.
Although children can be depressed for many reasons, new evidence suggests that there are physiological differences among depressed children based on their experiences of abuse before age 5. Early abuse may be especially damaging due to the very young age at which it occurs....The study appears in the January/February 2010 issue of the journal Child Development here:
Early Abuse Tied to More Depression in Children ScienceDaily (Feb. 7, 2010)
Only children who were abused before age 5 and depressed had an atypical flattening of cortisol production during the day, whereas other children, whether they were depressed or not, showed an expected daily decline in cortisol from morning to afternoon....
Children who experience maltreatment, including physical, sexual, and emotional abuse or neglect, grow up with a lot of stress. Cortisol, termed the "stress hormone," helps the body regulate stress. But when stress is chronic and overloads the system, cortisol can soar to very high levels or plummet to lows, which in turn can harm development and health. ...
.
City of Angels hopes to be publishing again soon...
ke
Thursday, February 25, 2010
Tuesday, February 23, 2010
Good News For Everyone- Except those crime victims over age fifty
.
Arizona lawmakers are breezing to passage a bill to remove the statute of limitations on child sex crimes, which will be hailed as great for the adult victims, as it should be, as removing the SOL is one heck of a deterrent, in other words:
Hey, all you child sex predators out there, from now on in Arizona no matter how old your victim gets, they can sue you for your crimes. Other states may be soon to follow.
Still, why don't lawmakers see the imbalance in opening the doors of justice for everyone in the world except us old folks, who lived in a culture where No One Ever Even Mentioned what we went through, yet we still went through it. In Arizona, a one-year window opens for crimes that happened in the last 35 years.
Why 35 years?
Why this arbitrary number that throws out the individuals who suffered the longest and have the least opportunity to ever put their lives back together again?
Us older folks are always the ones who get negotiated out in lobbying the last few years to make child sex crime statutes more reasonable. I watched it happen in Illinois last September.
I guess us little old ladies are supposed to go back to our rooms and nurse our bed-bug bites.
Here from Arizona:
Time-limit ban for abuse victims to sue attackers OK'd
PHOENIX (AZ)Arizona Daily Sun HOWARD FISCHER
Capitol Media Services Posted: Tuesday, February 23, 2010
PHOENIX -- State lawmakers voted Monday to give childhood victims of sex abuse an entire lifetime to sue those who assaulted them.
Without dissent, the Senate Judiciary Committee approved a measure to repeal the existing laws that require civil suits to be filed within two years of someone turning 18. For incidents that take place in the future, there will be no statute of limitations.
SB 1292 also opens a window for those who were abused in the past 35 years, giving them one year from the time the law takes effect to file suit, even if the time limit had previously run out....
.
Story found through Abuse Tracker
City of Angels is temporarily down but not out.
.
******
More from Today's news:
Six reasons why I want to be excommunicated
IRELANDThe Irish Times
OPINION: The anger among survivors of clerical sex abuse at the failure of the Catholic Church to deal adequately with the issue has prompted some formally to leave the church. This is my letter to Archbishop Diarmuid Martin seeking excommunication, writes BERNICE DONOGHUE
Dear Archbishop Martin,
I AM writing to request the amendment of my details in the baptismal register for the Parish of Mount Merrion in the Archdiocese of Dublin, where I was baptised. I made the decision to leave the church over 30 years ago, but recently have discovered that I continue to be included in the church’s internal statistics. I strongly object to this inclusion as I do not consider myself to be a member of the Catholic Church, hence I am asking you to amend the baptismal register to reflect this fact. In short, I wish to be excommunicated from the Roman Catholic Church.
My reasons for leaving the Catholic Church are as follows:
1 I do not want to be a member of a church that aided and abetted a paedophile so that he could rape and sexually abuse me for four years of my childhood. I was abused by the Norbertine priest Brendan Smyth.
When he was finally arrested and tried for his crimes I was horrified to learn how the church had handled over four decades the allegations against him. Time and again, his victims were ignored or silenced in order to preserve the church’s position, and so he was able to continue his crimes against children with impunity. After Brendan Smyth’s trial and conviction in 1997 ...
Arizona lawmakers are breezing to passage a bill to remove the statute of limitations on child sex crimes, which will be hailed as great for the adult victims, as it should be, as removing the SOL is one heck of a deterrent, in other words:
Hey, all you child sex predators out there, from now on in Arizona no matter how old your victim gets, they can sue you for your crimes. Other states may be soon to follow.
Still, why don't lawmakers see the imbalance in opening the doors of justice for everyone in the world except us old folks, who lived in a culture where No One Ever Even Mentioned what we went through, yet we still went through it. In Arizona, a one-year window opens for crimes that happened in the last 35 years.
Why 35 years?
Why this arbitrary number that throws out the individuals who suffered the longest and have the least opportunity to ever put their lives back together again?
Us older folks are always the ones who get negotiated out in lobbying the last few years to make child sex crime statutes more reasonable. I watched it happen in Illinois last September.
I guess us little old ladies are supposed to go back to our rooms and nurse our bed-bug bites.
Here from Arizona:
Time-limit ban for abuse victims to sue attackers OK'd
PHOENIX (AZ)Arizona Daily Sun HOWARD FISCHER
Capitol Media Services Posted: Tuesday, February 23, 2010
PHOENIX -- State lawmakers voted Monday to give childhood victims of sex abuse an entire lifetime to sue those who assaulted them.
Without dissent, the Senate Judiciary Committee approved a measure to repeal the existing laws that require civil suits to be filed within two years of someone turning 18. For incidents that take place in the future, there will be no statute of limitations.
SB 1292 also opens a window for those who were abused in the past 35 years, giving them one year from the time the law takes effect to file suit, even if the time limit had previously run out....
.
Story found through Abuse Tracker
City of Angels is temporarily down but not out.
.
******
More from Today's news:
Six reasons why I want to be excommunicated
IRELANDThe Irish Times
OPINION: The anger among survivors of clerical sex abuse at the failure of the Catholic Church to deal adequately with the issue has prompted some formally to leave the church. This is my letter to Archbishop Diarmuid Martin seeking excommunication, writes BERNICE DONOGHUE
Dear Archbishop Martin,
I AM writing to request the amendment of my details in the baptismal register for the Parish of Mount Merrion in the Archdiocese of Dublin, where I was baptised. I made the decision to leave the church over 30 years ago, but recently have discovered that I continue to be included in the church’s internal statistics. I strongly object to this inclusion as I do not consider myself to be a member of the Catholic Church, hence I am asking you to amend the baptismal register to reflect this fact. In short, I wish to be excommunicated from the Roman Catholic Church.
My reasons for leaving the Catholic Church are as follows:
1 I do not want to be a member of a church that aided and abetted a paedophile so that he could rape and sexually abuse me for four years of my childhood. I was abused by the Norbertine priest Brendan Smyth.
When he was finally arrested and tried for his crimes I was horrified to learn how the church had handled over four decades the allegations against him. Time and again, his victims were ignored or silenced in order to preserve the church’s position, and so he was able to continue his crimes against children with impunity. After Brendan Smyth’s trial and conviction in 1997 ...
