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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Nash (7/29/2011) sp-6585
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303
K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of MICHAEL P. NASH, ) Supreme Court No. S-13405
Applicant to the Alaska Bar )
Association. ) ABA No. 2007A002
)
) O P I N I O N
)
) No. 6585 - July 29, 2011
Appeal from the Decision of the Board of Governors of the
Alaska Bar Association.
Appearances: Mark McCormick, Belin Lamson McCormick
Zumbach Flynn, P.C., Des Moines, Iowa, and Fred W. Triem,
Petersburg, for Appellant. Stephen J. Van Goor, Bar
Counsel, Alaska Bar Association, Anchorage.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Christen, Justices. [Eastaugh, Justice, not participating.]
CARPENETI, Chief Justice.
FABE, Justice, dissenting.
I. INTRODUCTION
Based on a negative moral character determination, the Board of Governors
of the Alaska Bar Association denied an application to the Alaska Bar. In particular, the
Board found that the applicant - a former priest - was not truthful regarding aspects
of his departure from the priesthood, which was clouded by allegations of misconduct.
The applicant appeals, arguing that the Board erred by misstating the record and relying
on hearsay evidence and information not in the record. Further, the applicant claims that
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certain members of the Board should have disqualified themselves, and that the overall
errors amount to a violation of due process. Because we agree that there were serious
flaws in the Board's decision, we set aside its findings. Because we have final
responsibility and authority to determine the standards for admission to the practice of
law in Alaska, we apply our independent judgment to the matter, find the applicant meets
the moral character requirements for admission to the Alaska Bar, and direct the Board
to proceed consistent with this opinion.
II. FACTS AND PROCEEDINGS
A. Procedural Posture
On December 3, 2007, Michael Nash, a member of the Iowa Bar,1 applied
for admission to the Alaska Bar. The Alaska Bar appointed a hearing master, who
conducted a hearing assessing Nash's character and fitness. On August 28, 2008, the
hearing master issued a proposed decision to the Alaska Bar Association Board of
Governors recommending that the Board conclude that Nash met the standard for
character and fitness.
The Board considered the matter at its meeting of October 30, 2008, where
Nash's attorney and the Bar Counsel could respond to the Board's questions. Rejecting
the hearing master's recommendation, the Board denied Nash's application on January
9, 2009.
Nash now appeals the Board's denial of his application.
1 See In re Nash, 739 N.W.2d 71 (Iowa 2007) (reversing decision of the Iowa
Bar Association and permitting Nash to sit for the Iowa bar examination).
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B. Facts
1. Early priesthood
Michael Nash, currently 60 years old, was a priest in Southeast Alaska for
the better part of the 25 years between 1980 and 2005. He was based in larger
communities - Juneau and Ketchikan - and often served smaller communities by
plane. During the 1980s Nash often took trips and brought boys along on the trips. These
trips included local travel in Southeast Alaska and more extensive travel to such
destinations as San Francisco and Hawaii.
Nash had inappropriate contact with some of the boys on these trips. Nash
asserts that the contact was horseplay and a form of discipline, but agrees that it was
inappropriate in retrospect. Four affidavits from boys on the trips describe Nash's
conduct. It involved tickling the boys, having them do calisthenics in their underwear,
spanking them, and receiving foot and neck massages from them. The affidavits are not
strictly condemnatory though. The affidavit discussing tickling hedged its assessment:
"Father Nash never touched my genital area, and did not engage in other sexual activity
with me. He also never told me not to mention the tickling to others, and he might not
have realized that there was something wrong about it." And six other affidavits or
letters from participants indicated that no improper activity was observed on the trips, nor
was discomfort felt.
Admitting to the acts and their inappropriateness, Nash stated that the
discipline was of the kind he had received as a child at Catholic summer camp. A Juneau
teacher who worked with youth at the time of Nash's actions stated that it was then
common to discipline children in such a manner. The church looked into the matter and
concluded that the behavior was "horse play." Nash said the tickling was used in place
of spanking. He claims that he did not receive any sexual gratification from the behavior,
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but now recognizes that it was inappropriate. A letter from Nash's legal advocate within
the church described the behavior as "immature attempts by a very young priest to
maintain discipline among teenagers."
2. Jemez Springs rehabilitation center
A 1989 complaint related to Nash's behavior put an end to his trips with
youth, and resulted in Nash attending a New Mexico retreat and treatment center, Jemez
Springs, from January to May of 1990. Although Nash was never told the specifics of
the 1989 complaint, based on counseling Nash received and his memory of the trips,
Nash asserts that the complaint pertained to conduct along the lines of the other
allegations against him - tickling and massages. He had just returned from a trip with
youth to San Francisco, which left him feeling burnt-out and unable to control the
children with him. Nash attempted to resign from the priesthood after the complaints,
but instead the bishop recommended Nash seek counseling at Jemez Springs.
Nash went to Jemez Springs for a three-day evaluation. The evaluation
included interviews, psychological exams, and physical examinations. Nash said he did
not remember details from this 20-year-old evaluation, but said that he was not aware of
any diagnosis of a psychological condition. Rather, the results showed that he was "a
physical and emotional wreck." Bishop Michael Kenny of Juneau recommended Nash
stay at the facility and take part in a five-month renewal program called "Foundation
House." Nash did so.
Father Liam Hoare is a Licensed Professional Clinical Counselor who was
the director of Jemez Springs during the time Nash was there. He did not remember
Nash specifically, but based on the limited remaining documentation of Nash's time at
Jemez Springs, Father Hoare testified about the programs Nash would have participated
in, and the history and purpose of the facility generally. In the 1950s and '60s the facility
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did not offer counseling, and was more of a home for priests who could not function in
society. By the time Nash attended the facility, it had changed to essentially a medium-
term inpatient counseling facility. Priests came to the facility for "stress-related
disorders, personality disorders, mid-life crises, vocational crises, discernment issues
regarding whether to remain in the priesthood or not . . . [as well as] [s]exuality issues,
heterosexual issues, homosexual issues, human sexuality issues, interpersonal
relationships."
According to Nash, Jemez Springs had two facilities: one for priests facing
allegations of sexual abuse, and another more general retreat. Nash stated that he was
at the latter facility. Father Hoare stated that "burn-out" was the reason a lot of priests
attended Jemez Springs. The five-month holistic renewal program in which Nash
participated included emotional, psychological, spiritual, and physical components. One
aspect of the program emphasized diet and exercise. The counseling components
included individual and group therapy, art therapy, psychodrama, journal workshops,
lectures, and meditation.
The facility kept reports of each participant's progress, but no reports on
Nash are still available. Only a cover letter exists, and consistent with the facility's
confidentiality policy, the cover letter asks the holder of the report to destroy the report
after reading it. The facility itself kept a copy, but closed in 1995, and ultimately the new
administration that later took over destroyed all old reports in 2003. When Nash
requested the records, the facility rebuffed or denied his request. Nash expected the
documents to come up in later litigation, and was willing to have that happen, but the
records were gone by the time they were requested. Nash stated that Bishop Michael
Kenny, who was then the bishop of Juneau, had destroyed the local diocese's copy,
consistent with the requirements of the cover letter. However, contrary to that, one
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affidavit in the record implied that Nash destroyed the Juneau Diocese's copy of the
records. The affidavit was introduced into the record by Nash, because it was
background material used in a recent psychiatric exam of Nash. The affidavit is from a
church employee who stated that in 1995 Nash had private access to the Diocese's files
and an office shredder, and that she (the church employee) noticed manilla envelopes
containing the reports go missing at that time.
One way or another, the reports of Nash's time at Jemez Springs were
destroyed. However, there is evidence supporting Nash's contention that his treatment
addressed burn-out, not pedophilia. Father Hoare's testimony indicated burn-out was a
common reason priests would attend the facility. Also, the bishop allegedly wrote in
Nash's personnel file that Nash was at Jemez Springs "for himself & not because he had
ever molested anyone" and made other consistent remarks. A letter from the Archbishop
Emeritus of Anchorage confirms, with personal knowledge, that Bishop Kenny
considered Nash to be "OK" after Jemez Springs and returned Nash to his prior
assignment. And Juneau's later bishop, Bishop Warfel, testified that when he took over
as bishop in Juneau in the 1990s, his impression, based on discussions with Nash and
other church officials, was that the allegations against Nash concerned little more than
"horse play" and that Nash was at Jemez Springs for issues like burn-out and depression.
Following his five months at Jemez Springs, Nash returned to working as
a priest in Southeast Alaska. Father Hoare stated that Jemez Springs aggressively
followed all government reporting requirements and would not have recommended a
priest return to his regular position if the facility's staff felt the priest constituted a risk
to either adults or children.
