Doe v. Potter

¶1concurring:

¶2While I fully concur in the result and reasoning in our ruling on the writ, I write separately to emphasize my belief that the very serious public interest issues articulated in our opinion have been occasioned solely by the fact that this litigation was improperly allowed to proceed anonymously from the outset. Although Class counsel cites caselaw from other jurisdictions purporting to establish a right to proceed by use of pseudonyms, the majority of the cited foreign cases, many of which refused to allow the use of pseudonyms, are distinguishable. I find no Kentucky authority by statute, rule or caselaw, supporting the proposition that litigants may proceed anonymously in this type of case.

¶3To be sure, there are certain peculiarly private individual matters in which parties have been allowed to proceed anonymously. However, those cases are based almost exclusively upon the existence of factors which substantially outweigh the “customary and constitutionally-embedded presumption of openness in judicial proceedings.” 5 Cases which have been found to meet that criterion include challenges to legislation such as the abortion statutes, litigation to compel one’s insurance company to pay for particularly private procedures, and eases involving purely legal issues in which there is an atypically weak public interest in knowing the identities of the litigants. It is clear to me that the heinous and criminal nature of the conduct alleged in this litigation, as well as the positions of trust occupied by the alleged abusers, overwhelmingly tips the balance in favor of public disclosure.

¶4As we have painstakingly outlined, this litigation is predicated upon allegations of sexual misconduct against more than 300 children by Catholic priests and further misconduct by the priests’ superiors which allowed the priests’ misconduct to continue. I can conceive of no scenario involving greater public interest and concern, not only in terms of discerning the factual accuracy of the allegations but in protecting potential victims from future abuse.

¶5Although the Class claims a right to anonymity based upon the embarrassing nature of the crimes perpetrated against them, potential for embarrassment standing alone cannot justify anonymity. For example, many victims of workplace sexual harassment are exposed to embarrassment, ridicule and even discrimination in their employment if they choose to seek redress through litigation. I am thus convinced that the concerns of a few of the individual Class members in this litigation, while significant, do not outweigh the obvious and imperative need for openness in this type of case. Individuals utilizing the courts of this Commonwealth to level charges of this nature should be prepared to stand behind those charges publicly. If this litigation had not proceeded in secret, Senior Judge Potter would not have found it necessary to initiate a procedure for bringing to light criminal acts which have so far escaped public scrutiny.