Monday, February 22, 2010
From Germany: Child sex abuse cases in the Catholic Church that have been revealed since mid-January 2010
.
[summary] Cases of child sexual abuse in the Catholic Church that have been revealed since mid-January in Germany.
In mid-January, Father Klaus Mertes, rector of Berlin's Canisius College, informed 500 students by letter that possible abuse occured at the school from 1975 to 1983. He apologized that staff had a blind eye to the allegations and he asked for victims to come foward.
Jan. 29: Father Mertes admitted at a press conference of seven previously known cases of abuse by two priests. The Berlin public prosecutor took over the investigation.
Jan. 29: The Berlin archdiocese acknowledged investigation into abuse against a former priest at Holy Cross parish in Berlin-Hohenschoenhausen. The incidents are alleged to have happened in 2001 but was known to the archdiocese since the summer of 2009.
Feb. 1: The scandal began to spread nationwide. Father Stefan Dartmann said during a visit to Berlin that 25 victims were known. Besides 20 students at Canisius, there were three at St. Ansgar School, Hamburg, and two at St. Blaise school in the Black Forest. The accused priests, Peter R. and Wolfgang P., were former Jesuits but were active in other Catholic institutions at home and abroad.
Feb. 2: The scandal moved to the Hildescheim diocese where one of the two accused former Jesuit priests served as pastor from 1982 to 2003. Two cases of sexual assault were known. Bishop Josef Homeyer said from today's perspective the allegations were seriously and implications for further developments were clearly underestimated. The Germany bishops were set to discuss the abuse issue at their plenary meeting to be held in Freiburg from Feb. 22 to 25.
Feb. 3: In Berlin, cases of abuse surfaced by one priest who was also a religion teacher at Notre Dame Catholic School. The Berlin archdiocese announced an investigation. Shortly therafter, Hans Langendorfer, secretary of the bishops' conference, said all cases of abuse would be investigated.
Feb. 7: Lawyer Ursula Raue, representing the Jesuit order, said that 30 former pupils of Canisius College had been abused. Additional cases were revealed in Bonn, Hamburg and St. Blaise. Pope Benedict XVI condemened sexual abuse of minors shortly thereafter as a violation of the rights of children.
Feb. 12: Berlin Cardinal Georg Sterzinky said the credibility of dedicated priests and teachers should not be destroyed because of the guilt of individuals. He also acknowledged shortcomings in the investigation of abuse cases.
Feb. 16: Bishop Walter Mixa of Augsburg attributed the abuse cases to increasing sexuality in public life and pointed to what he called abnormal sexual preference. He said incidents within the church were small.
Feb. 18: At least 115 victims of abuse since the 1950s were known in Jesuit schools. The sexual assaults were not isolated but were systematically committed. Meanwhile, reports on cases of sexual abuse involving the Pallottines began to surface. A student at the former St. Albert Seminary on the Rhine river Near Bonn said two years ago he reported that he and two other boys were abused in the early 1960s by a priest. The accused priest left the order in the 1960s and the school closed in 1967.
Feb. 20: Abuse cases were reported at two former homes of the Salesians of Don Bosco in Augsburg and Berlin. Also affected were the Daughters of Charity and a former children's home in Upper Swabia, the Marist board school in Mindelheim, Bavaria, and the former Franciscan boarding school in Grosskrotzenburg, Hanau. A large number of abuse allegations were made against former employees of the Franz-Sales House in Essen, a well-known facility for disabled people. An allegation was also made at St. Louis College. The federal justice minister urged the bishops to take action.Feb. 22: Archbishop Robert Zollitsch, who heads the bishops' conference, is expected to make his first statement on the scandal at the bishops spring meeting.
ORIGINALLY POSTED by Kathy Shaw at Abuse Tracker
FROM:
Immer neue Missbrauchsfälle: Eine Chronologie
GERMANYZDF heute
Bischofskonferenz will erstmals Stellung nehmen
Mitte Januar wurden Missbrauchsfälle an einer Berliner Jesuitenschule publik - und seitdem gibt es ständig neue Vorwürfe. Die lange Liste der Missbrauchsfälle und das Schweigen der Kirche: ein Überblick.
[summary] Cases of child sexual abuse in the Catholic Church that have been revealed since mid-January in Germany.
In mid-January, Father Klaus Mertes, rector of Berlin's Canisius College, informed 500 students by letter that possible abuse occured at the school from 1975 to 1983. He apologized that staff had a blind eye to the allegations and he asked for victims to come foward.
Jan. 29: Father Mertes admitted at a press conference of seven previously known cases of abuse by two priests. The Berlin public prosecutor took over the investigation.
Jan. 29: The Berlin archdiocese acknowledged investigation into abuse against a former priest at Holy Cross parish in Berlin-Hohenschoenhausen. The incidents are alleged to have happened in 2001 but was known to the archdiocese since the summer of 2009.
Feb. 1: The scandal began to spread nationwide. Father Stefan Dartmann said during a visit to Berlin that 25 victims were known. Besides 20 students at Canisius, there were three at St. Ansgar School, Hamburg, and two at St. Blaise school in the Black Forest. The accused priests, Peter R. and Wolfgang P., were former Jesuits but were active in other Catholic institutions at home and abroad.
Feb. 2: The scandal moved to the Hildescheim diocese where one of the two accused former Jesuit priests served as pastor from 1982 to 2003. Two cases of sexual assault were known. Bishop Josef Homeyer said from today's perspective the allegations were seriously and implications for further developments were clearly underestimated. The Germany bishops were set to discuss the abuse issue at their plenary meeting to be held in Freiburg from Feb. 22 to 25.
Feb. 3: In Berlin, cases of abuse surfaced by one priest who was also a religion teacher at Notre Dame Catholic School. The Berlin archdiocese announced an investigation. Shortly therafter, Hans Langendorfer, secretary of the bishops' conference, said all cases of abuse would be investigated.
Feb. 7: Lawyer Ursula Raue, representing the Jesuit order, said that 30 former pupils of Canisius College had been abused. Additional cases were revealed in Bonn, Hamburg and St. Blaise. Pope Benedict XVI condemened sexual abuse of minors shortly thereafter as a violation of the rights of children.
Feb. 12: Berlin Cardinal Georg Sterzinky said the credibility of dedicated priests and teachers should not be destroyed because of the guilt of individuals. He also acknowledged shortcomings in the investigation of abuse cases.
Feb. 16: Bishop Walter Mixa of Augsburg attributed the abuse cases to increasing sexuality in public life and pointed to what he called abnormal sexual preference. He said incidents within the church were small.
Feb. 18: At least 115 victims of abuse since the 1950s were known in Jesuit schools. The sexual assaults were not isolated but were systematically committed. Meanwhile, reports on cases of sexual abuse involving the Pallottines began to surface. A student at the former St. Albert Seminary on the Rhine river Near Bonn said two years ago he reported that he and two other boys were abused in the early 1960s by a priest. The accused priest left the order in the 1960s and the school closed in 1967.
