The ROMAN CATHOLIC ARCHBISHOP OF LOS ANGELES, Petitioner,
v.
SUPERIOR COURT of Los Angeles County, Respondent;
The People, Real Party in Interest.
Does 1 and 2, Petitioners,
v.
Superior Court of Los Angeles County, Respondent;
The People, Real Party in Interest.
Court of Appeal, Second District, Division Three.
*214 Hennigan, Bennett & Dorman, J. Michael Hennigan, Donald F. Woods, Jr., and Jeffrey S. Koenig, Los Angeles, for Petitioner The Roman Catholic Archbishop of Los Angeles.
Law Offices of Guzin & Steier and Donald H. Steier, Los Angeles, for Petitioners Doe 1 and Doe 2.
O'Melveny & Myers and Charles C. Lifland, Los Angeles, for Monsignor Thomas J. Green as Amicus Curiae on behalf of Petitioners.
No appearance for Respondent.
Steve Cooley, District Attorney (Los Angeles), and Lael Rubin, William Hodgman, Brentford J. Ferreira and Patrick D. Moran, Deputy District Attorneys, for Real Party in Interest.
KLEIN, P.J.
INTRODUCTION
This proceeding arises out of a grand jury investigation into allegations that two Roman Catholic priests, petitioners Doe 1 and Doe 2 (sometimes hereafter referred to as the Priests), sexually assaulted children while they worked for petitioner Roman Catholic Archbishop of Los Angeles, a Corporation Sole (hereafter referred to as the Archdiocese). In seeking to quash grand jury subpoenas duces tecum, petitioners raise issues that require a balance of the rights of religious belief and practice with the rules of the criminal justice system.
As the California Supreme Court noted in connection with this state's evidentiary privilege for clergy-penitent communications (Evid.Code, §§ 1030-1034), "the statutory privilege must be recognized as basically an explicit accommodation by the secular state to strongly held religious tenets of a large segment of its citizenry." (In re Lifschutz (1970)
The Los Angeles County Grand Jury subpoenaed various documents from the Archdiocese which purportedly would allow the grand jury to determine whether to indict the Priests. Petitioners objected to disclosure of the subpoenaed documents, primarily relying on the freedom of religion clauses in the federal and California Constitutions and on California's evidentiary privileges. Some of petitioners' *215 objections were sustained, but the great majority of them were overruled. Petitioners seek to reverse the adverse rulings. With the exception of a single document, we affirm the rulings ordering the subpoenaed materials to be turned over to the grand jury.
PROCEDURAL BACKGROUND
In June and July 2002, the Los Angeles County Grand Jury served subpoenas duces tecum on the Archdiocese's custodian of records, seeking documents relating to child sexual abuse allegedly committed by certain Roman Catholic priests. Except for routine attorney-client communications, the Archdiocese turned over the requested documents. However, several priests and the Archdiocese immediately filed motions to quash the subpoenas. As a result, none of the documents has been turned over to the grand jury.
The parties to this proceeding, the petitioners, the Priests and the Archdiocese, and the real party in interest, the District Attorney of Los Angeles County, stipulated to the appointment of Retired Judge Thomas Nuss as referee (hereinafter, referee) to resolve substantive issues raised by the motions to quash.
On July 15, 2002, the referee concluded the subpoenas were not defective for failing to meet the affidavit requirements set forth in Code of Civil Procedure sections 1985, subdivision (b) (affidavit shall be served with subpoena duces tecum showing good cause and materiality) and 1987.5 (service of subpoena duces tecum is invalid without affidavit).
On July 29, 2002, petitioners sought a writ of mandate from this court vacating the referee's order denying their motions to quash. We issued an order to show cause. After briefing and oral argument, we held a California grand jury has the power to issue a subpoena duces tecum and that such a subpoena does not require a good cause affidavit. (M.B. v. Superior Court (2002)
On June 25, 2004, the referee quashed all the grand jury subpoenas in response to the United States Supreme Court's decision in Stogner v. California (2003)
On June 30, 2004, the People served the two grand jury subpoenas, one for Doe 1 and one for Doe 2, at issue in this writ proceeding.
On July 9, 2004, Does 1 and 2 moved to quash the new subpoenas. The Archdiocese followed with its own motion to quash.
On September 7, 2004, the referee issued a decision which substantially rejected petitioners' motions to quash. Out of the approximately 285 subpoenaed documents challenged by petitioners below, the referee sustained 53 objections and ordered the remaining documents turned over to the grand jury. Of the 53 sustained objections, one was based on the attorney-client privilege (Evid.Code, § 954), two were based on the clergy-penitent privilege (Evid.Code, §§ 1033-1034), and 50 were based on the physician-patient privilege (Evid.Code, § 1014). The referee *216 stayed disclosure of the documents to enable the parties to seek review.
Thereafter, the Archdiocese filed a petition for writ of mandate in this court seeking to prevent disclosure of 15 documents the referee had ruled could go to the grand jury. The Priests filed their own petition for writ of mandate asking this court to prevent the disclosure of any documents to the grand jury. The petitions were consolidated, an order to show cause was issued, production of documents was stayed, and briefing was obtained from the parties.
An amicus curiae brief from Monsignor Thomas Green, a professor of canon law, was filed in support of petitioners' claims.
FACTUAL BACKGROUND
1. Petitioners' claim the subpoenaed documents cannot be disclosed to grand jury.
Petitioners contend the referee erred in ruling the subpoenaed documents should be disclosed to the grand jury because compliance with the subpoenas would violate constitutional and statutory rules. Petitioners assert a Catholic bishop has a religious obligation to care for the physical, emotional and spiritual well-being of the priests within his diocese. Petitioners argue all the communications arising out of this obligation, including communications with the accused priests and the psychotherapists who treat them, are protected from disclosure by the constitutional right to freedom of religion and by California's psychotherapist-patient and clergy-penitent evidentiary privileges. In support of these claims, petitioners submitted evidentiary declarations, which were opposed by declarations filed by the District Attorney.
2. Petitioners' evidentiary declarations; their reliance on the church's "formation of clergy" doctrine.
In declarations supporting its motion to quash, the Archdiocese asserted that according to Roman Catholic doctrine, bishops are the direct successors of the 12 apostles of Jesus Christ.[2] Under the church's formation of clergy doctrine, a bishop is charged with the responsibility of sanctifying his priests, and is obligated to "care for and treat any emotional, physical, or spiritual problem a priest may be experiencing."[3] In carrying out this obligation, a bishop "may establish detailed boundaries for his priests concerning chastity" and "pass judgment in particular cases concerning the observance of this obligation. The bishop is obliged to intervene and judge inappropriate conduct of any priest and to impose restrictions and penalties as appropriate in his moral judgment." The Archdiocese argued these tasks require "open communications between the bishop and his priests."
