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New York archdiocese: ‘Vos estis’ Hubbard records can’t be turned over in sex abuse lawsuit

Are 'Vos estis' records protected by the First Amendment? The New York archdiocese says they are.

Cardinal Timothy Dolan and Bishop Howard Hubbard at a March 12, 2012 press conference in Albany, New York. Credit: MMRDad/flickr

The Archdiocese of New York argued in an Albany courtroom on Friday that records compiled during a Vatican-ordered investigation into a retired bishop are protected by the First Amendment, and can not be turned over in response to a subpoena in a sexual abuse lawsuit.

The case raises questions about the confidentiality of the Vos estis lux mundi process, promulgated by Pope Francis in 2019 as a mechanism for investigating allegations of abuse or misconduct against bishops.

'An exclusively canonical process'

New York’s Cardinal Timothy Dolan was directed in early 2021 to investigate claims against retired Albany Bishop Howard Hubbard, who has been accused of multiple instances of sexual abuse against minors, and who admitted last year that he transferred several priests to new parish ministries without contacting police, after they were accused of sexual abuse.

A woman who claims she was sexually abused by Hubbard and other priests while she was a teenager attempted to subpoena archdiocesan records of the Vos estis investigation into Hubbard, which amount to more than 1,400 pages, many of which allegedly detail incidents or allegations of sexual abuse or cover-up.

But in a court filing last month, the archdiocese said it had already turned over some records, and that “the Vos estis investigation is part of an exclusively canonical process related to the Catholic Church’s right to select its ministers, which process is privileged from disclosure.”

“The production and review of such documents would necessarily excessively entangle the Court in matters of internal church governance and call into question the Archdiocese and Cardinal Dolan’s internal processes in exclusively ecclesiastical matters governed by religious law,” the archdiocesan filing said.

“The Archdiocese possesses First Amendment protection of its religious processes undertaken pursuant to Catholic law,” the filing argued, and “religious leaders of an organized religion should not be forced to disclose their internal judicial processes, the ultimate goal of which is to determine whether a cleric may remain in ministry.”

“Civil courts must refrain from adjudicating a plaintiff’s claim if the court would unconstitutionally impede the church’s authority to manage its own affairs,” the archdiocese added.

'Where is the justice?'

JoAnn Harri, a lawyer for the plaintiff, told The Pillar last week that her client’s request is reasonable and important — Harri said she believes that archdiocesan records could help shed light on serious sexual abuse allegations.

“We served a subpoena back in March on the Archdiocese of New York… we knew about Vos estis. They did provide us with numerous documents, but they included what’s known as a privilege log — that contains [a list] of what they’re claiming are documents protected by the First Amendment.”

“We are not trying to pierce their attorney-client privilege. But the archdiocese says over 1,400 records are protected under the First Amendment. And we’ve made a motion to compel the production of those documents in the privilege log.”

“As far as the First Amendment is concerned, the case law is really clear that [the First Amendment] really deals with interfering with a canonical process, or interfering with the Church itself, and what they do.”

Harri said that since New York courts have permitted plaintiffs to subpoena the proceedings of diocesan review boards, they should make the same decision when it comes to the investigation of bishops.

“In every case involving a priest, we have been able to get their personnel and disciplinary files, if they are a named perpetrator. But here you have a situation where you have a victim of not just a priest, but a bishop, and all of the sudden, she’s not entitled to that.”

“So if the First Amendment would preclude those disciplinary files from being released — and of course they’d redact the names of victims — but if it would preclude that, then that would mean that a victim of a bishop has less rights to discovery than the victim of a parish priest.”

“So where is the justice there?”


'The chilling effect'

Ahead of its Friday appearance in court, the Archdiocese of New York submitted an affidavit from its judicial vicar, Msgr. Robert Hospodar.

Hospodar, a canonist, wrote that Dolan had appointed him in 2021 to manage the investigation into Hubbard.

But the priest claimed there hadn’t been much of an investigation since then.

After the Vatican ordered a probe into allegations against Hubbard, “the preliminary investigation was paused and Cardinal Dolan was granted permission to postpone the preliminary investigation,” because of the lawsuits against Hubbard, Hospodar wrote.

Still, the priest acknowledged that he had received files on Hubbard.

“The reports received by Cardinal Dolan were provided to me for preservation in preparation and anticipation of the active canonical preliminary investigation as described by Vos Estis. I received and compiled documents in the discharge of my mandate from Cardinal Dolan, for the purpose of Vos Estis, and not for any other reason.”

But Hospodar said that if a judge ordered those files turned over, the canonical process would be thrown off track.

“Should the Archdiocese be ordered by this Court to produce its canonical investigation file, the chilling effect on ecclesiastical decision-making in the present and any future investigations will be incalculable. In my opinion, the integrity of any such ecclesiastical process would be jeopardized if the materials assembled for an ecclesiastical inquiry were to be subject to disclosure and scrutiny in civil litigation,” the priest wrote.

'Something has been going on'

For her part, Harri said she isn’t looking to change the canonical process. She just thinks her client has a right to review Church files on Hubbard.