Feb. 20: Abuse cases were reported at two former homes of the Salesians of Don Bosco in Augsburg and Berlin. Also affected were the Daughters of Charity and a former children's home in Upper Swabia, the Marist board school in Mindelheim, Bavaria, and the former Franciscan boarding school in Grosskrotzenburg, Hanau. A large number of abuse allegations were made against former employees of the Franz-Sales House in Essen, a well-known facility for disabled people. An allegation was also made at St. Louis College. The federal justice minister urged the bishops to take action.Feb. 22: Archbishop Robert Zollitsch, who heads the bishops' conference, is expected to make his first statement on the scandal at the bishops spring meeting.
ORIGINALLY POSTED by Kathy Shaw at Abuse Tracker
FROM:
Immer neue Missbrauchsfälle: Eine Chronologie
GERMANYZDF heute
Bischofskonferenz will erstmals Stellung nehmen
Mitte Januar wurden Missbrauchsfälle an einer Berliner Jesuitenschule publik - und seitdem gibt es ständig neue Vorwürfe. Die lange Liste der Missbrauchsfälle und das Schweigen der Kirche: ein Überblick.
Saturday, February 20, 2010
Kay Ebeling is Alive and Well and Still Publishing at AlterNet..... sort of
.
We are continuing to post new stories on various topics at Alternet and posting those same stories at City of Angels 2
Today go to AlterNet SoapBox to read:
I Said, It should be illegal to send our jobs overseas. A week later I was fired. So I understand why Joe Stack flew a plane into an IRS building
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The City of Angels is Still Everywhere...
.
We are continuing to post new stories on various topics at Alternet and posting those same stories at City of Angels 2
Today go to AlterNet SoapBox to read:
I Said, It should be illegal to send our jobs overseas. A week later I was fired. So I understand why Joe Stack flew a plane into an IRS building
.
The City of Angels is Still Everywhere...
.
Tuesday, February 16, 2010
Why Are Convicted Pedophiles Who Were Catholic Priests and Served Time Not Listed on Sex Offender Lists? CA Perp Names Listed Here
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How do they avoid monitoring? Seven in LA, three in the SF Bay Area, the list is too long. Convicted pedophile priests who served time today somehow escape legal mandates to register as sex offenders in California, according to research done by a Southern California activist, Debby Bodkin (the ex-priests names are listed below).
“After reviewing a public database maintained by bishop-accountability.org and public court records," Bodkin writes she's found, “The Los Angeles Catholic Archdiocese, has an at least 7 convicted former priests that have somehow escaped mandatory sex offender registration." I called Debby and asked her why their names aren't on the Megan's Law website and she answered, "That's what I'd like to know."
These are pedophiles who were Catholic priests and served time for their crimes, yet somehow they are not on the Megan's Law website.
Note: Los Angeles has been without a U.S. attorney since Thomas O'Brien retired in Spring of 2009. Amid rumors that a federal Grand Jury is investigating Cardinal Roger Mahony right now, the DOJ Los Angeles website reports: "The USAO is headed by Acting United States Attorney George S. Cardona."
From Bodkin's report on convicted pedophiles not registered:
"The Diocese of Oakland has 1, the Diocese of San Bernardino has 2, the Archdiocese of San Francisco has 1, the Diocese of San Jose has 2, and the Diocese of Orange has 3, priest Gerardo J. Tanilong who has been in violation since 10/5/09, and Albert Schildknecht and priest Luis Eduardo Ramirez, are not registered as all."
Bodkin found these former priest perpetrators from California parishes who are now out there somewhere with no monitoring:
LOS ANGELES
1. Ahumada, Arturo, Convicted, Diocesan, Deacon, (NOT REGISTERED).
Pleaded no contest in 3/02 of providing pornographic material to 2 boys and misdemeanor sexual battery on one of them between 1999-2000 at Epiphany Church in South El Monte . Taken into custody 5/02 pending sentencing Sentenced 6/02 to 1 ys in county jail, a 44-month suspended state prison term, 5 yrs felony probation, and required to register as sex offender.
Source: LA Times 4.16.02; City News Services 5.24.02; LA Times 6.28.02; LA Times 8.18.02; LA Archdiocesan Report 2.17.04 page 6; Religion News Service 7.18.07
2. Bismonte, Honesto Bayranta, 1954, Convicted, Diocesan, (NOT REGISTERED)
Accused of abuse between 1997-2001 while at St. Joseph Church in Pomona . Convicted 2003. Battery (misdemeanor) of two girls, age 12 & 8. Received 2 yrs probation.
Source: Press Enterprise 4.24.02; LA Times 4.24.02; LA Times 4.25.02; San Bernardino Sun 4.29.02; San Bernardino Sun 4.29.02; Press Enterprise 5.22,02; LA Times 8.18.02; LA Times 8.18.02; LA Archdiocese Report Errata Notice # 1; USA Today 11.11.02; Press Enterprise 9.6.03; Inland Valley Daily Bulletin 9.6.03
Assignments: LA Times Database 4.20.06
3. Fessard, Gerald B., 1972, Convicted, Diocesan, (NOT REGISTERED).
Convicted 1987 of battery on child. 3 years probation. Sued in 2003 re alleged abuse.
Source: National Catholic Reporter 8.30.02; LA Archdiocesan Report 2.17.04 page 1; LA Times 8.18.02; City of Angels 12.07.07, Assignments: LA Archdiocesan Report Addendum 11.15.05; LA Times Database 4.20.06
4. Henry, Richard Allen, 1972, Convicted, Diocesan, (NOT REGISTERED).
Placed on leave 1991 after conviction for abuse of 4 boys. Removed from active ministry 1993. Sentenced 1993 to 8-year prison sentence. New accusations in 2002. Civil suit 2003 by 3 plaintiffs. A total of 13 accusers per archdiocese list. Included in12/06 $60M settlement re 22 priests which covers all of the cases involving molestations that occurred since Mahony was named head of the diocese in 1985.
Source: LA Times 6.25.92; LA Times 4.29.93; LA Times 6.17.02; LA Times 8.18.02; USA Today 11.11.02; Pasadena Star News 11.24.03; LA Archdiocesan Report 2.17.04 page 2; LA Times 2.18.04; LA Times 4.20.06; LA Times 12.2.06
Assignments: LA Archdiocesan Report Addendum 11.15.05; LA Times Database 4.20.06
5. Kelly, Patrick M., 1950, Convicted, (NOT REGISTERED).
Jesuit - Irish Province Visiting Priest from Ireland . In 1991 returned to Ireland after allegation he abused a girl. Promised to return to face charges but did not. Pleaded no contest in 1992 to charges and received 3 yr Probation without returning to US. Civil suit filed 1992. Archdiocese report says 4 accusers from 1991.