Nash concluded that his conduct "crossed appropriate pastoral boundaries,"
and he resolved to "limit [his] contact with young people and not to do it again." The
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record does not include any allegations that Nash's conduct was improper after his
departure from Jemez Springs.
3. Sexual abuse allegation
In 1992 "J.P." or his father alleged that Nash had sexually abused J.P. when
J.P. was a minor. Nash testified that he immediately denied the allegation, and that
Bishop Kenny investigated the matter and found it not credible. It appears the complaint
in 1992 was vague and did not allege any specific instances of abuse.
In 2002 J.P. came forward with renewed rape accusations against Nash
covering the period from 1979 to 1982, when J.P. was a young boy. J.P. alleged an
extended pattern of sexually assaultive conduct over three years during which Nash
isolated J.P. on trips (or even sometimes in Juneau).
J.P.'s allegations were made in writing but unsigned and undated. It does
not appear that he was ever under oath when making the allegations. J.P. read a prepared
statement to a church board reviewing the charges, but there was no opportunity for cross
examination.
Nash denied (and continues to deny) J.P.'s allegations. He submitted an
affidavit stating that he "would not have done and did not do the things that [J.P.]
alleges . . . ." (Emphasis in original.) Nash noted that the Juneau newspaper reported
that J.P. said that he had had no memory of the sexual assaults until three years before
coming forward, almost 20 years after they allegedly took place. Further, Nash
submitted aircraft logs contradicting some of J.P.'s allegations.2 Nash's aircraft evidence
2 J.P. alleged that "[b]etween the fall of 1979 and the spring of 1980 I had
taken approximately 10 trips in the floatplane with Father Mike [Nash] and on each of
these trips I was alone and was molested by Father Mike." Nash submitted mechanical
logs showing that the plane to which Nash had access (the Diocese's plane) was not
(continued...)
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was later confirmed by testimony from a retired Federal Aviation Administration safety
inspector.
J.P.'s allegations were turned over to Alaska Special Assistant Attorney
General Richard Svobodny, who declined to prosecute Nash.
4. Investigations and Nash's departure from priesthood
After the J.P. allegation, Bishop Warfel, then bishop of Juneau, ordered an
investigation. It included, in 2003, a comprehensive report to Warfel, made by the
Diocese of Juneau Review Board for the Protection of Children and Young People. The
review board considered a rich record, which now forms the starting point for the record
before this court. Also, the review board apparently had access to confidential
documents, including a police report not part of the record before this court.
The review board found J.P.'s statement to be the only evidence of sexual
assault, and noted that Nash had called that statement into question with contradictory
evidence. Accordingly, the review board recommended no action be taken on J.P.'s
allegation at that time. Similarly, regarding the affidavit suggesting that Nash destroyed
files, the review board found that although the affidavit was credible, Nash presented
evidence calling the affidavit into question. The review board thus presumed Nash
innocent of the alleged misconduct. However, regarding the older tickling and similar
behavior (from 13 to 23 years prior and admitted to by Nash) the review board found the
behavior to constitute sexual abuse of minors - and that Nash's intent was "relatively
2 (...continued)
configured as a float plane at that time, but rather had wheels. In the event J.P. was
mistaken about the year, or in the event another plane could have been used, Nash
provided evidence that neither the Diocese's plane nor any other Juneau plane was in
floatplane configuration during the winters, since the Juneau landing pond is frozen in
the winter.
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unimportant." One of the review board's more detailed recommendations was that the
bishop and Nash negotiate an agreement whereby Nash would voluntarily request a
"dispensation" from the priesthood.
The above investigation and report were conducted under "pontifical
secret." This appears to have prohibited Nash from independently investigating the
merits of the allegations against him. Similarly, while Nash was allowed to answer
questions from the church's review board, he was not able to present a case or cross-
examine witnesses. Only after the review board and bishop reached their conclusion did
a canonical advocate - the church's version of legal representation - present the
Vatican with a brief defending Nash.
About a year after the review board's 2003 report, the church's governance
granted the bishop permission to negotiate Nash's resignation. From 2004 to 2005 Nash
and Bishop Warfel negotiated Nash's resignation in exchange for Nash receiving
retirement pay, severance pay, and medical benefits, and a waiver by both sides of any
claims against the other.
5. Conflicts after Nash's resignation request
Complying with the settlement, Nash wrote the Vatican in May 2005
requesting to be relieved from his vows of priesthood. The Vatican responded with a
Latin decree (and English translation) that may have granted Nash's request, or may have
fired him. The English version of the decree used the terms "dismissal" and
"dispensation." Nash claims the Vatican simply accepted his request for resignation -
a view supported by a separate assessment by the dean of Nash's law school, Creighton
University (a school "rooted in the Catholic tradition"3). Later negotiations between
3 Creighton University, About Creighton, http://www.creighton.edu/about/
(continued...)
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Bishop Warfel and Nash led to an agreement condoning the following explanation, stated
from Nash's perspective: "I voluntarily requested the Holy See to return me to the status
of a layperson. This request was granted by Pope Benedict XVI in November 2005."
That statement was drafted by the church, not Nash.
The need to clarify the meaning of the proclamation later came about
because Nash filed a defamation suit against J.P. based on J.P.'s rape accusation. The
Diocese of Juneau paid for J.P.'s defense in that suit. The result was an October 26,
2006, settlement between Nash and Bishop Warfel of Juneau, in which the parties
stipulated how they would characterize the accusations against Nash and his departure
from the priesthood.4 One such characterization was the explanation quoted in the
previous paragraph about Nash's departure. In other stipulated language, Bishop Warfel
stated that Nash "has never been found . . . to have committed any sexual assault upon
J.P."; that Nash produced evidence of "unquestioned authenticity" contradicting J.P.'s
claims; that the allegations were "insufficiently probable" to warrant further church
actions; and that neither Bishop Warfel nor the Diocese of Juneau opposed Nash's
application to the bar. For his part, Nash wrote a letter of apology for his inappropriate
attempts at discipline and wrote a statement discussing his actions.
In 2007, following his admission to the Iowa Bar, the Juneau Empire ran
a story, "Court rules former priest can take bar exam, despite allegations." Writing an
op-ed in response to the story, Nash used some of the above language. Although the
language had been agreed upon, its use led to a spat between Bishop Warfel and Nash.
3 (...continued)
(last visited June 21, 2011).
4 Nash claimed Bishop Warfel threatened Nash with excommunication if
Nash would not settle the defamation claim against J.P., and that this was a motivation
for Nash to withdraw.
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Bishop Warfel wrote Nash to protest Nash's use of Bishop Warfel's settlement statement,
as well as Nash's public characterization of the Vatican's action as accepting Nash's
resignation. Bishop Warfel continues to believe Nash has incorrectly characterized his
departure from the priesthood.5
C. Proceedings
1. Iowa Bar and Iowa Supreme Court
Nash graduated from Creighton Law School in the spring of 2006. Nash
applied to sit for the Iowa Bar, where he was initially denied. Thus began a series of
probes into Nash's background, first in Iowa and now in Alaska.
As part of the Iowa process, a 2006 psychiatric exam of Nash concluded as
follows:
I find no evidence that Mr. Nash suffers from any
diagnosable psychiatric disorder of any sort. Further, I find
no evidence that Mr. Nash presents a risk of perpetrating
abuse of any type upon any individual, minor or adult.
Finally, I find no evidence that Mr. Nash possesses any
mental disorder or personality traits which would, in any way,
impair his ability to maintain the moral character and honesty
[ ]
expected of an Iowa Lawyer. 6
5 Bishop Warfel's indignation is puzzling since Nash used language Bishop
Warfel authorized in a manner authorized by the settlement. Indeed, testifying before the
Alaska Hearing Master, Bishop Warfel had difficulty pointing to what, exactly, Nash had
stated incorrectly. And, by the time of the bar inquiry, Bishop Warfel was a bishop in
Montana, not Alaska - although the contract between Bishop Warfel and Nash called
for only the bishop of Juneau to respond to questions from the bar. Further, the
settlement between Nash and Bishop Warfel clearly stated that neither the church nor
Bishop Warfel opposed Nash's application to the bar.
6 In re Nash, 739 N.W.2d 71, 74 (Iowa 2007).
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In addition to the exam and a subsequent test to assess Nash's honesty during the exam,
the psychiatrist reviewed a thick file of background information on Nash, all of which
is now in the record before this court.
As further evidence of his character, Nash submitted to the Iowa Bar nearly
80 letters of recommendation.7 Forty-seven letters were submitted to the Alaska Bar.