A bishop "is permitted to appoint Episcopal vicars. An Episcopal vicar has the same power as a Bishop in the specific type of activity for which he is appointed." The Archbishop in Los Angeles, Cardinal Mahony, has appointed such a vicar, called the Vicar for Clergy, who is obligated to *217 care for the "emotional, physical, psychological and spiritual lives" of the archdiocesan priests. Monsignor Craig Cox, who is both a canon lawyer and the Vicar for Clergy, declared Cardinal Mahony had established policies for the Archdiocese under which accusations of clerical sexual misconduct immediately are investigated. "The involved priest is confronted and is encouraged to discuss whatever problems he is experiencing regarding chastity." "Msgr. Cox states `Based on the fundamental religious relationship between the bishop and his priest, the priest is encouraged to communicate his deepest psychological and sexual issue[s], to undergo psychiatric evaluation and treatment, and to share the results of this therapy with the Vicar and the Bishop. All of this for the purpose of the ongoing formation and sanctification of the priest.'" (Italics added.)
If "a canonical investigation of a boundary violation or accusation of sexual misconduct [is required], the process is conducted in accord with the requirements of Canons 1717-1719"[4] and pursuant to Archdiocesan practice. These Canons require the bishop to inquire carefully either personally or through some acceptable person, about the facts and circumstances and about the imputability of the offense. [¶] . . . [T]o date, the bishops and priests have always understood that these records would be confidential, and files covering these materials would be kept separately from the priest's normal personnel file."
3. The District Attorney's evidentiary declarations.
In an attempt to rebut petitioners' evidentiary claims, the District Attorney submitted declarations from Thomas Doyle, a Roman Catholic priest who is also an expert in canon law.
Fr. Doyle stated it is expected the preliminary investigation, required by Canons 1717-1719, will generate a written record. "The information contained in the record may be sensitive and is to be treated accordingly with due regard for the reputations of those involved. It may however, be licitly and properly disclosed to civil law enforcement agencies if it involves [a] matter as serious as sexual abuse." Fr. Doyle asserted "investigations of child abuse documented by the Archdiocese, through the Vicar for Clergy, which are kept in the `secret archives' (confidential files) can be and have been supplied to law enforcement in other jurisdictions."
4. Referee's final decision on petitioners' claims.
In his final decision, the referee rejected petitioners' claims all the subpoenaed documents had arisen out of the Archbishop's religious obligation to care for the physical, emotional and spiritual well-being of his priests, and, therefore, that disclosing them to the grand jury would violate a constitutional right to freedom of religion, California's evidentiary privileges for clergy-penitent and psychotherapist-patient communications, and various other rules of law.
The referee held the subpoenas violated neither the free exercise clause nor the establishment clause of the federal Constitution. Further, compliance with the subpoenas *218 would not impermissibly burden petitioners' religious beliefs or practice under Employment Div., Ore, Dept. of Human Res. v. Smith (1990)
While the referee found evidence in the record to support the assertion Cardinal Mahony had a religious obligation to care for his priests, he also found the Archdiocese simultaneously had been engaged in the kind of routine investigation any employer would undertake upon learning a trusted employee had been accused of child molestation. In addition, the referee held the clergy-penitent privilege was inapplicable where the communication had been disclosed to a third person.
Regarding the principal remaining issues, the referee concluded the psychotherapist-patient privilege protected some of the subpoenaed documents, that the prosecution of Doe 1 and Doe 2 was not precluded by the United States Supreme Court's statute of limitations ruling in Stogner v. California, supra,
CONTENTIONS
Petitioners' chief contentions are that disclosure of the subpoenaed documents is barred by the First Amendment of the federal Constitution and by the free exercise clause of the California Constitution, as well as by Evidence Code provisions relating to the clergy-penitent and psychotherapist-patient privileges.
Additionally, petitioners contend disclosure of the subpoenaed documents is barred by California's attorney-client and work product privileges; under Stogner v. California, supra,
DISCUSSION
1. Constitutional right to freedom of religion does not bar disclosure of the subpoenaed documents.
Petitioners contend the disputed documents[5] cannot be turned over to the grand jury without violating their right to freedom of religion. In particular, they claim disclosure of the subpoenaed documents will violate the free exercise and establishment clauses of the First Amendment to the federal Constitution, as well as the free exercise clause of the California Constitution. For the reasons explained below, petitioners' contention is without merit.
a. General principles.
"The Religion Clauses of the First Amendment provide: `Congress shall *219 make no law respecting an establishment of religion, or prohibiting the free exercise thereof.' The first of the two Clauses, commonly called the Establishment Clause, commands a separation of church and state. The second, the Free Exercise Clause, requires government respect for, and noninterference with, the religious beliefs and practices of our Nation's people." (Cutter v. Wilkinson (2005) ___ U.S. ___,
Judicial decisions regarding the religion clauses of the First Amendment are subject to de novo review. (See Rubin v. City of Burbank (2002)
b. No violation of the free exercise clause of the federal Constitution.
Petitioners' contention disclosure of the subpoenaed documents would violate the free exercise clause of the federal Constitution is defeated by Smith.
(1) Smith's new rule for evaluating free exercise claims rests on "neutral laws of general applicability."
In Smith, supra,
In Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993)
Although Smith involved criminal conduct, the case is not limited to such situations. As Smith commented, "The *220 government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, `cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.' [Citation.] To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is `compelling' permitting him, by virtue of his beliefs, `to become a law unto himself,' [citation] contradicts both constitutional tradition and common sense." (Smith, supra,
Smith is applicable here and defeats petitioners' contention the First Amendment's free exercise clause bars disclosure of the subpoenaed documents.
(2) The "ecclesiastical abstention" doctrine does not apply.
Petitioners, however, argue an exception to the Smith rule applies, namely, the ecclesiastical abstention doctrine. This doctrine grew out of the so-called "church property cases." However, the church property cases, as exemplified by the ones cited by the Archdiocese, are inapposite because they involve internal church disputes whose resolution crucially depend on interpretations of religious doctrine.[6]
However, the case at bar is not, at its core, an internal church dispute. It is a criminal investigation into suspected child molestation allegedly committed by Catholic priests. Smith itself characterized the church property decisions as cases in which the government was impermissibly "lend[ing] its power to one or the other side in controversies over religious authority or dogma." (Smith, supra,
(3) The "ministerial exception" doctrine does not apply.
Petitioners also argue the Smith rule does not defeat their free exercise claim because the so-called "ministerial exception" doctrine applies. Petitioners' reliance on this exception is misplaced.
The ministerial exception doctrine is based on the notion a church's appointment of its clergy, along with such closely related issues as clerical salaries, assignments, working conditions and termination of employment, is an inherently religious function because clergy are such an integral *221 part of a church's functioning as a religious institution. (See, e.g., Werft v. Desert Southwest Annual Conference (9th Cir.2004)
(4) Smith applies to these grand jury subpoenas.
The Archdiocese contends Smith is inapplicable because there is no legislative act at issue, and because subpoenas are not neutral laws of general application. This argument misconstrues the notion of generally applicable neutral laws. "A law is not neutral towards religion if its `object . . . is to infringe upon or restrict practices because of their religious motivation. . . .' [Citation.] A law is not generally applicable if it `in a selective manner impose[s] burdens only on conduct motivated by religious belief. . . .'" (Catholic Charities of Sacramento, Inc. v. Superior Court (2004)
In Matter of Grand Jury Subpoena (Chinske) (D.Mont.1991)
We similarly conclude the grand jury subpoenas here do not violate the free exercise clause of the federal Constitution because they are based on a valid and neutral law of general applicability that will have, at most, an incidental effect on the Archdiocese's practice of keeping confidential the communications arising out of the Archbishop's formation of clergy obligation of caring for his priests.
c. No violation of the establishment clause of the federal Constitution.
