The Catholic church pushed back against state investigators Friday, asking a judge to toss the 400 subpoenas the Nebraska attorney general served on churches and schools this week seeking evidence of clergy sex abuse of minors.
Short of that, church officials asked a judge to give them more time to comply, and to force Attorney General Doug Peterson to narrow his requests.
“The attorney general has improperly attempted to use these subpoenas like warrants without a showing of probable cause, by demanding immediate responses, threatening sanctions for failing to comply, and using the element of surprise,” lawyers for the bishops wrote.
On Tuesday, Peterson announced he’d instructed law enforcement officers across the state to serve 400 subpoenas on Catholic churches, schools and other institutions. Specifically, he required all records related to any assault or abuse by those employed or associated with each church or institution, whether previously reported or not, according to his news release.
What the release didn’t say: Peterson was demanding information covering 22 years, according to court documents. He was expecting immediate compliance from the offices of the Diocese of Lincoln and Archdiocese of Omaha. And he was giving churches and schools three days to turn over records.
Attorneys for both sides met privately with Lancaster County District Judge Robert Otte in his chambers Friday before agreeing in court to delay the fight.
They will meet next week to discuss document production. And both sides will return to court later this month. Until then, the attorney general's office has agreed not to enforce the subpoenas.
Outside of court, Assistant Attorney General Corey O'Brien declined to comment on why the state has softened its position on enforcement of its subpoenas.
And Richard Rice, who represents the Diocese of Lincoln and its Catholic schools, declined to comment on the development, stressing only that diocesan officials want to continue cooperating with the state's investigation.
The subpoenas followed Peterson’s request in late August that Nebraska’s bishops voluntarily produce four decades of internal investigative reports related to sexual abuse of minors.
Over the next few months, the Lincoln Diocese — after working with the attorney general’s office, Lincoln police and the Lancaster County attorney to clarify the request — turned over more than 2,500 pages of documents, according to court records. And the Archdiocese of Omaha ultimately produced more than 11,500 pages related to 137 clergy and lay people.
On Tuesday, Peterson said he appreciated the church’s cooperation, but believed subpoenas were necessary to make sure all reports of impropriety were investigated.
The subpoenas to the schools and churches, including the Diocese of Grand Island, demanded documents by March 1 and read, in part:
“You are hereby ordered to produce records, files, forms, summaries, documents, materials, e-mails and statements, or any other documentation related to reports or allegations of clergy or any other church or school employee or volunteer pertaining to any inappropriate conduct with a child between April 16, 1997, and January 1, 2019.”
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They prompted the church’s court filing Friday, which contained a long list of complaints, including a problem with the term “inappropriate conduct.”
“The directive within the subpoenas received by schools and churches is vague and broad and puts the schools and parishes in the difficult position of determining the meaning of ‘inappropriate behavior.’”
Meaning it could include conduct that has nothing to do with abuse of children, the church’s lawyers wrote.
They found the subpoenas to the diocese offices equally broad in their demand for 22 years of business, real estate, litigation, financial, employment, personnel and insurance records. “These subpoenas are not limited to clergy sexual abuse of minors, but seek records related to any ‘wrongful’ conduct,'” they wrote.
Beyond the vague language and tight deadlines, church officials had other problems with the subpoenas:
* Peterson demanded silence, saying those subpoenaed “are ordered not to disclose the existence of this subpoena to any person who is not directly involved …” The church’s lawyers pointed out Peterson issued a news release about the subpoenas and, further, that he didn’t identify any legal authority allowing him to give that order.
* The costs could be “staggering,” the lawyers wrote. Retrieving electronic documents, for example, would require the review of thousands of computers and systems across the state. “In addition to the forensic costs, the time, labor and travel expenses to complete this exercise would quickly total millions of dollars.”
* And they accused Peterson of violating church officials’ rights to due process and to be free of unreasonable searches and seizures.
They asked the court to either quash the subpoenas or issue a protective order, requiring Peterson to narrow the subpoenas — “tailored to the subject matter of its investigation” — and to allow the church to produce copies, not originals. They want Peterson to require electronically stored information only if he can demonstrate the need — and only if he pays for the retrieval.
And finally, they asked for more time: 60 days for the Omaha and Lincoln diocese offices; 30 days for schools and parishes.
But in a statement Friday afternoon, the attorney general’s office said “a number” of Catholic institutions had already complied with the subpoenas — and provided information not previously produced.
"The Attorney General's Office has agreed to have further discussions but believes that information not yet disclosed needs to be made available for review as soon as possible."
The Diocese of Lincoln issued its own short statement, saying it took the court action, along with the Archdiocese of Omaha, because it wasn’t possible to respond to the subpoenas in three days.
“Despite having to take this step, the Diocese of Lincoln will continue to cooperate with the attorney general to provide records and information in a timely and reasonable way.”