These letters are compelling. It appears that Nash has been forthright regarding the
allegations against him, because most of the letters discuss the sexual abuse allegations,
and proceed to document Nash's character comprehensively. The letters are generally
impressive in their breadth and depth, and on the whole appear genuinely personal and
reflective. Several people with lifelong ties to Nash speak to his trustworthiness and
integrity, as do many who have known Nash only during his law career. They present
a thoughtful, caring portrait of Nash.
The following are representative of the letters recommending Nash to the
bar. Francis Hurley, the Archbishop Emeritus of Anchorage and a former bishop of
Juneau, was supportive of Nash's bar application and wrote as a family friend, a
supervisor, and a church official - perhaps the only person presenting first-hand
knowledge of Nash's early years as a priest. Patrick Borchers, dean of Creighton Law
School, was familiar with law and the church, and his professional responsibility
included giving references to students so that they may sit for the bar. He discussed the
credibility of J.P.'s allegations, the nature of the Diocese of Juneau's settlement with
J.P., Nash's departure from the priesthood, and Nash's admitted-to acts, and concluded
by supporting Nash's application to the Iowa Bar. Notably, in addition to being someone
with experience making moral-character recommendations, Borchers demonstrated an
informed perspective on child abuse and the church. Reverend Mark Henslee worked
7 Id.
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with Nash as a pastor in Southeast Alaska in the 1990s, and attested to the "high moral
character, integrity, and maintenance of appropriate boundaries" Nash displayed.
Patricia Douglass of the Alaska Public Defender Agency, where Nash worked in the
summer of 2005, spoke to his conscientiousness and responsible habits practicing law,
his effective work with the community, and his dedication. And Ronald Volkmer, a
professor at Creighton, made a persuasive argument that "[u]ntil a fact-finding body
accords Michael Nash due process of law in regard to these charges" Nash should be
presumed innocent according to "fundamental notions of fairness."
As noted above, Nash's application to the Iowa Bar was originally rejected.
Nash then requested a hearing before the Iowa Board of Bar Examiners. Much of the
evidence noted above was addressed before the board. Upon considering all of the
evidence, the board was evenly split: Three members favored Nash's admission and
three opposed it. Under Iowa law, the split vote affirmed the earlier decision denying
Nash's application.
Nash then appealed to the Iowa Supreme Court. As in Alaska, an applicant
for admission to the Iowa Bar bears the burden of showing his or her fitness to practice
law.8 Also as in Alaska, the board makes the initial determination of fitness to practice
law but the supreme court exercises final authority in the matter.9 Upon review of the
entire record, the Supreme Court of Iowa concluded:
We have a duty to the citizens of Iowa to ensure the
practice of law is reserved for individuals who will respect
the trust inherent in the lawyer-client relationship. We
conclude Michael Nash has established by a convincing
preponderance of the evidence he possesses the requisite
8 Id. at 74.
9 Id.
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moral character and fitness for admission to the Iowa bar.
We therefore grant his application to take the Iowa bar
examination.[10]
2. Alaska administrative hearing
Nash then applied to the Alaska Bar, which held a hearing to consider
Nash's character and fitness. Mary K. Hughes was appointed as hearing master by the
Alaska Bar. The taking of testimony consumed two full days; 14 witnesses testified.
Following the hearing, Hughes issued her decision. She concluded that Nash met the
standards for admission to the Alaska Bar.11
The hearing master began by noting that the standard for character and
fitness, set forth in Alaska Bar Rule 2(1)(d), is that each general applicant for
examination shall "[b]e one whose conduct justifies the trust of clients, adversaries,
courts and others with respect to the professional duties owed to them. Conduct
manifesting a significant deficiency in the honesty, trustworthiness, diligence or
reliability of an applicant is a basis for denial of admission." She also noted that "Nash
has the burden of demonstrating character and fitness to practice."
10 Id. at 76.
11 As the dissent notes, below at 40-41, the hearing master's decision contains
the statement that "Nash's lack of memory re: the evaluation is not credible and it is
unfortunate that the records are not existent." As we note below, however, Nash offered
substantial testimony as to the evaluations he underwent, see below at 20-24, and a
careful examination of Nash's testimony in the context of the full record shows that the
Board's decision misstated the record and leads to the conclusions that (a) it is not clear
that there was a discharge report, and (b) if such a report existed, there is no evidence that
Nash ever saw it or denied knowledge of it. Moreover, to the extent that the Board's
misstatement rests on the hearing officer's finding, the finding is problematic for the
reasons we discuss in our review of the Board's conclusion, including that Nash
"discussed the evaluation comprehensively, denied any diagnosis of a psychological
disorder, gave information corroborating his statements," and the like. Id. at 21. Under
these circumstances, we give less weight to the hearing officer's finding on this point.
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The hearing included extensive testimony from Nash and Bishop Warfel,
as well as the testimony of witnesses who had known Nash through the span of his
lifetime. For example, Mary Jane Cahail, 70 at the time of her testimony, had known
Nash since Nash's infancy; recently the two volunteered at a legal clinic. She
recommended him as credible, conscientious, and honest. Stephen Schneider, of Friday
Harbor, Washington was a friend of Nash's starting in Nash's young adulthood and
hosted Nash and youths when Nash's trips from Alaska came through Washington.
Schneider found Nash's behavior with children completely appropriate, and entrusted
Nash with Schneider's own children. Lee Urban, a law school friend of Nash, testified
to Nash's recent character, recommending him to the bar "without any reluctance or any
pre condition."
The Alaska hearing record also contained 47 of the letters submitted in the
Iowa proceeding, and five specific Alaska recommendations, all uniformly
recommending Nash. Nash's own testimony in Alaska was extensive, and concluded
with the Alaska Bar Counsel thanking Nash for his candor. At the conclusion of the
proceeding, Hearing Master Hughes said to the participants:
I want to thank both counsel, and Mr. Nash. You have
been very, very professional. . . . I can tell you that the
professionalism seen here today, is not seen normally at these
types of hearings. And, unfortunately, I have some
experience in these, and thank you both counsel. Mr. Van
Goor, Mr. McCormick, and Mr. Nash, thank you. Your
respect for each other and your professionalism is so much
appreciated.
As noted above, following the end of the hearing, Hearing Master Hughes
concluded that Nash met the character and fitness requirements of the Alaska Bar.
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3. Board of Governors of the Alaska Bar Association
The Board of Governors of the Alaska Bar Association held a brief hearing
on October 30, 2008. During the Board's hearing, Nash's attorney Mark McCormick
presented an opening statement and board members proceeded to ask several questions.
There were several questions about the destruction of the Jemez Springs records. While
noting that the affidavit on that matter was not addressed in the hearing below,
McCormick nonetheless addressed the affidavit, pointing out the relevant evidence in the
record rebutting it. The Board then pressed McCormick about details from Nash's time
at Jemez Springs. McCormick twice suggested the Board directly ask Nash, who
participated telephonically, but the Board never acted on that offer. One board member
asked about Jemez Springs: "Isn't it true that that was a treatment program for
clergymen who molested minors?" and "Isn't that the reason that Father Nash was
there?" There were a few other questions, then board members concluded the hearing.
After the Board's hearing, Nash filed a recusal notice, suggesting that a
board member who had questioned him about Jemez Springs should disqualify himself
because his law partner represented J.P. in J.P.'s sexual misconduct allegations against
Nash. The Board did not disqualify this board member.
Instead, the Board issued a decision on January 9, 2009, denying Nash's bar
application. The Board considered three areas of concern - only the last sufficient to
deny Nash's application. First, weighing the allegations of sexual misconduct from
approximately 25 years prior, the Board found the allegations unsupported by a
preponderance of the evidence. Second, addressing whether Nash had destroyed evidence
in church files, the Board found the allegation serious but probably not dispositive on its
own. Third, looking to candor, the Board felt that Nash was untruthfully incomplete in
responding to questions about Jemez Springs, which merited denying Nash's application.
Board members had learned from old press reports that Jemez Springs had unsuccessfully
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treated some priests with sexual disorders, and they were not satisfied with Nash's
explanation that he went there for burn-out and more holistic treatment.
Nash appeals the Board's decision. He alleges multiple misstatements of
the record and multiple violations of Alaska Bar Rules, which govern such proceedings.