Petitioners contend disclosure of the subpoenaed documents is barred by *222 the establishment clause of the federal Constitution. This claim is without merit because the primary effect of enforcing the subpoenas will not require the government either to interfere with the internal workings of the Archdiocese, or to choose between competing religious doctrines.
"The Establishment Clause provides that `Congress shall make no law respecting an establishment of religion. . . .' [Citation.] In Lemon v. Kurtzman,
The Archdiocese asserts that, under Lemon, "[t]he constitutional question can be simply put: Does the state action (here it is a subpoena) interfere with a religious practice?" The Archdiocese answers this question as follows "The effect of these subpoenas is to interfere with the bishop's pastoral and episcopal relationship with his priests in need, to destroy any serious pastoral discussion of deeply personal and intimate concerns of the priests regarding their celibacy, sexuality and emotional and psychological needs, and to `foster an "excessive government entanglement with religion."' [Citation.] More specifically, these subpoenas interfere directly with ecclesiastical policy by mandating the disclosure of information that, under Roman Catholic practice, is held in strict confidence."
The Archdiocese asserts the closest Supreme Court decision to the case at bar is NLRB v. Catholic Bishop of Chicago (1979)
However, the core issue in the case at bar is whether children were molested by priests who worked for the Archdiocese, an issue having no comparable religious doctrine aspect.
*223 Also pertinent here is Society of Jesus of New England v. Com. (2004)
This case is analogous to Society of Jesus of New England v. Com., supra,
d. "Hybrid rights" exception to Smith not applicable.
Petitioners contend disclosure of the subpoenaed documents would violate the First Amendment because the so-called "hybrid rights" exception to the Smith rule applies in this case. The Archdiocese argues "the neutrality rule of Smith does not apply" here because "the challenged state conduct interferes with the free exercise of religion and causes excessive entanglement." This claim is without merit.
As a doctrinal matter, the nature and scope of the so-called hybrid exception to Smith is rather nebulous. "The Smith court developed the hybrid claim exception in an effort to explain several past decisions which invalidated on free exercise grounds laws that appeared to be neutral and generally applicable. [Citation.]" (Gary S. v. Manchester School Dist. (D.N.H.2003)
However, even assuming a hybrid rights exception to Smith, it would not apply to this case because the Archdiocese merely has combined a free exercise claim with a meritless establishment clause claim. (See Catholic Charities of Sacramento, Inc. v. Superior Court, supra,
e. California free exercise claim is meritless.
Petitioners contend the Smith rule does not apply to a free exercise claim under the California Constitution and that we should apply, instead, the pre-Smith compelling state interest test. However, we conclude that even pursuant to the former strict scrutiny test, under which governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest, disclosure of the subpoenaed documents would not violate petitioners' rights. Therefore, we need not decide whether Smith applies to California's free exercise clause.
California's free exercise clause (Cal. Const., art. I, § 4.) provides "Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State."
The Smith case was decided in 1990. In 2004, the California Supreme Court was faced in Catholic Charities of Sacramento, Inc.v. Superior Court, supra,
Saying that in the proper case it would not have hesitated "to declare the scope and proper interpretation of the California Constitution's free exercise clause," Catholic Charities concluded it did not need to do so because the pre-Smith strict scrutiny test[10] had been *225 met. Catholic Charities involved the claim by a religiously-connected nonprofit public benefit corporation that it had been impermissibly burdened by the Women's Contraception Equity Act (WCEA), a law requiring certain health and disability contracts to cover prescription contraceptives. The Supreme Court held "Assuming for the sake of argument the WCEA substantially burdens a religious belief or practice, the law nevertheless serves a compelling state interest and is narrowly tailored to achieve that interest. [¶] The WCEA serves the compelling state interest of eliminating gender discrimination." (Catholic Charities of Sacramento, Inc. v. Superior Court, supra, 32 Cal.4th at pp. 563-564,
We reach a similar conclusion here. As the following case law demonstrates, the grand jury's investigation into suspected child molestation serves a compelling state interest and is narrowly tailored to achieve that interest.
In Branzburg v. Hayes (1972)
With a nod to Branzburg, many federal cases since have held that compelled testimony before a grand jury in violation of a witness's religion does not constitute a free exercise violation. We rely on federal cases in this context because (1) before Smith was decided, both the federal and the California free exercise clauses were analyzed under the compelling state interest test (see Walker v. Superior Court (1988)
These federal cases have assumed, for the purpose of decision, that the witness's objection to testifying was both sincerely held and religiously grounded. Each case concluded the ensuing burden on the witness's religious belief was outweighed by the compelling state interest in obtaining grand jury testimony. (See In re Grand Jury Empaneling of Special Grand Jury (3d Cir.1999)
The Priests also argue that because the "documents pertain to confidential communications of a most private nature between a Roman Catholic bishop and the priests he ordained," their disclosure "will chill the free exercise of their religion, and inevitably and impermissibly alter the relationship [between] Catholic bishops and priests and the way they practice their religion."
However, several jurisdictions have rejected similar arguments and we agree with their reasoning. (See People v. Campobello (2004)
Hence, we conclude that even if the pre-Smith compelling state interest test governs a California free exercise claim, that test is met here.
f. Conclusions regarding federal and state constitutional contentions.
We are not persuaded by any of petitioners' freedom of religion arguments. We conclude disclosure of the subpoenaed documents is not barred by the First Amendment to the federal Constitution, or by the free exercise clause of California's Constitution. Having so determined, we next examine the two principal statutory grounds petitioners rely on to prevent disclosure of the subpoenaed documents to the grand jury, the clergy-penitent privilege and the psychotherapist-patient privilege.
2. Documents in question do not satisfy criteria for application of clergy-penitent privilege, irrespective of the formation of clergy theory.
Evidence Code section 1032, within the article relating to the clergy-penitent privilege, defines a "penitential communication" as "a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member's church, *227 denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret." (Italics added.)[11]
Petitioners argue the subpoenaed documents constitute privileged penitential communications within the meaning of Evidence Code section 1032 because they were generated in the course of the formation of clergy process during the Archdiocese's interventions to help troubled priests.
Petitioners' contention fails. The penitential communications are not privileged because they were not "made in confidence, in the presence of no third person so far as the penitent is aware," to a cleric who is obligated "to keep those communications secret." (Evid.Code, § 1032.)
a. Statutory scheme is controlling.
"Evidence Code section 911 provides, in relevant part: `Except as otherwise provided by statute: [¶] . . . [¶] (b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing.' This section declares the California Legislature's determination that `evidentiary privileges shall be available only as defined by statute. [Citation.] Courts may not add to the statutory privileges except as required by state or federal constitutional law [citations], nor may courts imply unwritten exceptions to existing statutory privileges. [Citations.]' (Roberts v. City of Palmdale (1993)
"In section 911 of the Evidence Code, the Legislature clearly intended to abolish common law privileges and to keep the courts from creating new nonstatutory privileges as a matter of judicial policy. [Citations.] Thus, unless a privilege is expressly or impliedly based on statute, its existence may be found only if required by constitutional principles, state or federal." (Welfare Rights Organization v. Crisan (1983)
b. Parties' respective burdens of proof.
