyn L. Rev. 397 (2014) ..............................................................................................8 Marci A. Hamilton, The Waterloo for the So-Called Church Autonomy Theory: Widespread Clergy Abuse and Institutional Cover-Up, 29 Cardozo L. Rev. 225 (2007) ......................................................................................... 8 n.3 iii 3 of 15 FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 INTRODUCTION The Attorney General’s Complaint in this action confronts a nearly two decade-long failure by the Diocese of Buffalo (the “Diocesan Corporation” or the “Diocese”) to comply with standards established by the U.S. Conference of Catholic Bishops (“USCCB”) to address and prevent the sexual abuse of minors. Among other things, this failure denied the Diocese’s parishioners and the public at large the transparency and accountability for the problem of clergy sexual abuse that the Diocese had promised when it adopted those standards in 2002. The Complaint names as defendants the Diocese and the two most senior leaders who were responsible for implementing its protective policies, Bishop Emeritus Richard J. Malone and former Auxiliary Bishop Edward Grosz. The Complaint alleges that the defendants evaded key provisions of the Diocese’s publicly-stated standards and ignored the Diocesan Corporation’s own requirements for the investigation, review, and remediation of alleged sexual abuse by Diocesan priests, in direct defiance of the USCCB’s public commitment to reform. These failures are illustrated in the Complaint through close review of the Defendants’ response to allegations of misconduct by twenty-five individual priests. Twenty-three of the priests discussed in the Complaint have been publicly identified in the Diocese’s own published list of credibly accused priests. The Attorney General brings this motion simultaneously with the filing of her Complaint to obtain a ruling at the outset of this litigation permitting the identification by name of those accused priests who are already publicly identified by the Diocese as credibly accused of improper sexual conduct. Pending such a determination, the Attorney General has taken the precaution of referring to these priests by pseudonyms in the Complaint. The Attorney General believes that disclosure of the names of the credibly-accused priests is necessary to a full, fair 1 4 of 15 FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 and transparent presentation of evidence and that no legal basis exists to conceal their identities in this litigation. However, in recognition of the interests of the non-party priests, the Attorney General proposes that the Court hold a hearing to consider objections to the identification by name in the Complaint of the twenty-three priests discussed therein that have already been publicly identified as credibly accused of sexual abuse. To complete this review, the Attorney General proposes a procedure similar to the approach crafted by a Pennsylvania court that examined concerns raised during the 2018 publication of a Pennsylvania grand jury report on clergy sexual abuse. Here, as in Pennsylvania, hearing and review of the Attorney General’s proposed disclosure will balance the rights and interests of the State, the victims, and the public with the rights and interests of individual priests who might be affected by personal identification in the Attorney General’s pleading and in the litigation to follow. For the reasons discussed below, the Attorney General believes that the relief requested by this motion is in the public interest and consistent with well-established principles of judicial transparency in New York law. FACTUAL BACKGROUND The Attorney General serves as the principal regulator of New York nonprofit corporations, including entities that elect to incorporate under the provisions of the Religious Corporations Law (“RCL”). Through this role, the Attorney General bears a unique authority and responsibility to enforce civil standards in New York law that require the Diocese of Buffalo to adequately address institutional harms of the scale and magnitude of the clergy sex abuse crisis. In September 2018, the Attorney General commenced an investigation of the Diocese’s response to the sexual abuse crisis that sought to ensure compliance with the standards of care and fiduciary loyalty that apply to all New York charities, including the Diocesan Corporation 2 5 of 15 FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 and its leadership. The Investigation examined thousands of pages of business records produced by the Diocese and included sworn examination testimony by Bishop Emeritus Malone and the senior staff leader who reported to him, former Auxiliary Bishop Grosz. The information drawn from those efforts confirmed an astonishing failure to properly address allegations of clergy sexual misconduct against children despite clear — and publicly-touted — standards adopted by the Diocesan Corporation