Source: LA Times 8.18.02; National Catholic Reporter 8.30.02; LA Archdiocese Report 2.17.04 page 5, Assignments: LA Times Database 4.20.06
6. Lawrence, Joseph (LJ), 1951, Convicted, Claretians, (NOT REGISTERED)
Convicted in 1986 ( Los Angeles --3 mo. probation) for abuse of 14 yr old boy and in 2004 for abuse of several boys in 1970s-1980s ( Phoenix --14 yrs prison). Placed on leave 1985 and laicized 1992. Married woman with 3 boys in 1995. She knew he had been a priest but never knew of past allegations until his arrest in 2003. He was a counselor and worked for U of NM health center. Civil suits filed 1996 and 12/03.
Source: Associated Press 3.26.03; LA Times 3.26.03; Pasadena Star-News 11.24.03; LA Archdiocesan Report 2.17.04 page 5; Associated Press 8.31.04; Albuquerque Tribune 12.29.06, Assignments: LA Archdiocesan Report Addendum 11.15.05; LA Times Database 4.20.06
(NOTE: This priest does not appear to be on bishop accountability but is in Bodkin's research. Also, below, Bodkin lists Michael Baker, although as far as we know, he is still in prison.)
7. Baker, Michael Stephen, 1974, Settled Diocesan Accused of abuse, (NOT REGISTERED).
Two brothers settled in 2000 for $1.3M. Criminal charges dropped due to Supreme Court ruling. LA archdiocese counts 23 accusers. Arrested again 1/06. Laicized 12/00 per LA Times Database. Included in 12/06 $60M settlement re 22 priests. Also included in 7/07 massive $660M settlement of LA Arch cases. Pleaded guity 12/07 to abuse of 2 boys. Sentenced to 10 yrs 4 mo in prison. Protected by ArBp Maloney. Los Angeles , CA Source:
LA Times 5.16.02; LA Times 08.18.02; LA Archdiocesan Report 2.17.04 page 1; KTLA 1.20.06; LA Times 12.2.06; LA Times 12.12.06; KNX 12.12.06; LA Times 12.13.06; Contra Costa Times 1.4.07; LA Times 1.4.07; Lompoc Record 1.5.07; LA Times 3.7.07; California Catholic Daily 3.9.07; Monterey Herald 3.16.07; LA Times 7.15.07
Assignments: Union Tribune 7.30.07 (add'l article); San Gabriel Valley Tribune 11.17.07 (add'l article); LA Times 12.4.07 (add'l article); LA Times 8.14.09 (add'l article); LA Archdiocesan Report Addendum 11.15.05; LA Times Database 4.20.06
OAKLAND
1. Green, William S., Convicted, Redemptorist, (NOT REGISTERED)
Arrested 4/99 along with 5 other individuals for sending sexually explicit messages and pornography to a 14 yr old boy in chatroom on the Internet. Pleaded guilty 7/99 to two counts of oral copulation and one charge of attempting to send harmful material to a minor and was sentenced to two years in prison.
Source: San Fransicso Chronicle 4.14.99; San Francisco Chronicle 7.24.99
SAN BERNARDINO
1. Benson, Gustavo, 1972, Convicted, Diocesan, (NOT REGISTERED)
Arrested in San Bernardino for abuse of 2 boys. Pleaded no contest 1/87 re 1 and given 3 yrs probation and treatment in New Mexico . 6/02 article says he moved to Mexico and was assigned to a diocese there. Calif. Bishop told Tijuana Bishop of Benson's history and that he should never have access to adolescents. Benson does have access to children in current position. Two filed civil suit 12/03. Listed on 3/07 list released by San Diego Diocese.
Source: LA Times 5.6.87; San Bernardino Sun 4.29.02; San Bernardino Sun 5.8.02; Press Enterprise 5.10.02; Dallas Morning News 6.12.02; Press Enterprise 1.1.04; Press Enterprise 1.14.04; Press Enterprise 11.10.05; Lompoc Record 3.30.07; Union Tribune 3.31.07
Assignments: Diocese of San Diego List 3.30.07
2. Dominguez, Jesus "Jesse"Armando, 1983, Convicted, Diocesan, (NOT REGISTERED)
Name appears on list of accused priests and religious released by the Los Angeles Archdiocese on February 17, 2004. List reflects 6 accusers and 1973-1988 as time of incidents. Worked in San Bernardino diocese from 1978-1993. Placed on leave. Pleaded no contest in 2001 to misdemeanor child molestation. Laicized in 2000. Charged in 2005 with abusing 2 boys in 1988-1989. Fled to Mexico before he could be arrested. Six men filed civil suits.
Source: LA Archdiocesan Report 2.17.04 page 4; LA Archdiocesan Report Errata Notice # 1; Press-Enterprise 12.14.04; Press-Enterprise 12.18.04; Press-Enterprise (CA) 2.02.05; Press-Enterprise 3.08.05; Reno Gazette Journal 7.30.05; Press-Enterpriest 8.02.05; Press-Enterprise 2.08.06; OBS 2 10.02.07; InjuryBoard.com 1.28.08; City of Angels 3.19.08
SAN FRANCISCO
1. Schipper, Carl Anthony, 1968, Convicted, Diocesan, NOT REGISTERED.
Arrested 3/04 after he held a series of explicit sexual conversations with what he thought was a 13 yr old boy in an Internet Chat Room. He was immediately placed on leave from position as academic dean at Menlo Park 's St. Patrick's Seminary. Pled guilty 8/00. Sentenced to 6 mo. jail and 3 yrs probation and to register as sex offender.
Source: San Jose Mercury News 3.4.00; SF Chronicle 3.4.00; SF Chronicle 8.23.00; San Jose Mercury News 11.22,00; Guardian 5.8.02
SAN JOSE
1. Burke, Edward Thomas, 1956, Convicted, Jesuit, (NOT REGISTERED)
Admitted to Jesuit superior in 2000 that he abused dependent adult man living/working at Jesuit center. Jesuits moved Burke but did not report accusation to police. Charged 5/9/02, pled guilty, and was sentenced 6/28/02 to 2 years in prison. Claims against Burke and Br. Charles Leonard Connor SJ settled 6/4/02 by Jesuits for $7.5M.
Source: LA Times 3.24.02; San Jose Mercury News 3.30.02; San Jose Mercury 4.1.02; LA Times 4.3.02; LA Times 5.10.02; LA Times 5.24.02; San Jose Mercury News 5.24.02; LA Times 6.29.02; LA Times 9.5.02
2. Gray, Robert A., 1988, Convicted, Diocesan, (NOT REGISTERED)
Convicted of sexually abusing a teenage boy while teaching him karate in 1993. Charges re two other boys were dismissed. Sent to jail for 160 days and 5 years probation. Received psychiatric treatment before being returned to job in the Diocese in 1995.Removed from his job as head of cemeteries department and placed on permanent leave in June 2002.