Ordinarily, "[t]he party claiming [an evidentiary] privilege carries the burden of showing that the evidence which it seeks to suppress is within the terms of the statute." (D.I. Chadbourne, Inc. v. Superior Court (1964)
Here, however, it was ultimately the District Attorney's burden to overcome the presumption of confidentiality.
Evidence Code section 917 provides at subdivision (a) "Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client, physician-patient, psychotherapist-patient, clergy-penitent, husband-wife, sexual assault victim-counselor, or domestic violence victim-counselor relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential." (Italics added.)
Thus, in this context, the privilege-claimant "has the initial burden of proving the preliminary facts to show the privilege applies." (Story v. Superior Court (2003)
c. Standard of review.
We review the trial court's privilege determination under the substantial evidence standard. "`"When the facts, or reasonable inferences from the facts, shown in support of or in opposition to the claim of privilege are in conflict, the determination of whether the evidence supports one conclusion or the other is for the trial court, and a reviewing court may not disturb such finding if there is any substantial evidence to support it [citations]."' [Citation.] Accordingly, unless a claimed privilege appears as a matter of law from the undisputed facts, an appellate court may not overturn the trial court's decision to reject that claim." (HLC Properties, Limited v. Superior Court (2005)
*229 d. Development of California's clergy-penitent privilege.
"The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive clerical consolation in return." (Trammel v. United States (1980)
As noted, California's clergy-penitent privilege is contained in Evidence Code sections 1030-1034. Before these sections were enacted in 1965, the privilege was defined by Code of Civil Procedure section 1881, subdivision (3), which provided "A clergyman, priest or religious practitioner of an established church cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs." (Italics added.) The current statute makes no reference to confessions, and instead provides an evidentiary privilege for "`penitential communication.'" (Evid.Code, § 1032.)
e. For clergy-penitent privilege to attach, requirements of Evidence Code section 1032 must be satisfied.
The central provision of California's clergy-penitent privilege is Evidence Code section 1032, which defines a penitential communication as a confidential communication made to a clergy person who is authorized to hear and obligated to keep secret such communications.
However, even with the privilege centered on a "communication," rather than on a "confession," not every statement made to a member of the clergy is privileged. "In order for a statement to be privileged, it must satisfy all of the conceptual requirements of a penitential communication: 1) it must be intended to be in confidence; 2) it must be made to a member of the clergy who in the course of his or her religious discipline or practice is authorized or accustomed to hear such communications; and 3) such member of the clergy has a duty under the discipline or tenets of the church, religious denomination or organization to keep such communications secret. (§ 1032; 2 Jefferson, Cal. Evidence Benchbook (2d ed.1982) § 39.1, pp. 1405-1407.)" (People v. Edwards, supra, 203 Cal.App.3d at pp. 1362-1363,
f. Petitioners' theory as to why clergy-penitent privilege is applicable.
Mindful of the criteria of Evidence Code section 1032 requiring a communication to be made in confidence, in the presence of no third person, to a member of the clergy who is authorized to hear the communication and who, under the tenets of the church, has a duty to keep said communication secret, the petitioners invoke the Roman Catholic church's formation of clergy doctrine. They presented evidence below showing that pursuant to this religious doctrine, a bishop is charged with the obligation to care for the physical, spiritual, emotional and psychological well-being of the priests within his diocese. Further, the obligation imposed by this doctrine includes intervention with priests who are experiencing problems related to celibacy and sexuality, including an "intervention *230 interview" with the accused priest. The evidence also showed the Los Angeles Archdiocese encouraged priests to discuss such problems with Cardinal Mahony and the Vicar for Clergy.
The Archdiocese argues the challenged subpoenaed documents fall within California's clergy-penitent privilege because they were confidential communications made in the course of troubled-priest interventions, and under the tenets of the Church, Cardinal Mahony and the Vicar for Clergy were authorized to hear the communications and obligated to keep them secret. The Archdiocese also presented evidence the interventions with troubled priests depend on the troubled priests' understanding the communications will be held in confidence within the Church.
g. Subject communications do not meet criteria of Evidence Code section 1032.
Petitioners' theory conflicts with Evidence Code section 1032, which defines a "penitential communication" as "a communication made in confidence, in the presence of no third person so far as the penitent is aware," to a clergy person who must keep the communication secret. (Italics added.)
The record demonstrates the participants in the Archdiocese's troubled-priest interventions knew any communications likely were to be shared with more than one person. According to the Archdiocese's declared policy, priests experiencing psychological and sexual problems were encouraged to discuss those problems with the Archbishop and the Vicar for Clergy. Furthermore, the subpoenaed documents themselves amply demonstrate that communications to and from the individual priests were routinely shared by Cardinal Mahony, whoever happened to be the current Vicar for Clergy, and sometimes other Archdiocese employees as well.
This sharing of information violates Evidence Code section 1032's requirement that the penitent's communication be "made in confidence, in the presence of no third person so far as the penitent is aware," to a cleric who is obligated "to keep those communications secret." The fact both parties to the original communication knew it likely would be transmitted to a third person vitiated ab initio any privilege under Evidence Code section 1032, or, alternatively, constituted a waiver of the privilege under Evidence Code section 912, subdivision (a).[14]
Here, the record demonstrates the District Attorney met the burden of rebutting Evidence Code section 917's presumption of confidentiality by proving the priests were aware the communications were likely to be transmitted to third persons.
The Archdiocese argues these communications were not transmitted "to any third party, that is, someone outside of the bishop *231 (or his alter ego, the Vicar for Clergy)." The contention is unavailing. We reject the argument that just because Cardinal Mahony considers the Vicar for Clergy his surrogate for dealing with troubled priests, there was no violation of Evidence Code section 1032's requirement that the communication be "made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who . . . has a duty to keep those communications secret."
With respect to the various documents here in issue, discussed infra, the referee held none was shielded by the clergy-penitent privilege. Guided by the principles set forth above, we uphold the referee's rulings in their entirety as follows.
Doe 1 # 16-17: This is a letter from Cardinal Mahony to a priest. The referee reasonably could conclude the three numbered subparagraphs of this letter did not constitute penitential communications because they merely notified the priest of certain administrative decisions made by the Archdiocese. In any event, the entire letter is not covered by the clergy-penitent privilege because it was not sufficiently confidential. Not only did the priest know such communications were likely to be shared with the Vicar for Clergy, but the letter itself announced a copy was being sent to the Vicar.
Doe 1 # 50-52: This document consists of a letter from a priest to the Vicar for Clergy, and a cover memorandum from the Vicar transmitting the priest's letter to Cardinal Mahony. The referee reasonably could conclude the letter was not within the clergy-penitent privilege because it merely discussed administrative actions taken by the Archdiocese, asked for legal information and suggested future job assignments. Furthermore, the letter was not sufficiently confidential to constitute a penitential communication because the priest knew it was likely to be shared with a third person. Further, the cover memorandum does not constitute a penitential communication because it does not contain any information transmitted to or from the priest.