to protect children. The Complaint in this action illustrates the specific actions and inaction by the defendants that violated multiple provisions of the Not-for-Profit Corporation Law (“N-PCL”) and Estates, Powers and Trusts Law (“EPTL”) through a review of individual priest personnel records taken directly from Diocese files. Because the Attorney General brings her claims to obtain remedial and injunctive relief against the Diocese as an institution and two of its former bishops as fiduciaries charged with ensuring its proper administration, the Complaint focuses exclusively on the existence of abuse allegations and their treatment by the Diocese. For reasons reviewed at length in the Complaint, the Attorney General contends that the nature of the allegations of abuse made to the Diocese and the responses recorded in its own files establish that the defendants failed to satisfy their obligations under New York law. Central to the Complaint’s presentation is a detailed examination of how the defendants acted or failed to act in response to allegations raised against twenty-five individual accused priests who are not named as defendants.1 These case histories are based on information that the Attorney General obtained from a review of files maintained by the Diocese, which document in 1 The Complaint does not name the individual priests as defendants because this action is brought by the Attorney General in her capacity as the regulator of charities and not-for-profit organizations in New York. The Attorney General asserts claims that focus on failures by the Diocese and its leaders to meet their obligations under New York law in responding to the sexual abuse allegations, not on the individual alleged perpetrators of such abuse. 3 6 of 15 FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 detail the degree to which senior Diocesan staff knew of and abided specific accusations levied against individual priests. The case histories demonstrate how the Diocese systematically circumvented its own policies and procedures for addressing allegations of improper sexual conduct. These practices operated to conceal the identities of accused priests in the Diocese and the actual nature and scope of the allegations against them. The Diocese’s practices also failed to support and validate the experiences and testimony of those complainants who came forward in reliance upon the Diocese’s announced concern for victims and its promise to comply with USCCB policy. In March 2018, the Diocese released for the first time a list of individual priests, living and deceased, who were alleged to have sexually abused a minor. The Diocese has expanded the list three times. As of November 2019, the last updated list, the Diocese had identified seventy- eight priests by name as “Diocesan Priests with Substantiated Allegations of Abuse of a Minor,” and provided basic biographic details in its list such as date of birth, whether the priest was the subject of multiple (but unenumerated) allegations, and the priest’s “status,” such as “removed from ministry,” or “case to be sent to Rome.” See List of all diocesan and extern priests with substantiated allegations of sexual abuse of a minor or vulnerable adult, available at https://www.buffalodiocese.org/documents//Diocesan_Substantiate_11-5-19.pdf (last accessed on November 16, 2020). According to the Diocese’s website, the designation of abuse allegations as “substantiated” means that one or more of the following criteria has been met: 1. the accused priest has admitted the allegation(s) against him; 2. the Diocese’s Independent Review Board found the allegation(s) to be credible and substantiated following an internal investigation by an independent 4 7 of 15 FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 professional investigator; 3. the allegation(s) was/ were corroborated by witnesses, additional victims, documents, emails, photos, texts, or by another source such as law enforcement; 4. the accused was convicted of a crime in connection with the allegation(s); or 5. the accused had been laicized or permanently removed from ministry as a result of the allegation(s). See id. Deceased priests are included on the list only where they were the subject of more than one allegation. Id. The Diocese’s public disclosures do not provide any details regarding the nature of allegations asserted against identified priests, the basis for the Diocese’s determination that those allegations were substantiated or when the Diocese made that determination. The twenty-three priests that the Attorney General proposes to identify by name in her Complaint are each included on the Diocese’s public list of credibly-accused. Many of the priests have also been separately identified in public statements by their victims or the media. Six of the priests discussed in the Complaint are deceased. The Attorney General has not independently investigated the conduct that these men are accused of and states explicitly in