MILWAUKEE — Judge Susan V. Kelley ruled Thursday that depositions of Archbishop Rembert G. Weakland, Bishop Richard J. Sklba and a former priest, Daniel Budzynski, will remain sealed and may not be made public. Her ruling was in response to a motion filed by Jeff Anderson and Associates, the law firm representing claimants in the United States Bankruptcy Court for the Eastern District of Wisconsin where Kelley is presiding over the Chapter 11 reorganization of the Milwaukee Archdiocese.
In denying the motion to unseal documents and depositions, Kelley noted that she had previously authorized the “rule 2004 examinations,” or depositions, which were taken last October and November, for three reasons:
- the potential loss of evidence due to age or infirmity of the witnesses (Archbishop Weakland is 85; Bishop Sklba is 76 and Budzynski is 84)
- the testimony would be used to value claims and determine whether they were objectionable
- the identifications of any additional sexual abuse survivors prior to the claims bar date to enable them to file timely claims.
With that Aug. 12, 2011, ruling as background, Kelley said there is no basis to order the public disclosure of the transcripts and documents now – the depositions have been taken, the bar date has run, and the three claim objections by the archdiocese were heard and are on appeal.
Further, she said no benefit to advancing the Chapter 11 case is served by unsealing these materials, and there is the risk that even with careful redaction of the documents, identification of survivors of sexual abuse would result, requiring the court to restrict “scandalous” documents.
While the documents are sealed from public view and individual committee members are not permitted access to the deposition transcripts and exhibits, she clarified that they are available to attorneys, including counsel for the committee.
In arguing that the documents be unsealed, Anderson said it would give the public a right to access. While he promised that all private information from the documents would be redacted and “no private data would be out there,” Kelley questioned the practicality of that, agreeing with the archdiocese’s argument “that there cannot be perfect redaction.”
Attorney Francis LoCoco of Whyte Hirschboeck Dudek, representing the Archdiocese of Milwaukee, began his arguments against release of the information saying “nothing has changed since last summer when we worked on these issues,” noting the court and attorneys had spent hours crafting a balance between the need for confidentiality and the public’s right to know.
“The court held a very extensive hearing – it was almost an hour – and I recall that at the end of the hearing, the court said, among other things, ‘some of this is happy, some of this unhappy, that’s the sign of striking the right balance.’ Your honor, you couldn’t have used better words than you did, because what happened? Nobody challenged the ruling, the order was entered, no appeals were taken, we moved along to try to keep the case moving. What else happened? The court set parameters, including that these depositions were to remain confidential….”
In arguing against the public release of the information, LoCoco called the information in the depositions “scandalous” under federal bankruptcy rules. He said these materials are offensive, embarrassing and should not be made public.
“Your honor, granting this motion would create an enormous distraction. It would cost enormous amounts of time and money and it would not advance the case,” said LoCoco.
He also questioned the practicality of removing all identities from the documents. “Where do you stop redacting?” he said, adding that there are many abuse survivors – those not represented by Anderson’s law firm.
“Many abuse survivors live in mortal fear that their identities will be made known, he said.
With his voice breaking as he spoke, LoCoco apologized for getting emotional, but said protecting abuse survivors is a responsibility he takes seriously and “I don’t want to be stuck with the responsibility of trying to make it perfect, knowing that it can’t be” he said, referring to the role he would play in making sure all names and identifiable information would be redacted.
He also called it presumptuous on Anderson’s part to speak on behalf of all abuse survivors, noting that there are 220 individuals – those not represented by Anderson’s firm – who did not join the motion to make the depositions public.
Also arguing against the release of the depositions was James Murray, attorney for Archbishop Weakland.
He noted that Archbishop Weakland is not a defendant in this bankruptcy case. In a previous deposition, taken in 2008, Archbishop Weakland was open and forthcoming. Yet, despite assurances by those taking the deposition that his testimony would be held confidential, it was posted on the Internet. He would similarly be humiliated if last fall’s deposition is also all out there to consume, argued Murray, imploring the judge “not to change the rules.”
In announcing her ruling, Kelley said, “There is no reason that advances this legal case to unseal those depositions and there is a risk in unsealing them that the identity and the things that happened to abuse survivors who want things to remain private, there is a risk that that becomes public or known, and since there is really no benefit to opening them and the risk is that we could hurt people if we open them, I’m not going to open them.”
Pleased with the judge’s ruling on keeping the motions sealed, the archdiocese released a brief statement.
“We know from experience that most abuse survivors do not want to be identified and even the slight possibility of that happening creates for them great fear and anxiety. The unsealing of these records does absolutely nothing to advance the goals of the Chapter 11 proceeding, which is to financially reorganize the archdiocese in order to reach resolution with its creditors,” it read.
Also that day, Kelley approved the creditor committee’s request to employ Marci Hamilton as special constitutional and federal statutory law council. In approving Hamilton’s role with the case, Kelley capped her fees at an hourly rate of $600 per hour and $25,000 total – lower than the $35,000 estimate proposed by the creditors’ attorney – without further order of the court. Hamilton, a constitutional law specialist, is being brought on to focus on issues related to the cemetery trust, according to attorney Gillian Brown representing the official committee of unsecured creditors. The creditors committee is arguing that the archdiocese’s cemetery trust and perpetual care funds are property of the debtor’s estate.
Money to compensate Hamilton will be paid through the bankruptcy fee application process.
