The Catholic church pushed back against state investigators this month, 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 March 1 before agreeing in court to delay the fight. Both sides will return to court later this month. Until then, the attorney general's office has agreed not to enforce the subpoenas.
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.
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.”
They prompted the church’s court filing, 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.