Doe 1 # 80: This is a memorandum from the Vicar for Clergy to Cardinal Mahony, reporting on a conversation with a priest. The referee reasonably could conclude this document did not constitute a penitential communication because it merely reported on the priest's cooperation with his therapists, strategized about possible legal problems and discussed church assignments. Moreover, the letter was not within the clergy-penitent privilege because it was not sufficiently confidential in that the parties to the communication knew it likely would be transmitted to a third person.
Doe 1 # 397-400: This document consists of dated file notes containing summaries and verbatim excerpts from other subpoenaed documents:
The December 24, 1986, entry is a summary of Doe 1 # 16-17, which we have concluded does not fall within the clergy-penitent privilege. The same result applies to this summary of that document.
The June 22, 1987, entry is a summary of Doe 1 # 80, which we have concluded does not fall within the clergy-penitent privilege. The same result applies to this summary of that document.
Doe 2 # 13: This is a letter to Cardinal Mahony's predecessor from an official of the Archdiocese then responsible for ministering to troubled priests. The referee reasonably could conclude this document did not constitute a penitential communication because it merely related an event in the priest's personal history.
Doe 2 # 23: This is a memorandum to the file, written by the Vicar for Clergy, *232 reporting on a third person's observation and evaluation of a priest's conduct in a particular situation. The referee reasonably could conclude this document did not constitute a penitential communication because it merely related an event in the priest's personal history.
Doe 2 # 31-32: This is a memorandum from the Vicar for Clergy to Cardinal Mahony. The Archdiocese is only objecting to two paragraphs of this document. The third paragraph merely repeats communications, contained in Doe 2 # 13 and Doe 2 # 23, which we have concluded do not fall within the clergy-penitent privilege. The same result applies to this summary of those documents. The referee reasonably could conclude the information contained in the seventh paragraph of the memorandum did not constitute a penitential communication because it merely related an incident in the priest's personal history. In any event, the entire memorandum was not sufficiently confidential to constitute a penitential communication in that the parties to the communication knew it likely would be transmitted to a third person.
Doe 2 # 34: This is a memorandum from a member of the Vicar for Clergy's staff to the Vicar for Clergy. A copy of the memorandum was transmitted to another member of the Vicar for Clergy's staff. The referee reasonably could conclude the document was not a penitential communication because it merely related incidents in the priest's personal history and offered an evaluation of the priest's situation. The document does not constitute a penitential communication because it does not contain any information transmitted to or from the priest. In any event, the memorandum was not sufficiently confidential to constitute a penitential communication in that the parties to the communication knew it likely would be transmitted to a third person.
Doe 2 # 79: This is a letter from Cardinal Mahony to a priest, responding to a letter from the priest. A copy of Cardinal Mahony's letter was transmitted to the Vicar for Clergy. The letter was not sufficiently confidential to constitute a penitential communication in that the parties to the communication knew it likely would be transmitted to a third person.
Doe 2 # 140: This is a memorandum from the Vicar for Clergy to Cardinal Mahony, advising him of a conversation a member of the Vicar's staff had with a priest and the priest's psychotherapist. The referee reasonably could conclude this document did not constitute a penitential communication because it was merely a status report concerning the priest's progress in psychotherapy. In any event, the document was not sufficiently confidential to constitute a penitential communication in that the parties to the communication knew it likely would be transmitted to a third person.
Doe 2 # 172: This is a memorandum from the Vicar for Clergy to Cardinal Mahony, discussing the establishment of an aftercare program for when a priest completes psychotherapy. The document was not sufficiently confidential to constitute a penitential communication in that the parties to the communication knew it likely would be transmitted to a third person. The document does not constitute a penitential communication because it does not contain any information transmitted to or from the priest.
Doe 2 # 183: This is a letter from the Vicar for Clergy to a priest. The referee reasonably could conclude the document did not constitute a penitential communication because it was largely taken up with administrative matters and any penitential aspect was insignificant. Moreover, the document was not sufficiently confidential to constitute a penitential communication *233 in that the parties to the communication knew it likely would be transmitted to a third person.
Doe 2 # 278: This document consists of excerpts from three of the documents discussed above (Doe 2 # 140, # 172 & # 183), which we have concluded do not fall within the clergy-penitent privilege. The same result applies to these excerpts of those documents.
In sum, we conclude that none of the particular subpoenaed documents challenged by the Archdiocese falls within California's clergy-penitent privilege, and we affirm all of the referee's rulings in this regard.
3. Application of psychotherapist-patient privilege to Archdiocese's claims regarding particular documents; the communication must be "reasonably necessary" to accomplish the purpose for which the psychotherapist was consulted.
a. Controlling statute: Evidence Code section 1012.
California's psychotherapist-patient privilege provides that a "`confidential communication between patient and psychotherapist' means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship." (Evid.Code, § 1012, italics added.)[15]
b. Petitioners' theory why the psychotherapist-patient privilege is applicable to the disputed documents.
Similar to their arguments for the application of the clergy-penitent privilege, petitioners assert that certain communications made in the context of the formation of clergy process are privileged pursuant to the psychotherapist-patient privilege.
Petitioners acknowledge the statutory language requiring that information communicated in psychotherapy not be disclosed to third persons other than those necessary to further the interests of the patient in the consultation. They argue that disclosures to third parties were duly made as reasonably necessary to accomplish the purpose of the psychotherapy, namely, diagnosis and treatment of issues relating to celibacy and sexuality, and therefore remain confidential within the meaning of Evidence Code section 1012.
c. Case law interpretation of Evidence Code section 1012; to remain privileged, disclosure to third persons must be in furtherance of the purpose for which the psychotherapist was consulted, namely, diagnosis and treatment of the patient.
To reiterate, Evidence Code section 1012 defines a confidential communication between patient and psychotherapist as information transmitted between a patient and his or her psychotherapist in the course of that relationship, which information is disclosed "to no third persons other than those who are present to further the *234 interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship." (Italics added.)
The purpose for which a psychotherapist is consulted is set forth in Evidence Code section 1011, which defines "patient" as "a person who consults a psychotherapist or submits to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his mental or emotional condition or who submits to an examination of his mental or emotional condition for the purpose of scientific research on mental or emotional problems." (Italics added.)
There is ample case law illustrating disclosures to third persons which are "reasonably necessary" for the accomplishment of the purpose for which the psychotherapist was consulted. (Evid.Code, § 1012.)