III. STANDARD OF REVIEW
The Supreme Court of Alaska has final power and authority to determine
the standards for admission to the practice of law in Alaska.12 Accordingly, when a bar
applicant appeals a decision of the Board of Governors, we have the authority and
obligation to independently review the Board's decision.13
Because we generally delegate responsibility to the Board to determine bar
admission, we give its decisions deference and ordinarily do not disturb the Board's
findings of fact if the Board is in a position to weigh the credibility of a witness or
conflicting evidence.14 Nonetheless, our independent review has full latitude to depart
from the Board's recommendations or conclusions - even absent error - and we do not
12 Sullivan v. Alaska Bar Ass'n, 551 P.2d 531, 533 (Alaska 1976).
13 See id.; accord In re Application of Obermeyer, Mem. Op. & J., No.
S-9002, 2000 WL 34545818, at *2 (Alaska, August 23, 2000); In re Green-Armstrong,
Mem. Op. & J., No. S-9327, 2001 WL 34818215, at *1 (Alaska, March 28, 2001); see
also In re Simpson, 645 P.2d 1223, 1226-27 (Alaska 1982) (establishing independent
review for disciplinary actions, based on this court's ultimate responsibility to discipline
attorneys); In re Hanson, 532 P.2d 303, 309 (Alaska 1975) (establishing independent
review for decisions of the Commission on Judicial Qualifications, based on this court's
ultimate responsibility to discipline judges).
14 See In re Simpson, 645 P.2d at 1226-27 (disciplinary proceeding);Sullivan,
551 P.2d at 534; see also In re Disciplinary Matter Involving Brion, 212 P.3d 748,
751(Alaska 2009); In re Disciplinary Matter of Friedman, 23 P.3d 620, 625 (Alaska
2001).
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necessarily extend our deference to findings where the Board was not in a position to
weigh either the credibility of witnesses or conflicting evidence.15
IV. DISCUSSION
Nash appeals the Board's decision denying his application. He claims that
the decision was inappropriately based on hearsay evidence and information outside the
record, and that the decision misstated the record. He additionally claims that board
members should have disqualified themselves from the process, and that the proceedings
denied him due process. In addition to raising errors, Nash asks us to apply our
independent judgment and grant his application to the bar.
We agree that the Board's decision misstated the record. Specifically, the
sole dispositive finding against Nash - his alleged lack of candor - was based on
factual assertions having no basis in the record. Accordingly, we set aside that finding,
and we do not find evidence that Nash was untruthful. Further, we consider the Board's
concern regarding evidence destruction, and do not find sufficient evidence to support
the concern. Finally, applying our independent judgment to the extensive record before
us, we find that Nash meets the moral character requirements set forth in Bar Rule 2,
section 1(d).
A. The Board's Decision Misstated The Record When Finding Nash To
Be Untruthful.
Denying Nash's application, the decision homed in on Nash's "inexplicable
lack of recollection about the treatment he received [at Jemez Springs] or the contents of
[its] report." The decision found Nash had given misleading answers and therefore
lacked candor. As support to show that Nash was not telling the truth about Jemez
Springs, the decision pointed to a statement by Nash's attorney, asserting that the
15 See In re Simpson, 645 P.2d at 1226-27; Sullivan, 551 P.2d at 533.
-18- 6585
----------------------- Page 19-----------------------
attorney admitted "that the facility was notorious as a treatment facility for priests
suffering from sexual disorders." Further, the decision stated that it was "well-known
to several Board members from reports in the press" that "[t]he facility has been widely
criticized as ineffectively returning priests suffering from sexual disorders to active
clerical duties." The Board summed up its decision in this way:
It is uncontested that Mr. Nash received a report upon
discharge from the facility. It is also uncontested that the
report was destroyed. This report effectively ended Mr.
Nash's pastoral career. However, neither Mr. Nash, nor his
counsel, claims to have any clue as to the report's contents,
conclusions, or recommendations. This lack of recollection
lacks credibility and appears to be a deliberate, material lack
of candor with this tribunal. It is impossible to fathom that
Mr. Nash cannot even generally recall the contents of such a
report. It derailed a decadal pastoral career. At a minimum,
Mr. Nash would recall the general contents of the report. The
report was too vital to Mr. Nash's pastoral career to credibly
claim its contents were "forgotten."
The Board stated that this alleged lack of candor was the "most serious concern" and the
"key issue" regarding Nash's application.
However, those assertions are simply not supported by the record. Most
notably, it is not clear there was any such thing as a discharge report that contained final
results. And if such final results existed, there is no evidence that Nash reviewed such
a report or denied knowledge of it. The Board's confusion may stem from the multiple
reports. Before attending the program at Jemez Springs, Nash underwent an intake
evaluation. Then, while Nash attended Jemez Springs, the facility prepared four progress
reports. Although the record does not show that a comprehensive "discharge report" was
ever prepared, the fourth progress report came at the end of Nash's time at Jemez Springs
-19- 6585
----------------------- Page 20-----------------------
and may have been considered a final report, although there is no evidence it summarized
Nash's progress more comprehensively than the other reports.
Assuming the Board's discussion of a "discharge report" referred to the
fourth report, there is no evidence supporting the assertion that Nash received and
reviewed that report. And it is not true that Nash claimed no knowledge of such a report
- rather, it does not appear Nash was ever questioned on the subject. Indeed, at oral
argument Bar Counsel could not point to a single piece of evidence in the record
supporting the Board's assertion that Nash received a discharge report, or was questioned
about the contents of one.16 This mistake is extremely prejudicial, since Nash's
purported failure to remember the purported discharge report was the basis for finding
that Nash lacks candor.
The Board's misstatement may stem from a finding by the hearing master,
who found that Nash's lack of memory about the Jemez Springs "evaluation" was not
credible. The Board's use of this finding is problematic for several reasons. First,
assuming the hearing master was correctly referring to the intake evaluation, the Board's
confusion between that and a discharge report is not harmless. That is, it is not clear that
the Board could have come to the same conclusion had it known its finding was based
on Nash's memory of a preliminary intake evaluation, and not, as it believed, on Nash's
failure to remember the contents of a comprehensive discharge report which would
contain final results from Nash's five months at Jemez Springs. Indeed, the hearing
master did not find that Nash's lack of memory warranted denying his application.
Second, it is not clear that the hearing master herself was aware of the differing intake
evaluation and progress reports. She referenced Nash's testimony about an "evaluation,"
16 At one point, Nash indicated that he was prepared to consent to the release
of records from Jemez Springs, but he was not asked to do so.
-20- 6585
----------------------- Page 21-----------------------
but then referred to testimony about all of the Jemez Springs records being destroyed,
and never mentioned the progress reports that the Board may have intended to reference.
Third, even ignoring the above two problems, and assuming the failed memory issue
refers to Nash's recollection of the intake evaluation, there is no evidence supporting the
Board's contention that Nash "claims to have [no] clue" about that report, or "cannot
even generally recall the contents." Bar Counsel conceded this at oral argument before
us.
Regarding an intake evaluation that occurred eighteen years prior - at a
time when Nash claims to have been depressed and burnt-out - we find his responses
to be appropriate. Contrary to the Board's statements, Nash testified extensively. While
he did not remember results from certain specific exams, he discussed the evaluation
comprehensively, denied any diagnosis of a psychological disorder, gave information
corroborating his statements, and attested that the general result showed he was an
"emotional wreck" who would benefit from the Jemez Springs program. On direct exam
by his own attorney, he testified as follows:
Q: What did you understand you would be evaluated for?
A: It was a - to be a broad based evaluation, including
psychological, physical, medical, spiritual, emotional
evaluation. Frankly, I was something of a wreck right
at that time.
. . . .
Q: How long did it take?
A: It was about three days.
Q: And what was the nature of the evaluation?
A: It included interviews and - let me start over. We
were asked to complete a number of psychological
written examinations similar to the MMPI. I do not
remember all of them. We were evaluated for our -
we were asked to complete an evaluation for IQ. We
were asked to spend time with a medical doctor who
gave us a complete thorough physical examination,
-21- 6585
----------------------- Page 22-----------------------
including a treadmill test, or gave me, at least. I was
asked to spend time with a spiritual director to
evaluate my particular spiritual depth and needs at the
time. Was there one more component? I was
interviewed about my social interactions and activities.
. . . .
Q: Were you given the results of the evaluation?
A: I was.
Q: What were the results?
A: I don't remember. I'm sorry. I know it sounds
evasive, but there was - ultimately, there was a
recommendation that I participate in a renewal
program offered by the Paraclete Fathers at their
facility, what they called "Foundation House."
Q: And you said you felt you were a wreck at the time, is
that correct?
A: Yes.
. . . .
Q: Now, did you discuss with Bishop Kenny the results of
the evaluation that you had had?
A: Well, the results were forwarded to him, and we
discussed the wisdom of my trying the renewal
program. . . .
Q: Was it your decision to go [to Jemez Springs], or was
it Bishop Kenny's?
A: It was my decision to go.
Q: Why did you decide that you would go?