the Complaint that: “The allegations in this pleading should in no way should be interpreted as finding that these priests sexually abused minors. Under the U.S. Constitution, those accused of crimes are entitled to due process and a presumption of innocence.” Compl. at 20 n.9. The Attorney General has not identified, and does not propose to name, two priests discussed in the Complaint who are not included in the Diocese’s published list. Disclosure of the names of priests and details concerning their alleged sexual abuse presents a specific evidentiary issue for consideration by this Court. The Attorney General’s information about alleged sexual abuse of children by priests has been obtained primarily from 5 8 of 15 FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 the Diocese in the form of Diocesan records and testimony by Diocesan leaders. As the Complaint alleges in detail, the Diocese failed in its responsibilities to conduct thorough and appropriate investigations of allegations of sexual abuse. These failures of process and investigation resulted in lengthy delays, a failure to make factual determinations, and failure to refer priests credibly accused of sexual abuse to Rome for laicization. These failures could also affect the trustworthiness of the factual determinations and decisions that the Diocese did make. ARGUMENT New York law recognizes a “broad presumption that the public is entitled to access to judicial proceedings and court records.” Mosallem v. Berenson, 76 A.D.3d 345, 348 (1st Dep’t 2010). “Especially when issues of major public importance are involved, the interests of the public as well as the press in access to court records ‘weigh heavily[.]’” Danco Laboratories, Ltd. v. Chemical Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 8 (1st Dep’t 2000). New York courts have applied these principles to prohibit sealing court records on the basis of potential embarrassment or damage to reputation alone, e.g., Mosallem, 76 A.D.3d. at 351-52, and to require a specific showing of plausible and actual harm where one party to a litigation requests anonymity, see GCVAWCG-DOE v. Roman Catholic Archdiocese of New York, No. 56145/2020, 69 Misc.3d 648, 2020 WL 5083559, at *3 (Sup. Ct. Westchester Cty. Aug. 27, 2020). The Complaint in this action addresses issues of profound public importance that have already received significant public attention throughout the State. The Diocese has publicly identified each of the accused priests that the Attorney General proposes to name in the Complaint and has publicly reported that many of those priests either have been or will be referred to the Vatican for potential canonical trial of their alleged conduct. New York’s standards for judicial transparency require that publicly-available information regarding the 6 9 of 15 FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 identity of accused priests known to the defendants be fully incorporated into the Complaint and this litigation. A. Identification of the Accused Priests by Name Will Ensure Transparency and Serve the Interests of the Public and the Abuse Complainants. The Attorney General’s claims in this action seek, in part, to ensure a full and frank examination of the Diocese’s past failure to exercise reasonable care in investigating and responding to allegations of sexual abuse. After nearly twenty years of the Diocese’s continued failure to address and resolve allegations of abuse, or to provide public validation to individual complainants brave enough to come forward, only full transparency in this action concerning the Diocese’s treatment of specific priests and allegations will permit complete consideration of the institutional conduct that the Complaint seeks to address. Proof of that conduct must be both general and specific; general as to the policies and procedures of the Diocese, and specific as to how those policies and procedures were applied in the case of each accused priest. Disclosure of the names of credibly accused priests, and the details of their alleged conduct, is necessary to ensure public transparency as this case proceeds — in discovery, in pretrial filings, and at trial. The details of the complaints and information that were presented to the defendants for review, and the investigation undertaken to determine the accuracy of allegations of sexual abuse of minors, are critical to a full understanding of those failures and to careful consideration of the Attorney General’s requested relief. The Diocese itself has already acknowledged the need for such candor, characterizing its own decision to disclose the names of credibly-accused priests as a process undertaken “to honor [its] charge of transparency” and to bring “healing, support, and some measure of closure to survivors of abuse.”2 2 Diocesan statement on recent media reports about sexual abuse in the Church, available at https://www.buffalodiocese.org/media-reports-statement (last visited November 16, 2020). 