Source: San Jose Mercury News 5.26.02; San Jose Mercury News 6.1.02; Dallas Morning News 6.12.02; San Jose Mercury News 6.22.02; SF Chronicle 6.23.02; San Jose Mercury News 11.12.02
************
How do they avoid monitoring? Seven in LA, three in the SF Bay Area, the list is too long. Convicted pedophile priests who served time today somehow escape legal mandates to register as sex offenders in California, according to research done by a Southern California activist, Debby Bodkin (the ex-priests names are listed below).
“After reviewing a public database maintained by bishop-accountability.org and public court records," Bodkin writes she's found, “The Los Angeles Catholic Archdiocese, has an at least 7 convicted former priests that have somehow escaped mandatory sex offender registration." I called Debby and asked her why their names aren't on the Megan's Law website and she answered, "That's what I'd like to know."
These are pedophiles who were Catholic priests and served time for their crimes, yet somehow they are not on the Megan's Law website.
Note: Los Angeles has been without a U.S. attorney since Thomas O'Brien retired in Spring of 2009. Amid rumors that a federal Grand Jury is investigating Cardinal Roger Mahony right now, the DOJ Los Angeles website reports: "The USAO is headed by Acting United States Attorney George S. Cardona."
From Bodkin's report on convicted pedophiles not registered:
"The Diocese of Oakland has 1, the Diocese of San Bernardino has 2, the Archdiocese of San Francisco has 1, the Diocese of San Jose has 2, and the Diocese of Orange has 3, priest Gerardo J. Tanilong who has been in violation since 10/5/09, and Albert Schildknecht and priest Luis Eduardo Ramirez, are not registered as all."
Bodkin found these former priest perpetrators from California parishes who are now out there somewhere with no monitoring:
LOS ANGELES
1. Ahumada, Arturo, Convicted, Diocesan, Deacon, (NOT REGISTERED).
Pleaded no contest in 3/02 of providing pornographic material to 2 boys and misdemeanor sexual battery on one of them between 1999-2000 at Epiphany Church in South El Monte . Taken into custody 5/02 pending sentencing Sentenced 6/02 to 1 ys in county jail, a 44-month suspended state prison term, 5 yrs felony probation, and required to register as sex offender.Source: LA Times 4.16.02; City News Services 5.24.02; LA Times 6.28.02; LA Times 8.18.02; LA Archdiocesan Report 2.17.04 page 6; Religion News Service 7.18.07
2. Bismonte, Honesto Bayranta, 1954, Convicted, Diocesan, (NOT REGISTERED)
Accused of abuse between 1997-2001 while at St. Joseph Church in Pomona . Convicted 2003. Battery (misdemeanor) of two girls, age 12 & 8. Received 2 yrs probation.Source: Press Enterprise 4.24.02; LA Times 4.24.02; LA Times 4.25.02; San Bernardino Sun 4.29.02; San Bernardino Sun 4.29.02; Press Enterprise 5.22,02; LA Times 8.18.02; LA Times 8.18.02; LA Archdiocese Report Errata Notice # 1; USA Today 11.11.02; Press Enterprise 9.6.03; Inland Valley Daily Bulletin 9.6.03
Assignments: LA Times Database 4.20.06
3. Fessard, Gerald B., 1972, Convicted, Diocesan, (NOT REGISTERED).
Convicted 1987 of battery on child. 3 years probation. Sued in 2003 re alleged abuse.
Source: National Catholic Reporter 8.30.02; LA Archdiocesan Report 2.17.04 page 1; LA Times 8.18.02; City of Angels 12.07.07, Assignments: LA Archdiocesan Report Addendum 11.15.05; LA Times Database 4.20.06
4. Henry, Richard Allen, 1972, Convicted, Diocesan, (NOT REGISTERED).
Placed on leave 1991 after conviction for abuse of 4 boys. Removed from active ministry 1993. Sentenced 1993 to 8-year prison sentence. New accusations in 2002. Civil suit 2003 by 3 plaintiffs. A total of 13 accusers per archdiocese list. Included in12/06 $60M settlement re 22 priests which covers all of the cases involving molestations that occurred since Mahony was named head of the diocese in 1985.
Source: LA Times 6.25.92; LA Times 4.29.93; LA Times 6.17.02; LA Times 8.18.02; USA Today 11.11.02; Pasadena Star News 11.24.03; LA Archdiocesan Report 2.17.04 page 2; LA Times 2.18.04; LA Times 4.20.06; LA Times 12.2.06
Assignments: LA Archdiocesan Report Addendum 11.15.05; LA Times Database 4.20.06
5. Kelly, Patrick M., 1950, Convicted, (NOT REGISTERED).
Jesuit - Irish Province Visiting Priest from Ireland . In 1991 returned to Ireland after allegation he abused a girl. Promised to return to face charges but did not. Pleaded no contest in 1992 to charges and received 3 yr Probation without returning to US. Civil suit filed 1992. Archdiocese report says 4 accusers from 1991.
Source: LA Times 8.18.02; National Catholic Reporter 8.30.02; LA Archdiocese Report 2.17.04 page 5, Assignments: LA Times Database 4.20.06
6. Lawrence, Joseph (LJ), 1951, Convicted, Claretians, (NOT REGISTERED)
Convicted in 1986 ( Los Angeles --3 mo. probation) for abuse of 14 yr old boy and in 2004 for abuse of several boys in 1970s-1980s ( Phoenix --14 yrs prison). Placed on leave 1985 and laicized 1992. Married woman with 3 boys in 1995. She knew he had been a priest but never knew of past allegations until his arrest in 2003. He was a counselor and worked for U of NM health center. Civil suits filed 1996 and 12/03.
Source: Associated Press 3.26.03; LA Times 3.26.03; Pasadena Star-News 11.24.03; LA Archdiocesan Report 2.17.04 page 5; Associated Press 8.31.04; Albuquerque Tribune 12.29.06, Assignments: LA Archdiocesan Report Addendum 11.15.05; LA Times Database 4.20.06
(NOTE: This priest does not appear to be on bishop accountability but is in Bodkin's research. Also, below, Bodkin lists Michael Baker, although as far as we know, he is still in prison.)
7. Baker, Michael Stephen, 1974, Settled Diocesan Accused of abuse, (NOT REGISTERED).
Two brothers settled in 2000 for $1.3M. Criminal charges dropped due to Supreme Court ruling. LA archdiocese counts 23 accusers. Arrested again 1/06. Laicized 12/00 per LA Times Database. Included in 12/06 $60M settlement re 22 priests. Also included in 7/07 massive $660M settlement of LA Arch cases. Pleaded guity 12/07 to abuse of 2 boys. Sentenced to 10 yrs 4 mo in prison. Protected by ArBp Maloney. Los Angeles , CA Source:LA Times 5.16.02; LA Times 08.18.02; LA Archdiocesan Report 2.17.04 page 1; KTLA 1.20.06; LA Times 12.2.06; LA Times 12.12.06; KNX 12.12.06; LA Times 12.13.06; Contra Costa Times 1.4.07; LA Times 1.4.07; Lompoc Record 1.5.07; LA Times 3.7.07; California Catholic Daily 3.9.07; Monterey Herald 3.16.07; LA Times 7.15.07
Assignments: Union Tribune 7.30.07 (add'l article); San Gabriel Valley Tribune 11.17.07 (add'l article); LA Times 12.4.07 (add'l article); LA Times 8.14.09 (add'l article); LA Archdiocesan Report Addendum 11.15.05; LA Times Database 4.20.06
OAKLAND
1. Green, William S., Convicted, Redemptorist, (NOT REGISTERED)
Arrested 4/99 along with 5 other individuals for sending sexually explicit messages and pornography to a 14 yr old boy in chatroom on the Internet. Pleaded guilty 7/99 to two counts of oral copulation and one charge of attempting to send harmful material to a minor and was sentenced to two years in prison.