A: He persuaded me that I should give the priesthood
another chance, and the results, I think, showed that I
was a physical and emotional wreck.
Cross-examination was similar:
Q: In the evaluation process, you indicated that there were
a number of evaluations that were conducted. Was
one of those a psychiatric or a psychological
evaluation?
A: Yes.
Q: Were you informed of the results of either a
psychiatric or a psychological evaluation?
-22- 6585
----------------------- Page 23-----------------------
A: I got a packet this thick of the results of the various
exams. I'm not sure that that was in there.
. . . .
Q: Do you have a recollection of the type of
psychological tests that you were given at the Servants
of the Paraclete?
. . . .
A: Quite a wide battery. The MMPI, a - I think there
were four psychological tests of the type where you
answer questions of one sort or another, and a
Rorschach.
Q: Do you recall the results of any of those tests?
A: No. I'm sorry.
Q: Did any of those tests reflect a personality disorder?
A: Not to my knowledge. I think I might have
remember[ed] . . .
Q: Any psychological diagnosis, such as might be found
in DSM-IV?
A: Not to my knowledge.
Q: Specifically, Mr. Nash, in this evaluation process,
were you tested for tendencies toward pedophilia?
A: I think so. I think the Rorschach was . . .
Q: I mispronounced that. Pedophilia is what I meant to
- how I meant to pronounce it.
A: I know what you mean.
Q: Were there any physical tests for pedophilia that were
administered to you . . . ?
A: No.
While the examination of Nash could have been more effective, we do not find his
answers particularly evasive, and they certainly cannot be described as the wholesale
"lack of recollection" upon which the Board denied Nash's application.
The evidence does not establish that Nash is feigning forgetfulness of a
diagnosis. If one assumes that the report contained a specific diagnosis, such as
pedophilia, Nash presumably could not forget such a conclusion. But Nash clearly stated
that he believes the tests did not point to a specific diagnosis of a personality disorder,
-23- 6585
----------------------- Page 24-----------------------
or any other diagnosis that might be found in the DSM-IV. Indeed, the testimony is
ambiguous as to whether Nash even received the results of each specific test, and does
not demonstrate that the tests were of a kind that produces a specific, quotable "result."
And even if the results from any of the tests were in the stack of psychological reports
Nash received, it is unremarkable that the results phrased in the technical jargon of
psychological testing would not produce memorable conclusions for a lay person 18
years later. This comports with Nash's memory, 18 years later, that the results
recommended he take part in the Jemez Springs program, and generally concluded that
Nash was "a physical and emotional wreck." Based on the bishop's encouragement of
Nash to continue as a priest, and Father Hoare's assertion that priests attended the center
for burn-out, there is simply no evidence to suggest that the evaluation resulted in a
memorable, specific diagnosis of a mental disorder which Nash now pretends to forget.
The Board's decision contains further mischaracterizations. The decision
found it "impossible to fathom" that Nash could not remember the details of the alleged
discharge report, because that report "derailed" Nash's career as a priest. This is simply
wrong. Whether the decision was referring to Nash's intake evaluation, or one of the
four progress reports, none of those derailed his career. The reports corresponded with
Nash's time at Jemez Springs, which was from January 1990 to May 1990. For the 15
years after that Nash continued his career as a priest. Nash's resignation was negotiated
in 2005 after a Diocese report condemned only the tickling and foot massages to which
Nash had already openly admitted. There is no evidence that the then 15-year-old Jemez
Springs reports led to Nash's resignation, or had any role in it.
-24- 6585
----------------------- Page 25-----------------------
The Board's decision also mischaracterized the statements of Nash's
attorney, Mark McCormick.17 The decision stated: "Only upon pointed questioning did
Mr. Nash's counsel finally admit that the facility was notorious as a treatment facility for
priests suffering from sexual disorders." Again, that is not true. The exchange began
with McCormick giving a lengthy description of the holistic programs at Jemez Springs,
noting that Father Hoare, the former director, testified that the facility treated more
routine issues such as burn-out. McCormick was then questioned by the board member
whose partner represented J.P.:
Q: Isn't it true that that was a treatment program for
clergymen who molested minors?
A: That was one - that was one thing that could be done
there. . . . But Father Hoare made it very clear that it
was in no way limited to that, that was just one of the
things that it was appropriate to handle.
17 In addition to mischaracterizing McCormick's statements, the decision
asserted that the statements were lies, viewed them as attributable to Nash, and concluded
accordingly that the lying was attributable to Nash. As discussed in this section, we find
no factual basis for the contention that McCormick lied - in fact, the decision never
documented support for its allegation.
Moreover, we find no support for the two legal bases on which the decision
attributed McCormick's purported lies to Nash. First, the decision cited Alaska Rule of
Evidence 801(d)(2), which pertains to party admissions - but that rule addresses only
whether an attorney's statement is inadmissible hearsay, not whether it can be attributed
to a client, let alone whether any illicit intention behind the statement can be attributed
to the client. Second, the decision cited Beaulieu v. Elliott, 434 P.2d 665, 669 (Alaska
1967), to show that admissions of fact are binding on a client. But the Board notably
omitted the portion of theBeaulieu quotation stating that admissions are binding only "if
they are made with the express purpose of dispensing with the formal proof of some fact
at the trial." Id. With knowledge of the full quotation, Beaulieu does not support
attributing McCormick's statement to Nash, let alone attributing McCormick's alleged
intent. It is also surprising for the decision to redact the statement in the manner it did,
given that the decision focused on candor.
-25- 6585
----------------------- Page 26-----------------------
. . . .
Q: Isn't that the reason that Father Nash was there? Or,
do you deny that that was the reason?
A: We deny that was the issue that he was there for. And
Bishop Kenny made a note that did surface in the
evidence in this case, that that was not what [Nash]
was there for.
McCormick did not, under pointed questioning, admit that Jemez Springs was notorious
for treating priests with sexual disorders, let alone indicate Nash had been there for that
18
reason.
Instead of pointing to an admission by Nash's attorney, the above
questioning demonstrates problems in the Board's analysis. Certainly it demonstrates
18 The Board's questioning is further troublesome because the board member
was the subject of an unsuccessful recusal request filed by Nash after the above
questioning. Nash requested that this board member disqualify himself because his
partner represented J.P. in J.P.'s sexual misconduct case against Nash. Alaska Bar Rule
6, section 6, requires board members to "disqualify themselves and withdraw from any
case in which they cannot accord a fair and impartial hearing," and Professional Conduct
Rule 1.10 imputes an attorney's conflict across the attorney's entire firm.
We have serious concerns about the impartiality of the decision in light of
this conflict. It is not difficult to draw a line from the board member's potential outside
information to questions such as those above, which occurred during the board meeting
and appear not to be based in the record. Indeed, this line is rather apparent in the
decision, which credits factual statements about Jemez Springs to board members'
outside knowledge, including knowledge gained from newspaper reports.
In a previous case, we concluded that "[a]n impartial tribunal is basic to a
guarantee of due process. . . . When an administrative official has participated in the past
in any advocacy capacity against the party in question, fundamental fairness is normally
held to require that the former advocate take no part in rendering the decision." Matter
of Robson, 575 P.2d 771, 774 (Alaska 1978). With approval, we cited the Second
Circuit's requirement that administrative hearings should seek not only fairness, but also
"the 'very appearance of complete fairness as well.' "Id. (quotingSimard v. Bd. of Educ.
of Town of Groton, 473 F.2d 988, 993 (2d Cir. 1973)).
-26- 6585
----------------------- Page 27-----------------------
a disconnect from the record, which was replete with testimony that Nash attended Jemez
Springs for more holistic concerns. But more fundamentally the exchange, and the use
of the exchange in the decision, demonstrates an attempt to show that Nash had lied by
showing that he had attended Jemez Springs for pedophilia or sexual abuse. This is
problematic, because the decision had already concluded that a preponderance of the
evidence did not support the allegations of sexual misconduct. It points out the larger
logical problem: To conclude Nash was lying, the decision assumed that the reports had
special significance, and that Nash had a reason to "forget" - essentially that he was
hiding the reports' conclusion that Nash was a pedophile. It is inconsistent for the
decision to assume underlying sexual misconduct when the decision had already found
that contention unsupported.
Without support in the record for such a contention, the decision reached
to an "admission" by Nash's attorney,19 and even ambiguous "press reports" not in the
record,20 to show that Jemez Springs treated priests with sexual disorders. This type of
analysis belies a conclusory slant that is contrary to the record. Moreover, this is a
poorly constructed argument as to Nash's alleged untruthfulness. The fact that a portion
of the facility treated priests with sexual disorders neither proves nor implies that Nash
attended the facility for treatment of a sexual disorder. And without pre-supposing that
19 See supra note 17 and accompanying text.
20 We note that reliance on the board members' memories of old press reports
- memories that were never mentioned openly in court and which neither party has had
the opportunity to review, rebut, or even know - raises serious due process concerns.