7 10 of 15 FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 Citing the actual names of already-identified alleged abusers, together with the facts surrounding those allegations, is also important to the priests’ alleged victims. It provides validation to complainants who have already come forward. Disclosure is also likely to encourage other complainants to provide additional evidence concerning both the priests’ conduct and the Diocese’s response when presented with complaints. As the Church and experts have observed, most sexual abuse of children by priests is not reported out of shame, fear or guilt.3 A complainant’s willingness to come forward is increased if the allegations of other alleged victims have been validated through investigation and public action. See, e.g., Marci A. Hamilton, The Time Has Come for a Restatement of Child Sex Abuse, 79 Brooklyn L. Rev. 397, 405 (2014) (describing a “waterfall of disclosures that never would have happened” without legislation in Minnesota to permit previously time-barred civil claims). Beyond facilitating the litigation process, significant therapeutic and restorative value can be achieved for complainants through public disclosure and reporting. B. The Court Should Provide the Accused Priests with Notice and the Opportunity to Assert Any Legal Objections to Disclosure. In evaluating the Attorney General’s proposed disclosure, the Court must strike a balance between the public interest in a Complaint that fully discloses the details of alleged abuse reported to the Diocese and the interests of individual priests that the Diocese has publicly 3 See Marci A. Hamilton, The Waterloo for the So-Called Church Autonomy Theory: Widespread Clergy Abuse and InstitutionalCover-Up, 29 Cardozo L. Rev. 225, 227 (2007) (“Institutional Cover-Up”) (citing statistics that show approximately 90% of child abuse victims will not come forward); see also USCCB Statement by the Bishops’ Committees on Women in Society and in the Church and Marriage and Family, Walk in the Light: A Pastoral Response to Child Sex Abuse, at “One Scenario of Abuse” (1995) (“Sometimes there is a threat of punishment or injury to others if the child tells anyone. Then, when feelings of shame and guilt surface, children are isolated. They are too terrified to seek help. Revealing a ‘family secret’ to the outside world is unthinkable.”), available at https://www.usccb.org/committees/laity-marriage-family-life-youth/walk-light- pastoral-response-child-sexual-abuse. Even where individual victims attempt to report abuse, those attempts are often discouraged by parents and church leaders. Institutional Cover-Up, at 228-29. 8 11 of 15 FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 identified as credibly-accused. The procedure proposed by this motion would provide a fair process for the priests to challenge their identification by name while recognizing the profound public importance of the events and decisions described in the Complaint, including the Diocese’s systematic effort to evade publicly-stated Church standards for the investigation and prevention of abuse. Matthews v. Eldridge, 424 U.S. 319 (1976), sets forth a useful three-part analysis for evaluating whether sufficient protections have been provided prior to the deprivation of a constitutionally-protected individual interest. That analysis considers: 1. The private interest affected by government action; 2. The risk of an erroneous deprivation of rights, together with the value of additional safeguards; and 3. The state interest involved. 424 U.S. at 335. The Attorney General asks this Court to adopt a procedure which will allow the parties, advocates for survivors of sexual abuse by priests, priests accused of sexual abuse, the Attorney General, and this Court to consider a disclosure solution which would satisfy the requirements of this litigation and the Matthews v. Eldridge standard, if applicable. The Attorney General makes her request informed by the Supreme Court of Pennsylvania’s decision in In re Fortieth Statewide Investigative Grand Jury (II), 197 A.3d 712 (Pa. 2018), which addressed privacy and reputational concerns in connection with a public report that described allegations of clergy abuse across six Pennsylvania dioceses. In 2018, a grand jury convened by the Pennsylvania Attorney General issued a report pursuant to Pennsylvania’s Investigating Grand Jury Act that named more than 300 clergy members as abusive “predator priests.” The report presented individual profiles for each of the accused priests, including their 9 12 of 15 FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 assignment history and a detailed summary of their alleged misconduct, but did not present any allegations for criminal prosecution. Most of the priests identified in the report had never been prosecuted for their alleged crimes and — unlike in the Attorney General’s Complaint — many had never been publicly identified as the subject of abuse complaints. A small subset of eleven