In Grosslight v. Superior Court (1977)
Grosslight held such communications between parent and hospital were shielded by the psychotherapist-patient privilege because they were made "for the purpose of furthering the child's interest in communicating with the psychotherapist and . . . to facilitate the diagnosis and treatment of the child." (Id. at p. 506,
In People v. Gomez (1982)
In Luhdorff v. Superior Court (1985)
In Farrell L. v. Superior Court (1988)
Farrell L. reasoned "the other participants in a group therapy session are those who are present to further the interest of the patient in the consultation . . . or the accomplishment of the purpose for which the psychotherapist is consulted...." (Evid.Code, § 1012.) The language of Evidence Code section 1012 plainly indicates that communications made by patients to persons who are present to further the interests of the patient come[ ] within the privilege. `Group therapy' is designed to provide comfort and revelation to the patient who shares similar experiences and/or difficulties with other like persons within the group. The presence of each person is for the benefit of the others, including the witness/patient, and is designed to facilitate the patient's treatment. Communications such as these, when made in confidence, should not operate to destroy the privilege." (Farrell L., supra,
In In re Pedro M. (2000)
Pedro M. explained "Evidence Code section 1012 itself permits disclosure of a confidential communication between patient and psychotherapist to `those to whom disclosure is reasonably necessary for . . . the accomplishment of the purpose for which the psychotherapist is consulted . . . .' In our view, this would include the juvenile court, where the patient is a delinquent minor who has been properly directed to participate and cooperate in a sex offender treatment program in conjunction with a disposition order placing the minor on probation." (In re Pedro M., supra,
In re Mark L. (2001)
Most recently, in In re Christopher M. (2005)
Christopher M. rejected the argument, explaining the express language of Evidence Code section 1012 "permits disclosure of otherwise privileged communications between patient and psychotherapist to third persons to whom disclosure is reasonably necessary to accomplish the purpose for which the psychotherapist is consulted." (In re Christopher M., supra,
Additionally, we briefly look to case law relating to the physician-patient privilege, which is analogous to the psychotherapist-patient privilege.[16]
In Rudnick v. Superior Court (1974)
Rudnick explained "The `disclosure in confidence [by the physician] of a communication that is protected by [the] (physician-patient privilege) . . . when such disclosure is reasonably necessary for the accomplishment of the purpose for which the . . . physician . . . was consulted, is not a waiver of the privilege.' [Citation.] Thus, for example, if the physician reported to defendants the adverse effects of the drug on his patient so as to obtain assistance in the use of the drug in treating the patient, such disclosure even if consented to by the patient would not constitute a waiver of the privilege." (Rudnick v. Superior Court, supra, 11 Cal.3d at pp. 930-931,
*237 In Blue Cross v. Superior Court (1976)
Guided by these authorities, we review the trial court's determination as to the applicability of the psychotherapist-patient privilege to the challenged documents.
d. Application of Evidence Code section 1012 to Archdiocese's claims regarding particular documents.
With respect to the various documents here in issue, discussed infra, the referee held none was shielded by the psychotherapist-patient privilege. Pursuant to the principles set forth above, we uphold the referee's rulings, with one exception.
Doe 1 # 50-52: This document consists of a letter from a priest to the Vicar for Clergy, and a cover memorandum from the Vicar transmitting the letter to Cardinal Mahony. The Archdiocese only claims that the cover memorandum, which recites a psychotherapist's recommendation about the priest taking a trip abroad, is protected by the psychotherapist-patient privilege. However, the referee reasonably could conclude the transmission of this information to the Archdiocese did not come within the "furtherance of the purpose" rule of Evidence Code section 1012, because any connection to furthering the priest's treatment was too attenuated. Moreover, neither party to this communication was a psychotherapist or someone being supervised by a treating psychotherapist.
Doe 1 # 74: This is a memorandum to the file, by the Vicar for Clergy, reporting on treatment recommendations transmitted by a priest's psychotherapists. This communication does not fall within the "furtherance of the purpose" rule of Evidence Code section 1012 because the Vicar was not involved in rendering psychotherapy to the priest, nor was he being supervised by a treating psychotherapist.
Doe 1 # 80: This is a memorandum from the Vicar for Clergy to Cardinal Mahony, reporting on a conversation the Vicar had with a priest regarding psychotherapy recommendations and future work assignments for the priest. This communication does not fall within the "furtherance of the purpose" rule of Evidence Code section 1012 because neither party to this communication was a psychotherapist or someone being supervised by a treating psychotherapist.
Doe 1 # 397-400: This document consists of dated file notes containing summaries and verbatim excerpts from other subpoenaed documents:
The January 9, 1987, entry is essentially a copy of a psychotherapeutic report prepared by a priest's therapists. The report contains a detailed psycho-sexual history and diagnosis. This communication does not fall within the "furtherance of the purpose" rule of Evidence Code section 1012 because no person at the Archdiocese was involved in rendering psychotherapy to the priest, or was being supervised by a treating psychotherapist.
*238 The June 22, 1987, entry is a summary of Doe 1 # 80, which we have concluded must be produced to the grand jury. The same result applies to this summary of that document.
The September 6, 1996, entry is essentially a copy of a psychotherapeutic evaluation sent by a priest's therapists to a member of the Vicar for Clergy's staff. This evaluation contains both a diagnosis and treatment recommendations. This communication does not fall within the "furtherance of the purpose" rule of Evidence Code section 1012 because the Vicar for Clergy's staff was not involved in rendering psychotherapy to the priest, nor was that staff being supervised by a treating psychotherapist.
The March 5, 1999, entry is essentially a copy of a file note prepared by a member of the Vicar for Clergy's staff, reporting on a discussion he had with a priest. The document describes the priest's self-report concerning his level of functioning, his progress in therapy and his desires concerning future work assignments. This communication does not fall within the "furtherance of the purpose" rule of Evidence Code section 1012 because it does not convey any significant medical information. Moreover, the Vicar for Clergy's staff was not involved in rendering psychotherapy to the priest, nor was it being supervised by a treating psychotherapist.
Doe 2 # 46: This is the sole item as to which we overturn the referee's ruling because the "claimed privilege appears as a matter of law from the undisputed facts." (HLC Properties, Limited v. Superior Court, supra,
Doe 2 # 140: This is a memorandum from the Vicar for Clergy to Cardinal Mahony, advising him of a conversation a member of the Vicar's staff had with a priest and the priest's psychotherapist. Although the document is ostensibly a status report on the priest's progress in therapy, the referee reasonably could conclude it was not covered by the psychotherapist-patient privilege because it did not contain any significant medical information. Moreover, this communication does not fall within the "furtherance of the purpose" rule of Evidence Code section 1012 because neither party to this communication was a psychotherapist or someone being supervised by a treating psychotherapist.
Doe 2 # 172: This is a memorandum from the Vicar for Clergy to Cardinal Mahony, discussing possible aftercare programs for a priest when he completes psychotherapy. The referee reasonably could conclude it was not covered by the psychotherapist-patient *239 privilege because it did not contain any significant medical information. Moreover, this communication does not fall within the "furtherance of the purpose" rule of Evidence Code section 1012 because neither party to this communication was a psychotherapist or someone being supervised by a treating psychotherapist.
Doe 2 # 278: This document consists of dated file notes containing excerpts from two of the documents discussed above. We have concluded that neither Doe 2 # 140 nor Doe 2 # 172 falls within the psychotherapist-patient privilege. The same result applies to these excerpts of those two documents.
In sum, we conclude that, except for Doe 2 # 46, none of the particular subpoenaed documents challenged by the Archdiocese falls within California's psychotherapist-patient privilege, and we affirm all of the referee's rulings in this regard. We order that Doe 2 # 46 not be turned over the grand jury.[17]
4. Attorney-client and attorney work product privileges are inapplicable.
The Archdiocese contends some of the disputed documents should not be disclosed to the grand jury because they are protected either by the attorney-client privilege or by the attorney work product privilege. This claim is without merit.
Noting the referee concluded "the communications at issue [had] been made for multiple purposes," the Archdiocese argues that if any of the disputed documents were generated by "investigations of crime or communications to ascertain the validity of charges, as Respondent court asserts, then they should be protected by the Work Product Doctrine and/or the Lawyer-Client Privilege in addition to the First Amendment and Clergy Privilege."