See, e.g., City of Fairbanks v. Alaska Pub. Utils. Comm'n, 611 P.2d 493, 495 (Alaska
1980) (holding that due process confines an agency to the record in order to (1) ensure
accurate findings, (2) allow for rebuttal and cross examination, and (3) provide a basis
for informed review).
-27- 6585
----------------------- Page 28-----------------------
Nash attended the facility for treatment of a sexual disorder, Nash's answers do not
demonstrate the propensity for lying which the Board's decision attributes to him.
Notably, although denying Nash's application based on candor, the decision
does not identify a single lie Nash told, nor any contradiction in his answers. It instead
appears to rely on Nash's demeanor in testimony that the Board did not hear. This is
inexplicable, particularly because the Board declined to question Nash directly when it
had the opportunity.
The Board concluded the issue of candor by asserting that since no records
exist, Nash must be lying:
Mr. Nash is likely the only individual alive with direct
knowledge and recall of the report's contents. Under these
circumstances, his claimed lack of memory is even more
damning and incredible. . . . The Board can come to no other
conclusion than there is something in the report that Mr. Nash
does not want the Board to learn.
On the contrary, there are other conclusions that could be drawn - the most plausible
being that the reports did not contain a memorable diagnosis of a psychological disorder.
This is particularly plausible because Nash was willing to have the Jemez Springs reports
introduced into the record before he learned that they had been destroyed.
Further, evidence in the record supports the contention that Nash attended
Jemez Springs for more benign reasons - that is, he had asked to leave the priesthood
because he was suffering burn-out and behaving or disciplining inappropriately - but
not that he had received a diagnosis that he was a pedophile. Father Hoare's testimony
indicated that burn-out was a common reason priests would attend the facility. Also, the
bishop handwrote notes in Nash's personnel file indicating that Nash was at Jemez
Springs "for himself & not because he had ever molested anyone" and other consistent
remarks. A letter from the Archbishop Emeritus of Anchorage, based on personal
-28- 6585
----------------------- Page 29-----------------------
knowledge, confirmed that then-Bishop Kenny of Juneau considered Nash to be "OK"
after Jemez Springs and returned Nash to his prior assignment. And Juneau's later
bishop, Bishop Warfel, testified that when he took over as bishop in Juneau in the mid-
1990s, his impression, based on discussions with Nash and other church officials, was
that the allegations against Nash concerned little more than "horse play" and that Nash
was at Jemez Springs for issues like burn-out and depression. Also, Father Hoare
indicated that the facility would not have released a priest who posed a threat to the
community. Ultimately, it does not appear there was a specific diagnosis, such as
pedophilia, made of Nash, and there is insufficient evidence to support the conclusion
that Nash was untruthful by feigning not to remember such a diagnosis in the reports.
In sum, the Board's conclusion that Nash lied because he could not
remember a career-ending discharge report - when it is not certain that a discharge
report ever existed, when it is not certain that Nash received it if it did exist, and when
it is clear that any such report did not end his career - is simply not supported. We set
aside that conclusion as premised on misstatements of the record. Applying our
independent judgment, we have carefully reviewed the record, including Nash's
testimony regarding the intake evaluation and related evidence. Finding no evidence that
there was a specific diagnosis, and no documented lies or conflicting testimony, we hold
that Nash's alleged lack of memory as to specific results from 18-year-old psychological
exams neither evidences a lack of candor nor justifies denying his bar application.
B. The Single Allegation Of Evidence Destruction Is Not Supported By
The Record And Does Not Warrant A Negative Character
Determination.
The Board denied Nash's application based on the above candor issue.
However, the decision also made a separate finding, suggesting that Nash had destroyed
evidence. Although the decision stated that this finding was probably insufficient alone
-29- 6585
----------------------- Page 30-----------------------
to deny Nash's application, we address it as part of our independent review. We agree
that the affidavit concerning evidence destruction is insufficient to deny Nash's
application, and find further that it is not supported by the evidence.
This destruction of evidence claim is based on a church employee's 2003
affidavit, which had been discussed in neither the hearing master's proceeding nor her
report to the Board. The employee alleged that Nash had a key to church files and access
to a paper shredder while he served as interim bishop during 1995, after Bishop Kenny's
death. The employee alleged the files had contained "recognizable" manilla envelopes
earlier, and no longer contained those envelopes when Nash returned the key. The
envelopes allegedly contained records from Nash's time at Jemez Springs.
The affidavit was part of the background material given to the psychiatrist
evaluating Nash prior to his Iowa Bar admission. The affidavit is in the record because,
perhaps more indicative of candor than a lack of candor, Nash turned over all the
background information to the Alaska Bar to show that there was a strong foundation for
the psychiatrist's findings - no evidence that Nash suffers from a psychiatric disorder,
no evidence that he presents a risk of abusing minors or adults, and no evidence of other
disorders or traits unbecoming a lawyer.
-30- 6585
----------------------- Page 31-----------------------
Preliminarily, Bar Rule 7, section 4, precludes basing a finding solely on
hearsay evidence.21 Accordingly, without other evidence supporting the alleged
destruction of evidence, it is not proper to base a finding on the affidavit alone.22
The affidavit does not warrant denying Nash's application. The affidavit
is circumstantial evidence, stating that the envelopes disappeared while Nash had access.
The affidavit rests on the assumptions that particular manilla envelopes contained
information from Jemez Springs and that the church employee's memory of which
manilla envelopes were in the church files at the time of Bishop Kenny's death was
accurate. No aspect of the affidavit is corroborated, except for the fact that Nash filled
in as interim bishop. The event described in the affidavit preceded the affidavit by
approximately eight years. The employee did not appear and was not subject to cross-
examination or questioning before the hearing master.
When the Board brought up the affidavit in oral argument, Nash's attorney
noted it had not been discussed below, pointed to evidence tending to show that Bishop
Kenny himself had destroyed the files, and pointed out an apparent inconsistency in the
affidavit.23 Despite this, and without any additional information, the Board's decision
21 Bar Rule 7, section 4, provides, in pertinent part:
Hearsay evidence may be used for the purpose of
supplementing or explaining other evidence but shall not be
sufficient standing alone to support a finding unless it would
be admissible over objections in civil actions.
22 Because both parties refer to the affidavit as hearsay, we assume, without
deciding, that the affidavit is indeed hearsay.
23 The alleged inconsistency was that the affidavit suggested that two priests
had identical manilla envelopes from Jemez Springs, but McCormick stated that the other
priest had not attended Jemez Springs.
-31- 6585
----------------------- Page 32-----------------------
asserted that the affiant "is reliable" and that "[t]here seems no reason for [her] to lie."
We cannot agree. The allegations in the affidavit have not been submitted to the scrutiny
we expect of evidence upon which a bar application is denied.
Further, Nash submitted evidence rebutting the affidavit. Supporting the
contention that Bishop Kenny destroyed the documents, the record contains the cover
sheet to the report, which states: "[These documents] ARE TO BE DESTROYED OR
RETURNED TO FR. LIAM HOARE . . . WHO WILL SEE TO THEIR DISPOSAL."
Corroborating this, Father Hoare testified that standard practice was to destroy the
reports, and that he expected Bishop Kenny to have done so.24 Nash testified that Bishop
Kenny told Nash the documents had been destroyed. And Nash's attorney mentioned the
testimony of an Alaska attorney who stated that Bishop Kenny had told him (the Alaska
attorney) that the documents had been destroyed.25
Weighing the evidence contradicting the affidavit, the Board's decision
called the issue a "tie." We disagree. Even putting aside the question of whether the bar
rules allow reliance on the affidavit, and putting aside the untested nature of the affidavit
and questions about it, the record nonetheless contains credible evidence suggesting how
the reports in question were destroyed, and does not support finding that Nash destroyed
the reports.
24 Because the entity that created the documents required that they be
destroyed, it would not necessarily have been inappropriate had Nash, while serving as
bishop, destroyed them, and we would not necessarily conclude that destroying the
documents in 1995 points to destruction of evidence for a hearing that occurred over ten
years later. All the same, Nash testified that he did not destroy the documents.
25 As the issue did not come up below in the Alaska hearings, this evidence
was not introduced to the Alaska hearing master.