“We are not looking to interfere with the canonical process, we have no concern with that. We are looking for his sexual misconduct file, which is in the Vos estis file. And they’re claiming that all of this is communication with the Vatican, and we dispute that more than 1,400 pages are their communications with the Vatican,” Harri told The Pillar.

The lawyer mentioned a previous Vos estis investigation undertaken by Dolan, which looked into allegations against former Brooklyn bishop Nicholas DiMarzio. In that investigation, the New York archdiocese contracted former FBI director Louis Freeh to investigate claims against DiMarzio.

“We assume that they must have done something similar to that for Bishop Hubbard. They claim they’ve stayed the investigation, but they’ve already collected 1,400 pages, so something has been going on.”

The lawyer acknowledged that not all the files are relevant to her client’s lawsuit against Hubbard. That’s why she’s asked for a judge to look over the files and decide which ones she can have.

“We're asking for in camera review. The judge makes a determination whether these have anything to do with [her client’s lawsuit.] Obviously if it's strictly just communication with the pope, that would be excluded under the First Amendment, we don't object to that.”

“We just don't think more than 1,400 pages is all communication with the pope,” Harri added.

In response to questions on that matter, the Archdiocese of New York told The Pillar it would have no comment beyond its publicly available court filings.


The 'pontifical secret'

The Albany County Supreme Court has 60 days to issue a ruling on the issue. Harrie said she expects the judge will order a review of the archdiocesan files before making a decision about whether her client can review them.

But the lawyer said she believes that the archdiocese is not respecting the orders of Pope Francis on the issue.

She pointed to a 2019 Vatican rescript that abolished the “pontifical secret” in cases pertaining to the sexual abuse of minors.

The Vatican text mentioned that while files involving abuse cases should be treated with “confidentiality,” that practice “shall not prevent the fulfillment of the obligations laid down in all places by civil laws, including any reporting obligations, and the execution of enforceable requests of civil judicial authorities.”

Harri told The Pillar she believes that rescript pertains to her case.

“Does no one pay attention to the pope?” she asked The Pillar.

The archdiocesan filings did not directly address Vatican-required confidentiality.  

Instead, they argued that the files shouldn’t be turned over because the Vos estis investigation into Hubbard is ongoing.

“The confidentiality of this process is especially important here because the Archbishop’s investigation is ongoing,” an August filing argued.

“If this Court requires the Archdiocese to produce the documents at issue, it would be granting Plaintiff, civil litigants, and civil courts a license to interfere, influence, and even exploit, if not destroy, a Church's ongoing, internal, and constitutionally protected religious activity. Were that to occur, it would undoubtedly chill protected Free Exercise and Establishment clause rights in ways the Constitution prohibits and the Supreme Court forbids.”


While nearly a dozen probes have been started in the U.S. since the Vos estis policy was published, It is not clear how often Vos estis records have been subpoenaed since.

A Tennessee judge ruled in August against a claim from the Diocese of Knoxville, in which the diocese argued it could not turn over records related to Vos estis investigation of Bishop Rick Stika because they were protected by the clergy-penitent confidentiality privilege recognized in Tennessee law.

Stika and the Knoxville diocese argued in a brief that any documents related to an investigation made under the aegis of Pope Francis’ 2019 Vos estis lux mundi protocols are “protected internal church matters and documents.”

“Such matters, including their existence or non-existence, are protected under both the First Amendment to the U.S. Constitution and the clergy-penitent privilege codified in” Tennessee law, the Knoxville diocese claimed in a July 22 brief.

At a court hearing this summer, Stika’s attorney again argued that asking about a Vos estis investigation is “similar to asking a priest whether or not someone has come for confession.”

But Judge Jerome Melson, citing the Vatican’s 2019 rescript on secrecy, disagreed.

He told the court that “based upon the apostolic letter presented,” he would “respectfully deny” the diocesan plea.

Some canonists have suggested that another question might be more relevant to requests for Vos estis records — Who owns the Vos estis documents in the first place?

While bishops and archbishops have been ordered to lead Vos estis investigations, those appointments are generally understood to be personal, and the probes are not directly projects of the dioceses they lead.

But it is not clear whether any bishops have yet argued that they can’t turn over records because the documents belong to the Vatican’s Congregation for Bishops, or whether courts would accept that claim — especially in cases when diocesan officials are appointed to help with the investigations, as was the case in New York.

Harri told The Pillar that she’s not sure whether a ruling in her lawsuit would have effect in other states where Vos estis investigations are taking place.

“I don’t know what impact it would have…presumably it could have an impact on dioceses across the country, but a lot depends on state-by-state laws, too. So we’ll have to see how the court handles this.

But while Harri was cautious about too much specuation, the archdiocese was direct about its belief that a ruling to hand over records would have far-reaching effects.

“The chilling and pernicious effect of disrupting internal Church governance and invading the administration of Church law is undeniable,” an archdiocesan filing claimed.

“The Court should deny the motion to compel as violative of the Archdiocese s rights pursuant to the First Amendment of the United States Constitution and Article 1 of the New York State Constitution and well-settled federal and state law.”


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