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After Striking Out With Ginsburg, Attorney for Catholic Diocese Tries Scalia
The National Law Journal
September 03, 2009
If at first you don't succeed, try another Supreme Court justice. That's what Mayer Brown's Philip Lacovara did on behalf of his client, the Roman Catholic Diocese of Bridgeport, Conn., in seeking to delay release of thousands of pages of documents in sexual abuse cases brought against priests over the last decade or so.
The New York Times and other news organizations sought and won an order from the Connecticut Supreme Court to release the discovery documents in the aftermath of a settlement in the cases -- in 2001. After years of litigation over the issue, the court ruled in June in favor of the media request, citing the state's common law right of access.
On Aug. 6, Lacovara asked Justice Ruth Bader Ginsburg, the justice who handles emergency matters within the 2nd Circuit, for a stay of the release, pending the diocese's filing of a petition for full review by the U.S. Supreme Court. "The harm to the diocese would be irreparable," Lacovara wrote, arguing that if the documents are released and disseminated by the media organizations, the media will then argue that the diocese petition is moot. Without comment, Ginsburg denied the stay on Aug. 25.
The U.S. Supreme Court's Rule 22 specifically allows parties to renew such a request with another justice after being denied, but says "a renewed application is not favored." Those discouraging words are noted in Supreme Court Practice, the bible for high court practitioners. But the tome, written mainly by Lacovara's current and past partners at Mayer Brown, goes on to stress that renewing an application is permitted, and that it "customarily" results in the second justice referring the issue to the full court.
So Lacovara followed his colleagues' advice and asked Justice Antonin Scalia for the relief that Ginsburg denied -- with the hope that it would be referred to the full Court. At the same time, Lacovara filed the petition for certiorari in the case, captioned Bridgeport Roman Catholic Diocesan Corporation v. New York Times.
As Lacovara predicted, the stay application has been ordered distributed to the entire Court for consideration at its Sept. 29 conference, according to a notation Wednesday on the case docket.
Why Scalia? Lacovara's Aug. 28 letter to the Court offers a reason: "Justice Scalia has written on the issues posed by the certiorari petition, and it is appropriate to re-examine the issue in light of the filing of the actual petition." The comment on Scalia's writing refers mainly to a 1985 decision written by then D.C. Circuit Judge Scalia in which he ruled on the issue of post-judgment release of documents in a civil trial.
Scalia's Roman Catholic religion was not a factor, Lacovara said in an interview Wednesday. "From that perspective, I could have gone to six justices," he said, referring to the fact that six current justices are Catholic. "Religion had nothing to do with it."
Lacovara said that to trigger the customary practice of referring the case to the full Court, he had to pick one justice, and Scalia's past writings seemed relevant -- though not all cut in favor of the diocese.
Jonathan Albano of Bingham McCutchen in Boston, who represents the media organizations in the case, said the dispute has gone on long enough and the papers should be released. "It's taken more than seven years," Albano said. "It's been very hard fought."
This article first appeared on The BLT: The Blog of Legal Times.