-32- 6585
----------------------- Page 33-----------------------
C. The Record Supports Approving Nash's Moral Character Application.
Bar Rule 2, section 1(d), requires that every applicant to the Alaska Bar
"[b]e one whose conduct justifies the trust of clients, adversaries, courts and others with
respect to the professional duties owed to them." The rule lists ten situations that trigger
heightened scrutiny; three are relevant to Nash's application:
(3) making of false statements under oath or affirmation,
including omissions;
(4) acts involving dishonesty, fraud, deceit or
misrepresentation; . . . [and]
(7) evidence of mental or emotional disorders . . . .[26]
Assessing these situations, the following factors should be considered:
(1) the applicant's age at the time of the conduct or
condition;
(2) the recency of the conduct or condition;
(3) the reliability of the information concerning the
conduct or condition;
(4) the seriousness of the conduct or condition;
(5) the circumstances surrounding the conduct or
condition;
(6) the cumulative effect of conduct, condition or
information;
(7) the evidence of stabilization or rehabilitation;
(8) the applicant's positive social contribution since the
conduct or condition;
(9) the applicant's truthfulness in the admissions process;
and
(10) the materiality of any omissions or
misrepresentations.[27]
Based on these guidelines, we find that Nash has the moral character
requisite to practice law in Alaska. We review below the relevant components of this
26 Alaska Bar R. 2, § 1(d).
27 Id.
-33- 6585
----------------------- Page 34-----------------------
decision, focusing on each of the three situations that trigger scrutiny according to Bar
Rule 2, section 1(d).
The first relevant situation is the making of false statements, including
omissions.28 There are two such allegations in the record, one alleging Nash was
untruthful with answers about Jemez Springs, and the second contending Nash was
untruthful in characterizing his departure from the priesthood. We discussed the first in
depth above, and find no support for it. The second is likewise unsupported. Bishop
Warfel alleged that Nash improperly characterized his departure from the priesthood as
a resignation, when it should have been referred to as a dismissal. But the language Nash
used was expressly authorized by a settlement agreement between him and the church
and, when testifying, the bishop could not point to inconsistent language used by Nash.29
Accordingly, we find that the record does not support finding against Nash based on the
making of false statements.
The second relevant situation raised in Bar Rule 2 is acts involving
dishonesty.30 This relates to the allegation that Nash destroyed documents. Although
destruction of the documents was arguably proper in light of the requirement that they
be destroyed, Nash testified that he did not destroy them, and accordingly we address the
dispute concerning their destruction. The affidavit containing the allegation is hearsay,31
on which a finding may not rest, per Bar Rule 7, section 4. Further, as discussed above,
28 Alaska Bar R. 2, § 1(d)(3).
29 We note also that the language used in the Latin proclamation was in no
way certain, and Nash's reading is supported by outside commentators as well as the
situation in which his departure from the priesthood came about.
30 Alaska Bar R. 2, § 1(d)(4).
31 See supra note 22.
-34- 6585
----------------------- Page 35-----------------------
the affidavit is not supported by evidence in the record. Finally, the affidavit's
persuasive force is weakened under factors set out in Bar Rule 2, including the reliability
of the information containing the allegation and the absence of similar allegations.32 As
noted above, we ultimately conclude that the evidence does not support the affidavit's
implication that Nash destroyed the files.33
The third relevant situation concerns mental or emotional disorders.34 The
Board's decision implies that Nash was diagnosed with or treated for sexual disorders,
which could be pertinent to Bar Rule 2, section 1(d)(7). However, there is no actual
32 Alaska Bar R. 2, § 1(d), factor (3).
33 We consider but decline to remand the affidavit issue to the Board for
additional consideration. The affidavit is an insufficient basis on which to deny Nash's
application. The only remaining question is whether a remand for further investigation
on this issue is in order. We conclude that it is not: At some point, an examination must
end, and we believe this is that point. Nash's bar application has been the subject of
multiple processes, requiring extensive documentation. We cannot say there is an
insufficient record, particularly since we have now reached the level of detail of
reviewing a 14-year-old hearsay allegation that was background information for a
psychiatrist's evaluation, and the Diocese's own report - both of which declined to
conclude against Nash.
We are further persuaded by our decision not to remand in Matter of
Robson, 575 P.2d 771, 775 (Alaska 1978). There, considering a well-meaning board
whose actions nonetheless gave an appearance of impropriety, we decided that "[i]f the
. . . Board members were in any manner influenced . . . there is no way that we can assure
the removal of such an effect from their findings." Id. at 775-76. We were also
concerned about the prejudice a delay would cause. Id. at 776. We concluded: "Since,
regardless of [actual impropriety], we believe that there is a fatal appearance of lack of
impartiality, we decided to for[]go [a remand] in order to conclude this matter
expeditiously." Id. at 773 n.3. Because the case before us today has raised several
irregularities concerning the handling of the case below, we are not persuaded that
accuracy, expediency, or public confidence is best served by a remand.
34 Alaska Bar R. 2, § 1(d)(7).
-35- 6585
----------------------- Page 36-----------------------
evidence of such a diagnosis. Nash testified that he was not diagnosed. Other evidence
corroborates the assertion that Nash's time at Jemez Springs was not due to a specific
diagnosis. And, importantly, a recent psychiatric exam of Nash found no evidence that
he suffers from a psychiatric disorder, no evidence that he presents a risk of abusing
minors or adults, and no evidence of other disorders or traits unbecoming a lawyer.
Of course, there is additional evidence in the record, including an allegation
that Nash sexually assaulted J.P. However, multiple tribunals have found those
allegations unsupported or insufficient,35 the Alaska prosecutor declined to prosecute
Nash, and no court of law has tried Nash on the charge. The record does not contain
evidence to support a finding of Nash's guilt, and we do not presume Nash to be guilty.
There is evidence of inappropriate sexual conduct from the 1980s: Nash
has admitted to the tickling, massages, and calisthenics imposed on youth on his trips.
Nash has demonstrated contrition for those actions and apologized to those affected.
Nash long ago vowed to change his behavior and there are no recent reports of any such
activity. Both the Iowa Supreme Court36 and the Board of Governors of the Alaska Bar
Association have reviewed these allegations of misconduct, and neither found the
conduct to warrant denying Nash's application. We agree, particularly in light of the
factors from Bar Rule 2, section 1(d), including the recency of the conduct, the evidence
of rehabilitation, and the applicant's truthfulness regarding the situation.37
The record contains positive testimony from many individuals and 52 letters
of recommendation supporting Nash's application. These are compelling letters,
35 See, e.g., In re Nash, 739 N.W.2d 71, 73 n.3 (Iowa 2007).
36 Id. at 75.
37 Alaska Bar R. 2, § 1(d), factors (2), (7), and (9), respectively.
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documenting knowledge of Nash from many perspectives and many points in his life.
They recommend Nash as a trustworthy and compassionate person, and as someone
possessing the requisite maturity and skills to serve this state as an attorney. This
evidence is supported by a psychiatric report on Nash. Further, Nash appears to have
been truthful in the application process as evidenced by his disclosures on the application
form, his cooperation in having evidence discovered and compiling a robust record, and
his candor in providing full information to his many recommenders. The record thus
developed is abundant, spanning hundreds of pages. Despite the allegations discussed
in depth above - which we find unsupported - the record contains no confirmed
instances of Nash lying, committing illegal acts, omitting information, or otherwise
behaving dishonestly. Rather, the impression one is left with is of a man who has the
support of those who have known and worked with him. It appears Nash had periods of
difficulty in his life, but there is evidence of sincere remorse, reflection, and growth, and
we do not find evidence of recent inappropriate acts or acts justifying denying Nash's
application.
V. CONCLUSION
Because we find that it was based on misstatements of the record, we
VACATE the decision below. Applying our independent judgment and reviewing the
entirety of the record before us, we find Nash to have the requisite character to satisfy the
requirements of Alaska Bar Rule 2, section 1(d). We ORDER the Board to process
Nash's application in a manner consistent with this opinion.
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FABE, Justice, dissenting.