Source: San Fransicso Chronicle 4.14.99; San Francisco Chronicle 7.24.99
SAN BERNARDINO
1. Benson, Gustavo, 1972, Convicted, Diocesan, (NOT REGISTERED)
Arrested in San Bernardino for abuse of 2 boys. Pleaded no contest 1/87 re 1 and given 3 yrs probation and treatment in New Mexico . 6/02 article says he moved to Mexico and was assigned to a diocese there. Calif. Bishop told Tijuana Bishop of Benson's history and that he should never have access to adolescents. Benson does have access to children in current position. Two filed civil suit 12/03. Listed on 3/07 list released by San Diego Diocese.
Source: LA Times 5.6.87; San Bernardino Sun 4.29.02; San Bernardino Sun 5.8.02; Press Enterprise 5.10.02; Dallas Morning News 6.12.02; Press Enterprise 1.1.04; Press Enterprise 1.14.04; Press Enterprise 11.10.05; Lompoc Record 3.30.07; Union Tribune 3.31.07
Assignments: Diocese of San Diego List 3.30.07
2. Dominguez, Jesus "Jesse"Armando, 1983, Convicted, Diocesan, (NOT REGISTERED)
Name appears on list of accused priests and religious released by the Los Angeles Archdiocese on February 17, 2004. List reflects 6 accusers and 1973-1988 as time of incidents. Worked in San Bernardino diocese from 1978-1993. Placed on leave. Pleaded no contest in 2001 to misdemeanor child molestation. Laicized in 2000. Charged in 2005 with abusing 2 boys in 1988-1989. Fled to Mexico before he could be arrested. Six men filed civil suits.Source: LA Archdiocesan Report 2.17.04 page 4; LA Archdiocesan Report Errata Notice # 1; Press-Enterprise 12.14.04; Press-Enterprise 12.18.04; Press-Enterprise (CA) 2.02.05; Press-Enterprise 3.08.05; Reno Gazette Journal 7.30.05; Press-Enterpriest 8.02.05; Press-Enterprise 2.08.06; OBS 2 10.02.07; InjuryBoard.com 1.28.08; City of Angels 3.19.08
SAN FRANCISCO
1. Schipper, Carl Anthony, 1968, Convicted, Diocesan, NOT REGISTERED.
Arrested 3/04 after he held a series of explicit sexual conversations with what he thought was a 13 yr old boy in an Internet Chat Room. He was immediately placed on leave from position as academic dean at Menlo Park 's St. Patrick's Seminary. Pled guilty 8/00. Sentenced to 6 mo. jail and 3 yrs probation and to register as sex offender.
Source: San Jose Mercury News 3.4.00; SF Chronicle 3.4.00; SF Chronicle 8.23.00; San Jose Mercury News 11.22,00; Guardian 5.8.02
SAN JOSE
1. Burke, Edward Thomas, 1956, Convicted, Jesuit, (NOT REGISTERED)
Admitted to Jesuit superior in 2000 that he abused dependent adult man living/working at Jesuit center. Jesuits moved Burke but did not report accusation to police. Charged 5/9/02, pled guilty, and was sentenced 6/28/02 to 2 years in prison. Claims against Burke and Br. Charles Leonard Connor SJ settled 6/4/02 by Jesuits for $7.5M.
Source: LA Times 3.24.02; San Jose Mercury News 3.30.02; San Jose Mercury 4.1.02; LA Times 4.3.02; LA Times 5.10.02; LA Times 5.24.02; San Jose Mercury News 5.24.02; LA Times 6.29.02; LA Times 9.5.02
2. Gray, Robert A., 1988, Convicted, Diocesan, (NOT REGISTERED)
Convicted of sexually abusing a teenage boy while teaching him karate in 1993. Charges re two other boys were dismissed. Sent to jail for 160 days and 5 years probation. Received psychiatric treatment before being returned to job in the Diocese in 1995.Removed from his job as head of cemeteries department and placed on permanent leave in June 2002.
Source: San Jose Mercury News 5.26.02; San Jose Mercury News 6.1.02; Dallas Morning News 6.12.02; San Jose Mercury News 6.22.02; SF Chronicle 6.23.02; San Jose Mercury News 11.12.02
************
Debby Bodkin is not affiliated with any nonprofit or advocacy groupm, she did this research on her own. Bodkin wrote the Department of Justice Los Angeles this week to report these unlisted sex offenders and to say, if allowed to continue without law enforcement action:
“The civil right to be safe from sex crimes for unsuspecting children, adults, families and employees, is at serious risk.”
"
Bodkin added: “The Los Angeles Catholic Archdiocese, has approximately 7 convicted former employees that have somehow escaped mandatory sex offender registration,” Bodkin writes. The Diocese of Oakland has 1, the Diocese of San Bernardino has 2, the Archdiocese of San Francisco has 1, the Diocese of San Jose has 2, and the Diocese of Orange has 3, priest Gerardo J. Tanilong who has been in violation since 10/5/09.
"Albert Schildknecht and priest Luis Eduardo Ramirez, are not registered as all."
.
Posted by Kay Ebeling, Producer, City of Angels Blog
.
Monday, February 15, 2010
Story in construction for February 16, this is some of the research we are doing.
Sex offender law could go global with lawmaker's bill
Kansas City Star - Rob Hotakainen - 12 hours ago
The law, named after Megan Kanka, a 7-year-old New Jersey girl who was raped and killed by a neighbor in 1994, requires convicted sex ...
Bill seeks to extend reach of Megan's Law
UPI.com - 33 minutes ago
WASHINGON, DC, Feb. 15 (UPI) -- A member of California's congressional delegation says he wants Megan's Law, which identifies and tracks convicted sex ...
Low-Risk Sex Offender Harassed
WOWT - Justin Joseph - 21 hours ago
A man says his neighbors have turned on him after Nebraska's state law changed. The new law requires information about all sex offenders to be made public ...
Sex offender law could go global with lawmaker's bill
Kansas City Star - Rob Hotakainen - 12 hours ago
The law, named after Megan Kanka, a 7-year-old New Jersey girl who was raped and killed by a neighbor in 1994, requires convicted sex ...
Bill seeks to extend reach of Megan's Law
UPI.com - 33 minutes ago
WASHINGON, DC, Feb. 15 (UPI) -- A member of California's congressional delegation says he wants Megan's Law, which identifies and tracks convicted sex ...