However, the Archdiocese is confusing two different issues: (1) the referee's conclusion, in connection with his general ruling on the First Amendment and clergy-penitent privilege claims, that the Archdiocese had mixed motives for intervening with priests accused of sexual misconduct, and (2) the referee's rulings on the individual documents at issue in this writ proceeding. None of the remaining disputed documents falls within either the attorney-client or the attorney work product privileges.
Under Evidence Code section 952, the attorney-client privilege protects "information transmitted between a client and his or her lawyer in the course of that relationship . . . and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship." "`In California the [attorney-client] privilege has been held to encompass not only oral or written statements, but additionally actions, signs, or other means of communicating information. . . .'" (Solin v. O'Melveny & Myers (2001)
The Archdiocese's attorney is referred to only twice in the 15 documents that remain in dispute. Doe 2 # 31 refers to particular advice given by the attorney to the Vicar for Clergy, but this reference appears in one of the paragraphs of Doe 2 # 31 that is not being disputed by the Archdiocese. In Doe 1 # 50, the Vicar for Clergy refers to the attorney, but only to mention counsel's presence at a meeting during which Cardinal Mahony made a particular statement. There is no indication Cardinal Mahony's statement reflects any of the attorney's thought processes.
There is no indication any of the 15 disputed documents constitutes information transmitted between the Archdiocese and its lawyer.
Hence, none of the disputed documents falls within either the attorney-client or the attorney work product privilege.
5. The Stogner decision does not invalidate the subpoenas.
In 1993 the Legislature enacted Penal Code section 803, subdivision (g), in order to expand the statute of limitations in child molestation cases. Stogner v. California, supra,
The first claim fails because admissible `other crimes' evidence is not restricted by the statute of limitations. (See Evid.Code, §§ 1101, subd. (b), & 1108.)[19] As the Priests themselves acknowledge, "neither Evidence Code section 1101(b) nor 1108 is a chargeable offense. They are merely rules of admissibility for evidence at trial."
The second claim is unavailing because it misconstrues Stogner, which stated "[W]e agree that the State's interest in prosecuting child abuse cases is an important one. But there is also a predominating constitutional interest in forbidding the State to revive a long-forbidden prosecution. And to hold that such a law is ex post facto does not prevent the State from extending time limits for the prosecution of future offenses, or for prosecutions not yet time barred." (Stogner v. California, supra,
Hence, the Priests' argument already has been firmly rejected by a number of courts which have recognized the difference *241 between extension statutes and revival statutes. (See People v. Terry (2005)
6. No showing District Attorney impermissibly usurped grand jury authority.
The Priests contend none of the subpoenaed documents may be disclosed because the District Attorney improperly usurped the grand jury's authority. This claim also is without merit.
The Priests assert the District Attorney openly declared he was using the grand jury to conduct "private" discovery for his own purposes that had nothing to do with any pending grand jury investigation, and that the referee improperly acquiesced in this manipulation of the grand jury process. We cannot agree.
This claim is based on a misreading of the District Attorney's oral argument to the referee and a misperception about the proper scope of a grand jury investigation, which "`"is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. As has been said before, the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury's labors, not at the beginning."'" (M.B. v. Superior Court, supra, 103 Cal.App.4th at pp. 1394-1395,
Contrary to the Priests' assertion the District Attorney was allowed to subvert the grand jury process, the record shows the referee rejected the District Attorney's argument he should be allowed to present, at the pre-indictment stage of a grand jury proceeding, evidence that would be inadmissible at trial.
The Priests complain that, although the District Attorney "may be present to advise the grand jury and conduct examination of witnesses for the grand jury, . . . he may not take the evidence he is exposed to in that capacity to use for other purposes outside the grand jury." But the Priests point to no evidence indicating such a thing happened here. They merely argue it can be inferred from the District Attorney's oral argument to the referee that the District Attorney believed he could do this. We do not agree with the Priests' interpretation of the District Attorney's comments. In any event, something more than bad thoughts would have to be demonstrated to sustain this claim.
7. Subpoenas were not impermissibly vague.
The Priests contend the subpoenas were defective because they were overbroad as to time, place and conduct, and imprecise in their description of the items to be produced. Again, these claims are without merit.
Although "[t]he Fourth Amendment requires search warrants to state with reasonable particularity what items are being targeted for search," in order to prevent police from rummaging through someone's belongings, a search warrant "need only be reasonably specific, rather than elaborately detailed, and the specificity *242 required varies depending on the circumstances of the case and the type of items involved.' [Citation.]" (U.S. v. Bridges (9th Cir.2003)
The subpoenas here requested "[a]ll documents and other materials that are in the possession, custody, or control of the Archdiocese of Los Angeles that relate in any way to allegations of child molestation or sexual abuse committed by Father . . . . [¶] The subpoenaed documents and other materials include, but are not limited to, documents in the Archdiocese general archives, general files, secret archives, secret files, . . . ." (Italics added.)
The Priests contend the subpoenas amounted to unconstitutional general warrants because their descriptions of the items to be produced were impermissibly vague. They argue that the "include, but are not limited to" language is precisely the kind of overbroad language found to have invalidated a search warrant in U.S. v. Bridges, supra. But a crucial defect in Bridges was that the search warrant nowhere stated what criminal activity was being investigated. "In light of the expansive and open-ended language used in the search warrant to describe its purpose and scope, we hold that this warrant's failure to specify what criminal activity was being investigated, or suspected of having been perpetrated, renders its legitimacy constitutionally defective." (U.S. v. Bridges, supra,
The Priests contend the subpoenas were impermissibly overbroad as to time because they effectively asked for every personnel document since the Priests had been incardinated in the Archdiocese. As we pointed out above, however, the admissibility of other crimes evidence under Evidence Code sections 1101 and 1108 means relevant evidence could be discovered by such requests.
As to place, the Priests complain the subpoenas are not limited to crimes committed in Los Angeles County in compliance with Penal Code section 917, which provides "[t]he grand jury may inquire into all public offenses committed or triable within the county . . . ." However, as the District Attorney points out, Penal Code section 784.7, subdivision (a), allows a sex crime committed outside Los Angeles County to be joined with a Los Angeles County sex crime, and then for the entire case to be prosecuted in Los Angeles County.[20] (See People v. Betts (2005)
As to conduct, the Priests contend "The term `sexual abuse' is so vague and broad that a reasonable Custodian of Records might feel obliged to produce information pertaining to sexual conduct that is not criminal at all, such as verbal sexual harassment, [or] consensual sexual activity with an adult one person's bawdy joke may be another person's `sexual abuse.' Indeed, in the context of the Catholic clergy . . . even masturbation and sexual thoughts may be deemed to be sinful and abusive." However, there is no indication whatsoever the subpoenas were read in *243 such a broad manner. Had they been, objections could have been made.
Moreover, this claim is based on a reading of the phrase "evidence of child molestation and sexual abuse" in which the word "child" does not modify "sexual abuse." This is not the only, or even the most natural, interpretation.
