Circuit Rejects Bid to Sue Albany Diocese in Vermont

, New York Law Journal

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Map of Albany diocese and distance to Vermont federal court in Burlington

Sessions then denied a certificate of appealability and ordered the diocese to produce documents dating back to 1975 concerning sexual abuse by diocese employees as well as the results of any internal investigations.

Friday, quoting a line of U.S. Supreme Court cases, the circuit said the writ of mandamus is only issued in "exception circumstances amounting to the judicial 'usurpation or power' or a 'clear abuse of discretion.'"

And the writ is only granted, the court said, where the party seeking it has no other means of relief, the court considers the writ appropriate under the circumstances and the right to the writ is "clear and indisputable."

The Sessions order met all three requirements, the circuit said, particularly the judge's "expansive discovery order," on investigations of child sexual abuse involving the diocese's employees, the names and addresses of the investigators and summaries of oral and written statements taken during the investigations.

"There is no evidence that this information has previously been disclosed," the court said. "The cat is still in the bag, and the ensuing litigation will inevitably let it out."

The court said that "unlike a run-of-the-mill tort case, the litigation implicates significant confidentiality interests for the Diocese, its priests, and (more alarmingly) other victims (and their families) who would likely be subjected to distressing depositions, revisiting pasts that would not otherwise be revisited in a case solely against Mercure."

In the end, the court said, "The diocese's scant contacts with Vermont do not come close" to warranting a finding of general jurisdiction.

"The clarity of the District Court's error, taken together with the substantial confidentiality interests at stake (which are amplified by the fact that the case against the Diocese is unlikely to ultimately proceed to trial in any forum), establish that the Diocese has a 'clear and indisputable' right to the writ," the court said.

Michael Costello of Tobin & Dempf in Albany argued for the defendants. Meir Feder of Jones Day in New York City and Thomas McCormick of McCormick, Fitzpatrick, Kasper & Burchard in Burlington, Vt., were on the brief.

In a statement, the Diocese of Albany said the circuit's decisions speaks for itself and that the diocese "long ago embraced its moral obligation to assist individuals abused at any time by Albany Diocese clergy, and we again would welcome the opportunity to offer assistance in this case."

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