Low-Risk Sex Offender Harassed
WOWT - Justin Joseph - 21 hours ago
A man says his neighbors have turned on him after Nebraska's state law changed. The new law requires information about all sex offenders to be made public ...
Why Catholic bishops like Roger Mahony of L.A. should be prosecuted, in one paragraph
.
"About a year later, Father Jerry was removed from our parish. Nobody told us why, although whispers began to spread that he had been touching the children of parishioners. At the time, I dismissed the rumors as unsubstantiated. After all, Father Jerry hadn’t gone to prison; he was simply transferred somewhere else. I could hardly believe that he would have been permitted to have a farewell address to my CCD class if he had been an accused child molester. I was, of course, wrong. We found out later on that Father Jerry had been facing numerous accusations for decades, dating back to the early 1970s." -From opinion piece at Heights of Boston today by Charlie Mangiardi. The Heights is the student newspaper at Boston College.
Because the same thing happened in nearly every parish in the United States, the bishops should be prosecuted on a national level. Same MO, same pattern of criminal behavior, almost like the bishops had a boss (pope) telling them to commit the crimes.
They did. The document that told bishops all over to world to keep pedophilia in the priesthood a secret is called Crimen Solicitationes dated 1962. (This CofA story also running in SoapBox at AlterNet )
Cardinal Roger Mahony of Los Angeles oversaw an archdiocese that produced 510 settled lawsuits in 2007 from a one-year window of opportunity that opened in 2003 to bypass statutes of limitations. Since December 31, 2003, when the SOL window closed at midnight, plaintiff attorneys report their phones have continued to ring. People did not hear about the window in time so now their cases cannot be litigated, AND by persons with New Allegations that fall within the statute of limitations.
Currently attorneys on both sides wait for a Supreme Court of the State of California decision on how to handle the new cases that have come forward since the 2003 window closed. The Court's decision could change the statute of limitations for child sex crimes in the state of California.
Plus Roger Mahony's career before becoming bishop of L.A. includes time as Bishop of Fresno, a diocese that produced dozens of pedophile priests and hundreds more victims.
Yet Roger Mahony still sits on a throne on an altar in front of thousands of misinformed people, every week.
Why haven't bishops all over the country who aided and betted the pedophile priest perpetrators been prosecuted yet?
******
By Kay Ebeling, Producer
City of Angels blog
*Pic of Mahony came from picaccess, washed in red.
Story also running in the SoapBox at AlterNet
"About a year later, Father Jerry was removed from our parish. Nobody told us why, although whispers began to spread that he had been touching the children of parishioners. At the time, I dismissed the rumors as unsubstantiated. After all, Father Jerry hadn’t gone to prison; he was simply transferred somewhere else. I could hardly believe that he would have been permitted to have a farewell address to my CCD class if he had been an accused child molester. I was, of course, wrong. We found out later on that Father Jerry had been facing numerous accusations for decades, dating back to the early 1970s." -From opinion piece at Heights of Boston today by Charlie Mangiardi. The Heights is the student newspaper at Boston College.
Because the same thing happened in nearly every parish in the United States, the bishops should be prosecuted on a national level. Same MO, same pattern of criminal behavior, almost like the bishops had a boss (pope) telling them to commit the crimes.
They did. The document that told bishops all over to world to keep pedophilia in the priesthood a secret is called Crimen Solicitationes dated 1962. (This CofA story also running in SoapBox at AlterNet )
Cardinal Roger Mahony of Los Angeles oversaw an archdiocese that produced 510 settled lawsuits in 2007 from a one-year window of opportunity that opened in 2003 to bypass statutes of limitations. Since December 31, 2003, when the SOL window closed at midnight, plaintiff attorneys report their phones have continued to ring. People did not hear about the window in time so now their cases cannot be litigated, AND by persons with New Allegations that fall within the statute of limitations.Currently attorneys on both sides wait for a Supreme Court of the State of California decision on how to handle the new cases that have come forward since the 2003 window closed. The Court's decision could change the statute of limitations for child sex crimes in the state of California.
Plus Roger Mahony's career before becoming bishop of L.A. includes time as Bishop of Fresno, a diocese that produced dozens of pedophile priests and hundreds more victims.
Yet Roger Mahony still sits on a throne on an altar in front of thousands of misinformed people, every week.
Why haven't bishops all over the country who aided and betted the pedophile priest perpetrators been prosecuted yet?
******
By Kay Ebeling, Producer
City of Angels blog
*Pic of Mahony came from picaccess, washed in red.
Story also running in the SoapBox at AlterNet
Sunday, February 14, 2010
Found working at car lot with Play Area for Kids, Pedophile Priest in $15 million payout by Church, w/Video
*
By Kay Ebeling
They were keeping it a secret. The employee who reported it got fired, and ex-priest Roland Lepire still sells used cars to families in small town Massachusetts. He’s admitted he molested at least five boys while a priest in Rhode Island, the Diocese of Providence paid out more than $15 million in settlements concerning Lepire.
His MO was wrestling, then groping, almost exactly like Robert Van Handel, whose crimes we are still documenting from Santa Barbara.
Both priests took the boys into rectories, and the groping always ended up in fondling of the boys’ genitals.
Lepire admits to touching four boys one time over a one-month period (sounds like words repeated in the Confessional, "I was a bad priest, one time") It's highly unlikely those are the only boys he molested, considering data on child molesters. They rarely stop at one or two, rarely act out their compulsions only once or twice.
The story is in this video from a Norwood, MA, news report.
On camera in video below, Lepire says about his crimes, “Everything is public,” so there’s no problem of his desk being near the car lot play area.
His boss fired the priest after this report and others came out, November 2009.
Pedophile priests are now all over the country, with no monitoring, turned loose by the Catholic Church whose spokespersons have said on numerous occasions: That priest is on Social Security now that we’ve defrocked him, he is no longer the Church’s responsibility.
There have been 6000 pedophile priests in the USA since 1950 and researchers say when all investigations are finished the number will be closer to ten thousand.
This is a nationwide problem. Pedophile priests get prosecuted in less than 1 percent of the cases, because of outdated Statutes of Limitations of Child Sex crimes. In most states, the child has to report within too few years from the crime.
Plus the Catholic Church almost always settles out of court and keeps identities of the pedophile priests secret.
So today there are likely hundreds of credibly accused defrocked priests living in communities around the country, without monitoring.
In the Lepire case above, just in time someone found him perched to approach more children. Lepire's office at the car dealership was right next to the play area for children.
Background on Roland Lepire:
$13.5M settlement ends abuse suits against diocese
Today meant a real lot.” White, in an interview, said he felt that filing a lawsuit was …Alfred P. Desrosiers, Roland M. Lepire, Michael V. LaMountain,
Providence diocese settles 4 cases alleging priest abuse – Projo 7 …
Taking the news pulse of Rhode Island and Southeastern Massachusetts, … by Father Roland Lepire at St. Matthew Parish in Central Falls in the early 1980s. …
Or look under L in the database at bishopaccountability.org
*******
Posted by Kay Ebeling
Producer, City of Angels Blog
.