8. Several grand jury issues already have been decided in prior appellate proceeding.
The Priests raise several grand jury issues that were decided in our earlier opinion in this matter. They claim the grand jury did not have the power to issue subpoenas duces tecum and, if it did, these subpoenas were defective because they were unaccompanied by a good faith affidavit. These issues already having been decided in M.B. v. Superior Court, supra,
9. Priests' claims regarding particular documents are insufficiently presented and will not be addressed.
The Priests contend some of the subpoenaed documents cannot be disclosed without violating the hearsay rule, the confidentiality of third persons named in the subpoenaed documents, the right of privacy, and the attorney-client, attorney work product, psychotherapist-patient, and clergy-penitent privileges. As to all of these claims, however, the Priests have failed entirely to specify which documents they are challenging. Their pleadings merely refer to "some of these records" and similarly vague characterizations.[21] This does not constitute adequate briefing. (Cf. Jones v. Superior Court (1994)
Nor have the Priests furnished this court with copies of any disputed documents. Hence, even assuming a privilege existed theoretically, we would be unable to determine that any particular subpoenaed document was in fact privileged. (See Maria P. v. Riles (1987)
"A defendant seeking review of a ruling of the trial court by means of a petition for extraordinary writ must provide the appellate court with a record sufficient to permit such review. [Citations.]" (Sherwood v. Superior Court (1979)
*244 DISPOSITION
The order to show cause is discharged. The Archdiocese's objection to Doe 2 # 46 is sustained; this document will not be turned over to the grand jury. In all other respects, the petitions for writ of mandate, prohibition, or other appropriate relief are denied. All parties to bear their own costs in this proceeding. (Cal. Rules of Court, rule 56(l)(2).) The stay order is vacated.
CROSKEY and KITCHING, JJ., concur.
NOTES
Notes
[1] We also decided a second writ petition in this matter. (See Los Angeles Times v. Superior Court (2003)
[2] We express no opinion regarding the validity of any interpretation of religious doctrine contained in these declarations.
[3] This citation comes from the referee's final decision in this matter. Although this, and similar factual statements, originated in declarations filed by the parties in this court, most of those declarations have been filed under seal. Therefore, this opinion will refer to the facts alleged below either by citing the referee's decision, which is not under seal, or by referring generically and circumspectly to documents presently filed under seal. (See Huffy Corp. v. Superior Court (2003)
[4] Canon 1717, § 1, provides, in part: "`Whenever an ordinary has knowledge, which at least seems true of a delict, he is carefully to inquire personally about the fact. . . .'" "Canon 1719 states in part: `[T]he acts of the investigation, the decrees of the ordinary which initiated and concluded the investigation, and everything which preceded the investigation are to be kept in the secret archive of the curia if they are not necessary for the penal process."
[5] While the Archdiocese is challenging only the disclosure of 15 documents, the Priests are disputing every single document the referee ordered turned over to the grand jury.
[6] The Archdiocese relied on the following church property cases. Watson v. Jones (1872)
[7] As this court pointed out in M.B. v. Superior Court, supra, 103 Cal.App.4th at pp. 1388-1389,
[8] The case involved "charges of unfair labor practices filed against religious schools," to which "the schools had responded that their challenged actions were mandated by their religious creeds. The resolution of such charges by the [NLRB], in many instances, will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school's religious mission." (NLRB v. Catholic Bishop of Chicago, supra,
[9] Whereas the federal clause prevents Congress from passing any law prohibiting the free exercise of religion, California's free exercise clause guarantees the "[f]ree exercise and enjoyment of religion without discrimination or preference. . . ."
[10] "Under [the strict scrutiny] standard, a law could not be applied in a manner that substantially burdened a religious belief or practice unless the state showed that the law represented the least restrictive means of achieving a compelling interest or, in other words, was narrowly tailored." (Catholic Charities of Sacramento, Inc. v. Superior Court, supra,
[11] The other clergy-penitent privilege statutes provide that: "a `member of the clergy' means a priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization" (Evid.Code, § 1030); "`penitent' means a person who has made a penitential communication to a member of the clergy" (Evid.Code, § 1031); "[s]ubject to [Evidence Code] Section 912, a penitent, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he or she claims the privilege" (Evid.Code, § 1033); and, "[s]ubject to [Evidence Code] Section 912, a member of the clergy, whether or not a party, has a privilege to refuse to disclose a penitential communication if he or she claims the privilege" (Evid.Code, § 1034).
[12] Thus, for example, where the psychotherapist-patient privilege is claimed, "`[p]reliminary facts' means the existence of a psychotherapist-patient relationship, `that is, that the person [the claimant] consulted was a "`psychotherapist'" within the meaning of . . . section 1010, and [the claimant] was a "`patient'" within the meaning of . . . section 1011.' [Citation.]" (Story v. Superior Court, supra,
[13] Evidence Code section 912, subdivision (a), provides: "Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege), 980 (privilege for confidential marital communications), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1033 (privilege of penitent), 1034 (privilege of clergyman), 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor-victim privilege) is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege."
[14] Under Evidence Code section 912, subdivision (a), the clergy-penitent privilege is waived if a holder of the privilege discloses a significant part of the communication or consents to such disclosure.
Under Evidence Code section 912, subdivision (d), "A disclosure in confidence of a communication that is protected by a privilege provided by Section 954 (lawyer-client privilege), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor-victim privilege), when disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer, physician, psychotherapist, sexual assault counselor, or domestic violence counselor was consulted, is not a waiver of the privilege." (Italics added.) Notably, the clergy-penitent relationship is missing from the enumerated relationships that benefit from this "reasonably necessary disclosure" rule.
[15] With respect to the parties' respective burdens of proof and the standard of review, the discussion in the previous section, relating to the clergy-penitent privilege, is equally applicable here.
[16] Evidence Code section 992 provides: "As used in this article, confidential communication between patient and physician means information, including information obtained by an examination of the patient, transmitted between a patient and his physician in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the physician is consulted, and includes a diagnosis made and the advice given by the physician in the course of that relationship." (Italics added.)
[17] We do not mean to suggest by anything in this opinion that the formation of clergy doctrine is foreclosed as a basis for application of the psychotherapist-patient privilege in all circumstances. The formation of clergy concept, as relied on by petitioners, could, in appropriate factual circumstances, fall within the principles articulated in Grosslight, supra,
[18] Penal Code section 803, subdivision (g), came into effect on January 1, 1994. The statute of limitations for child molestation cases is six years (Pen.Code, §§ 800, 805, subd. (a)).
[19] Under Evidence Code section 1101, subdivision (b), "evidence of a defendant's uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan." (People v. Ewoldt (1994)
[20] Penal Code section 784.7, subdivision (a), provides, in pertinent part: "When more than one violation of Section 220, except assault with intent to commit mayhem, 261, 262, 264.1, 269, 286, 288, 288a, 288.5, or 289 occurs in more than one jurisdictional territory, the jurisdiction of any of those offenses, and for any offenses properly joinable with that offense, is in any jurisdiction where at least one of the offenses occurred, subject to a hearing, pursuant to Section 954, within the jurisdiction of the proposed trial."
[21] For instance, regarding the psychotherapist-patient privilege, the Priests contend that "[w]ithin some of the files the Archdiocese intends to produce . . . are extremely private and intimate communications." (Italics added.) With regard to the clergy-penitent privilege, the Priests contend: "Some of the items within the command of the subpoenas include statements that are protected by this privilege. . . ." (Italics added.)