The court today finds Michael Nash to have satisfied the moral character
requirement for admission to the Alaska Bar. The court's decision relies in significant
part on its conclusion that "the record contains no confirmed instances of Nash lying,
committing illegal acts, omitting information, or otherwise behaving dishonestly."1 But
like the Board of Governors, we have not heard directly from Nash on the issues in
contention in this case. The only finding we have on Nash's honesty is from the hearing
master, Mary K. Hughes, who heard Nash testify and found that "Nash's lack of memory
re: the evaluation is not credible." Because this court is not well situated to overrule the
hearing master's determination of Nash's credibility, I believe that this case should be
remanded to the Board for a new hearing that would be free of any of the procedural
shortcomings identified by the court's decision.2
I agree with the court that the Board's decision cannot be affirmed in light
of the flaws in the Board's procedure and the erroneous findings that underpin its
decision. But the record before the court does not allow us to conclude with confidence
that Nash has met his burden of establishing that he is "one whose conduct justifies the
trust of clients, adversaries, courts and others."3 As the court recognizes, in Alaska, "the
applicant [bears] the burden of proving the material facts upon which the applicant
relies."4 Although in disciplinary proceedings the Bar Association must prove the
1 Slip Op. at 37.
2 Slip Op. at 26 n.18.
3 Alaska Bar R. 2, § 1(d).
4 Alaska Bar R. 6, § 3; see Slip Op. at 15.
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charges of attorney misconduct by clear and convincing evidence,5 it is the applicant for
certification who bears the burden of demonstrating the requisite character to practice.6
In deciding to grant Nash's application to the Alaska Bar, the court emphasizes the lack
of record support for the Board's factual findings that weigh against Nash's admission.
There is a significant difference, however, between a record that fails to support the
findings of the Board and a record that proves by a preponderance of the evidence that
Nash has demonstrated the requisite character required by Bar Rule 2, section 1(d). The
court's decision goes beyond identifying the problems with the Board's decision and
procedure - it entirely releases Nash from his burden, simply admitting Nash to the Bar
despite the existence of serious, unresolved questions regarding his honesty and candor
during the application process.
The hearing master found that Nash's lack of memory on a critical issue of
fact was "not credible." During its hearing, the Board did not hear testimony from Nash
himself, but instead heard only from Nash's attorney. At this juncture, therefore, Nash
has only testified before the hearing master, so we are left only with her finding that his
purported lack of memory is not credible. "Credibility determinations made by the trier
of fact are generally left undisturbed by this court on review."7 And the hearing master's
finding is significant because it relates to Nash's purported lack of memory about his
intake evaluation at the Jemez Springs treatment facility. The hearing master's finding
that "Nash's lack of memory re: the evaluation is not credible and it is unfortunate that
the records are not existent" is relevant to two factors listed by Alaska Bar Rule 2,
5 In re Ford, 128 P.3d 178, 180 (Alaska 2006).
6 See, e.g., Seide v. Comm. of Bar Exam'rs, 782 P.2d 602, 604 (Cal. 1989)
(in bank); In re Bowen, 447 P.2d 658, 660 (Nev. 1968).
7 Municipality of Anchorage, Police & Fire Ret. Bd. v. Coffey, 893 P.2d 722,
728 (Alaska 1995).
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section 1(d) "as cause for further inquiry" before a decision should be made on the
question whether the applicant possesses the character and fitness to practice law:
"(3) making of false statements under oath or affirmation, including omissions" and
"(7) evidence of mental or emotional disorders." If Nash was not truthful in his
testimony before the hearing master, as her credibility finding suggests, this lack of
candor could itself constitute "[c]onduct manifesting a significant deficiency in the
honesty, trustworthiness, diligence or reliability of an applicant."8
Honesty is perhaps the most important attribute of the moral character
qualification for bar membership, and an applicant's failure to answer truthfully
questions associated with his or her application to the bar weighs against admission.9 As
the Connecticut Supreme Court explained: "It is not enough for an attorney that he be
honest. He must be that, and more. He must be believed to be honest."10 The hearing
master's finding also casts doubt on Nash's assertion that he was not diagnosed with or
treated for any psychological or personality disorders at the facility in Jemez Springs.11
8 Alaska Bar R. 2, § 1(d).
9 See, e.g., In re Green, 464 A.2d 881, 885 (Del. 1983) ("Good moral
character has many attributes, but none are more important than honesty and candor.");
In re Stern, 943 A.2d 1247, 1258 (Md. 2008) ("We have emphasized the importance of
candor in . . . the Bar application process."); In re Allan S., 387 A.2d 271, 275 (Md.
1978) ("[N]o moral character qualification for Bar membership is more important than
truthfulness and candor."); Strigler v. Bd. of Bar Exam'rs, 864 N.E.2d 8, 11 (Mass. 2007)
("An applicant's failure to answer all of the board's questions candidly, both on the
application and at any hearing, is a powerful indication that the applicant lacks the good
character required for admission to the bar.")
10 Doe v. Connecticut Bar Examining Comm., 818 A.2d 14, 24 (Conn. 2003)
(quoting Scott v. State Bar Examining Comm., 601 A.2d 1021, 1026 (Conn. 1992)).
11 Municipality of Anchorage, Police & Fire Ret. Bd., 893 P.2d at 729 (citing
Innes v. Beauchene, 370 P.2d 174, 177 (Alaska 1962)) (recognizing that "the witness's
(continued...)
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The court focuses on the Board's mistakes in characterizing the record and
concludes that Nash's "alleged lack of candor . . . was based on factual assertions having
no basis in the record."12 Yet the Board's finding did have factual support - the hearing
master's credibility finding. Moreover, the court relies on its somewhat generous
characterization of the facts in the record to conclude that Nash does possess "the moral
character requisite to practice law in Alaska."13 The court, for example, calls the letters
submitted to the Iowa Bar "compelling" and "impressive in their breadth and depth" and
asserts that the letters make it "appear[] that Nash has been forthright regarding the
allegations against him."14 Thus, the court concludes, remand is unnecessary because of
the extensive record that has been developed in this case.15 I disagree.
11 (...continued)
demeanor may convince the trier of fact that the truth lies directly opposite of the
statements of the witness, especially wherethe witness is interested in the outcome of the
case").
12 Slip Op. at 18.
13 Slip Op. at 34.
14 Slip Op. at 12. The court also quotes at length from the Iowa Supreme
Court's decision that allowed Nash to sit for that state's bar examination. Slip Op. at 13-
14. But it is our responsibility to independently review the proceedings before the
Alaska Bar Association to protect the Alaskan public. As we have noted, "[n]o matter
how learned in the law [applicants] may be . . . [they] can never be admitted to the bar
until [they] can satisfy the court that [they] possess[] that first requisite to admission to
the bar, a good moral character." In re Buckalew, 731 P.2d 48, 55 n.27 (Alaska 1986)
(quoting Ex Parte Thompson, 152 So. 229, 238 (Ala. 1933)).
15 Slip Op. at 35 n.33.
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Given the posture of this matter, where there were procedural flaws in the
Board's hearing and where its findings of fact were not adequately supported by the
record, the proper remedy is not simply to admit Nash - any more than it is to deny him
admission. Nash must be allowed the opportunity to meet his burden of proving that he
satisfies the requirements set forth in the Bar Rules through a meaningful hearing before
the Board.16 Remand is appropriate in this case because of the seriousness of the hearing
master's credibility finding and because Nash is entitled to have the Board consider his
application in an impartial hearing.17
When faced with a similar situation where a decision by the state bar
examining committee was not supported by factual findings, a Connecticut appellate
court declined to admit the applicant to the Connecticut Bar.18 The Connecticut court
held that remand for further factual findings was the proper remedy because the bar
examining committee had failed to make findings of fact that were essential to the
appellate court's review of the decision.19 Similarly, in this case Nash must be given a
fair hearing before the Board so that the Board can either adopt the factual findings of the
hearing master or make its own findings.
16 See In re Peterson, 459 P.2d 703, 706 n.7a (Alaska 1969) ("[T]his court will
not undertake to review the merits of an appeal until the unsuccessful applicant has been
accorded a meaningful appellate hearing before the Board of Governors."); see also City
of Nome v. Catholic Bishop of N. Alaska, 707 P.2d 870, 876-77 (Alaska 1985)
(exercising the court's equitable power to remand portions of the case to an
administrative agency to allow a party to submit additional evidence).
17 See Alaska Bar R. 6, § 6; In re Robson, 575 P.2d 771, 773-74 (Alaska
1978).
18 Friedman v. Connecticut Bar Examining Comm., 824 A.2d 866, 877 (Conn.
App. 2003).
19 Id.
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On remand, the hearing before the Board could be free of any procedural
deficiencies or potential biases identified by the court's opinion.20 The Board could make
further findings of fact, including a finding on Nash's credibility supported by record
evidence. Nash would have the opportunity to testify directly before the Board. In
addition to allowing the Board to consider Nash's credibility, remand would provide an
opportunity for the Board to seek additional evidence to supplement the factual record
on the allegations that Nash destroyed relevant documents and to contact the
professionals at Jemez Springs who evaluated and treated him there.
Although I share the court's concerns regarding the Board's procedures and
the lack of support for its factual findings in this case, I respectfully dissent from the
court's decision to apply its independent judgment and admit Nash. I would remand to
the Board for a further evidentiary hearing and additional findings by the Board.
20 Slip Op. at 26 n.18.
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