PORTLAND, Ore. (CN) - 9th Circuit Chief Judge Alex Kozinski asked whether the victims of a sex-abuse scandal that rocked the Portland Archdiocese are trying to exact "another pound of flesh" by defending the release of clergy personnel files of priests who never abused them.
A federal bankruptcy judge who approved a $75 million settlement of sex-abuse claims and a financial reorganization plan for the Portland Archdiocese in 2007 later ordered the release of the personnel files of two priests known in court documents as Father M and Father D.
Though the original suit never named the two priests as abusers, a review of their files in the discovery process revealed that both priests faced accusations of sexual abuse decades earlier.
"What interests do your clients have in this case?" Kozinski asked attorney Erin Olsen, who represented some victims in the original suit against the archdiocese, none of whom accused Father M or Father D of molesting them.
"They were abused, and the information in the files shows the abuse," Olsen replied, adding that records are evidence of the archdiocese's long-standing practice to conceal abuse from the public.
Kozinski continued to press the issue during oral arguments on Wednesday. "But what do they have at stake now - vengeance?" he asked. "They have already won their case."
Olsen replied: "They want to hold the priests and the archdiocese accountable."
Judge Carlos Bea interjected. "Hold accountable?" he asked. "You've got the money. What do you mean? This is a journalistic phrase. What does that really mean in a legal setting?"
Olsen said: "It's about more than money. It's about exposure..."
Bea interrupted again. "You already have that," he said.
Olsen countered that "their concealment continues."
Kozinski pointing out that her clients had already won a $75 million settlement, and that the personnel files of all of the priests who were accused of abusing her clients had already been posted on the Internet. "Is this about another pound of flesh?" he asked.
Father M and Father D were not accused of molesting any of Olsen's clients, the chief judge continued.
"It strikes me as vengeful, disruptive and pain-producing," he said of Olson's position.
Facing $135 million in sexual-abuse claims that might have forced the church to sell off property and close schools outside of a settlement, Portland experienced the nation's first bankruptcy proceeding of a Catholic archdiocese.
To date, eight U.S. Catholic dioceses and the Oregon Province of the Jesuits have filed for bankruptcy protection as the result of child-abuse lawsuits.
Judge Sandra Ikuta noted the lack of documentation that Chief Judge Elizabeth Perris, of the U.S. Bankruptcy Court in Eugene, Ore., had weighed the public interest in knowing that Father M and Father D encountered sexual-abuse claims in the past.
Olsen said Perris had evaluated the concerns of each person who had objected to having their files released and determined that "their actions, as abusers were part of the pattern and practice of concealment by the archdiocese." Ultimately the judge concluded that their desire to avoid being tainted by scandal did not outweigh the public's right to know about the accusations made against the two priests, Olsen said.
Kozinski then contemplated the precedent set by releasing confidential files of people not party to a lawsuit just because they happen to work for one of the parties. "Just because these are bad guys, they are not parties," Kozinski said, adding that "they can't defend themselves."
Olsen would not follow the tangent. "These are not innocents," she said. "They were agents of the archdiocese."
Michael Merchant, an attorney for the priests seeking to overturn the disclosure order, said the bankruptcy judge gave too much credit to an "amorphous public interest," and that the current rules for balancing the public interest did not do enough to protect the rights of people who are not associated with the underlying case.
"There is no public interest in releasing Father M and Father D's records because they were not parties to the case," Merchant said.
The judges focused on the process by which Father M and Father D learned that their personnel records would be released, and whether the priests had a chance to challenge the decision.
Merchant said he had told Father M and Father D that the document release would include their files - a fact he says he learned in a meeting of the many lawyers involved in the bankruptcy proceeding.
"There was no provision of notice for telling people whose records were going to be released," Merchant said.
Before releasing her 37-page ruling in June 2009, Perris had called for arguments against opening the records of priests not specifically named in the bankruptcy proceeding and the tort action brought by Olsen's clients.
If his clients had been allowed to intervene sooner, Merchant said they could have sought appellate relief. And if the priests had been notified before discovery began, they could have fought to exclude their records. At that point, any actions leading to the discovery request were taken by the archdiocese.
Merchant also noted that the time to control what is produced in discovery is before documents are released - not after.
"No matter how many times she [Olsen] says 'child sexual abuse,' it doesn't change the fact that they deserve to have their reputations defended," Merchant said in closing.
"What remedy do these priests have?" he asked.