priests named in the report sought permanent redaction of their names, citing a fundamental right to “personal reputation,” a right recognized under the Pennsylvania state constitution, and arguing that the State’s accusation of criminal conduct in a grand jury report without any accompanying criminal charge and without a hearing prior to being so named caused grievous injury to their reputation and inadequate process through which to counter the report’s allegations. The Pennsylvania Supreme Court concluded that the grand jury’s report should be permanently redacted to remove the names of the objecting priests because there was “a substantial risk that [the priests’] reputations will be irreparably and illegitimately impugned.” In re Fortieth Statewide Investigative Grand Jury (II), 197 A.2d at 724. The Court acknowledged that its decision would be “unsatisfying to the public and to the victims of the abuse,” but it concluded that the Investigating Grand Jury Act had failed to secure the due process rights for objecting priests required by Pennsylvania’s Constitution. Id. The circumstances in this action differ in several significant ways from the Pennsylvania case. First, the New York Constitution does not afford a “fundamental constitutional entitlement” to reputation, as the Pennsylvania Constitution does; the Pennsylvania court found damage to a priest’s reputation alone sufficed to make out a claim for the violation of that right. See In re Fortieth Statewide Investigating Grand Jury (I), 190 A.3d 560, 575 (Pa. 2018). Second, the legal proceeding here is materially different from the grand jury proceeding in Pennsylvania, which was subject to particular statutory requirements under that state’s law; the 10 13 of 15 FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 Attorney General’s civil claims in this action do not rely on or include a grand jury report of findings against priests absent charges and a proceeding. Id. at 568-71. Third, the Attorney General does not present her allegations in a criminal context or in the form of an indictment. Fourth, the Attorney General proposes to name only those priests in the Complaint who have been identified by the Diocese on its published list of credibly-accused priests. Last, and most important, the Attorney General is proposing a process in advance of disclosure to address whether any accused priests discussed in the Complaint have a legal basis for protecting their identity, by giving them an opportunity to be heard before they are identified. REQUESTED RELIEF The Attorney General’s Complaint in this action includes close review of a deeply troubling failure to address allegations of misconduct by twenty-three priests that the Diocese of Buffalo now publicly identifies as credibly accused of sexual abuse. Recognizing that the inclusion of even already-published names in a complaint filed on behalf of the State of New York, together with details of alleged misconduct that have never previously been disclosed, represents publication of a different form, the Attorney General has taken the precaution of temporarily shielding the names of those priests through the use of pseudonyms. By this motion, the Attorney General seeks leave to file the Complaint in a form that includes the actual names of the twenty-three already-identified priests that it discusses, which will ensure the judicial transparency required by New York law and help bring about healing and closure for abuse complainants. To protect the rights and interests of the priests who would be identified if this motion is granted, the Attorney General respectfully asks this Court to: (i) convene a hearing, or such other process as the Court deems appropriate, to determine whether the names of twenty-three priests discussed in the 11 14 of 15 FILED: NEW YORK COUNTY CLERK 11/23/2020 11:24 AM INDEX NO. 452354/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/23/2020 Attorney General's Complaint may be publicly disclosed in this context; (ii) provide notice of the hearing or such process to any affected priest or interested member of the public and require any person who objects to the Attorney General's proposed disclosure to come forward and identify why a legal basis exists to prohibit such disclosure; (iii) issue an order upon completion of such hearing or process that authorizes disclosure in this litigation of the name of any priest already identified by the Diocese as credibly accused of abuse, including without limitation in the Complaint, subsequent pleadings and proceedings; and (iv) grant such other and further relief as the Court deems just and proper. The Attorney General is prepared to present a more detailed proposal to the Court for the notice, submission and hearing process at the Court's direction. Dated: November 23, 2020 New York, New York LETITIA JAMES Attorney General of the State ofNew Yo By: n Ch rities Bureau Chief 28 iberty Street Ne York, New York 10005 Tel. (212) 416-8401 12 15 of 15