This Cartoon is All Over the Internet, from Google Images:
.
By Kay Ebeling
They were keeping it a secret. The employee who reported it got fired, and ex-priest Roland Lepire still sells used cars to families in small town Massachusetts. He’s admitted he molested at least five boys while a priest in Rhode Island, the Diocese of Providence paid out more than $15 million in settlements concerning Lepire.
His MO was wrestling, then groping, almost exactly like Robert Van Handel, whose crimes we are still documenting from Santa Barbara.
Both priests took the boys into rectories, and the groping always ended up in fondling of the boys’ genitals.
Lepire admits to touching four boys one time over a one-month period (sounds like words repeated in the Confessional, "I was a bad priest, one time") It's highly unlikely those are the only boys he molested, considering data on child molesters. They rarely stop at one or two, rarely act out their compulsions only once or twice.
The story is in this video from a Norwood, MA, news report.
On camera in video below, Lepire says about his crimes, “Everything is public,” so there’s no problem of his desk being near the car lot play area.
His boss fired the priest after this report and others came out, November 2009.
Pedophile priests are now all over the country, with no monitoring, turned loose by the Catholic Church whose spokespersons have said on numerous occasions: That priest is on Social Security now that we’ve defrocked him, he is no longer the Church’s responsibility.
There have been 6000 pedophile priests in the USA since 1950 and researchers say when all investigations are finished the number will be closer to ten thousand.
This is a nationwide problem. Pedophile priests get prosecuted in less than 1 percent of the cases, because of outdated Statutes of Limitations of Child Sex crimes. In most states, the child has to report within too few years from the crime.
Plus the Catholic Church almost always settles out of court and keeps identities of the pedophile priests secret.
So today there are likely hundreds of credibly accused defrocked priests living in communities around the country, without monitoring.
In the Lepire case above, just in time someone found him perched to approach more children. Lepire's office at the car dealership was right next to the play area for children.
Background on Roland Lepire:
$13.5M settlement ends abuse suits against diocese
Today meant a real lot.” White, in an interview, said he felt that filing a lawsuit was …Alfred P. Desrosiers, Roland M. Lepire, Michael V. LaMountain,
Providence diocese settles 4 cases alleging priest abuse – Projo 7 …
Taking the news pulse of Rhode Island and Southeastern Massachusetts, … by Father Roland Lepire at St. Matthew Parish in Central Falls in the early 1980s. …
Or look under L in the database at bishopaccountability.org
*******
Posted by Kay Ebeling
Producer, City of Angels Blog
.
This Cartoon is All Over the Internet, from Google Images:
.
Google Alerts Favorites
*
***********
Godless Liberal Homo:
Clerical Child Molestation in Ratzi's Germany
By libhom
THE Catholic Church has become mired down in yet another child abuse scandal – this time in Pope Ratzinger's native Germany. The widening public scandal began last month with allegations that three priests at the elite Canisius Jesuit high school in Berlin had sexually abused students ...
For years, I've wondered why Roman Catholics don't demand that Ratzi resign as their pope. But, then again, I'm still trying to figure out why they don't go after the Cardinals and Archbishops who protect child raping priests too.From The Freethinker 2/12/03: THE Catholic Church has become mired down in yet another child abuse scandal – this time in Pope Ratzinger’s native Germany.
************
The Archdiocese of Chicago planning a new Catholic school in Chicago’s South Loop.
Posted by ChicagoismynewBlog! on February 14, 2010
(Crain’s) — The Archdiocese of Chicago plans to start work in June on a new school building on a South Loop site purchased from a venture including restaurateur Matthew O’Malley. The 33,000-square-foot elementary school building is to be completed in 2011 next to Old St. Mary’s, 1500 S. Michigan Ave., Chicago’s oldest parish that has seen its school’s enrollment grow amid the housing boom on the Near South Side. The school is currently located in a 12,000-square-foot former warehouse. The archdiocese bought property for the school in 2008 from a venture managed by Matthew O’Malley, whose Mainstay Hospitality LLC runs well-known Chicago Firehouse restaurant, Grace O’Malley’s Restaurant & Pub and Wabash Tap, all near the church, according to the Cook County Recorder. Mr. O’Malley’s venture sold for $2.4 million, after paying $1.35 million for it in 2005, property records.
***
And they tell us settlements made them broke...
***********
Godless Liberal Homo:
Clerical Child Molestation in Ratzi's Germany
By libhom
THE Catholic Church has become mired down in yet another child abuse scandal – this time in Pope Ratzinger's native Germany. The widening public scandal began last month with allegations that three priests at the elite Canisius Jesuit high school in Berlin had sexually abused students ...
For years, I've wondered why Roman Catholics don't demand that Ratzi resign as their pope. But, then again, I'm still trying to figure out why they don't go after the Cardinals and Archbishops who protect child raping priests too.From The Freethinker 2/12/03: THE Catholic Church has become mired down in yet another child abuse scandal – this time in Pope Ratzinger’s native Germany.
************
The Archdiocese of Chicago planning a new Catholic school in Chicago’s South Loop.
Posted by ChicagoismynewBlog! on February 14, 2010
(Crain’s) — The Archdiocese of Chicago plans to start work in June on a new school building on a South Loop site purchased from a venture including restaurateur Matthew O’Malley. The 33,000-square-foot elementary school building is to be completed in 2011 next to Old St. Mary’s, 1500 S. Michigan Ave., Chicago’s oldest parish that has seen its school’s enrollment grow amid the housing boom on the Near South Side. The school is currently located in a 12,000-square-foot former warehouse. The archdiocese bought property for the school in 2008 from a venture managed by Matthew O’Malley, whose Mainstay Hospitality LLC runs well-known Chicago Firehouse restaurant, Grace O’Malley’s Restaurant & Pub and Wabash Tap, all near the church, according to the Cook County Recorder. Mr. O’Malley’s venture sold for $2.4 million, after paying $1.35 million for it in 2005, property records.
***
And they tell us settlements made them broke...
Saturday, February 13, 2010
Docs in SNAP Group Leaders Packet 1997 scanned here
.
UPDATE: The group I ran in SF was 1997. Here are some docs that were in files I have from that period. This one is most interesting, the papers that gave SNAP its IRS nonprofit status were filed through a Catholic institution.
I didn't just run a weekday group, they let me use the title Director of Communications for SF SNAP back then:
Not Sure Why This One is in there
Doesn't the above Doc show there was a SNAP connection all the way back to 1991 with the Dominicans, the Dominicans in Wisconsin? Then This Little Sucker keeps popping up, here is another copy of it, from my files.
WOW It says right here, I am announcing the Thursday noon meeting in this press release, the meeting that I ran at the SF Public Library, I found in a file from that period.
Funny thing is, because I have bad eyesight, I did not even know what these docs said until I scanned them. I read a few and posted them then did not get around to reading the rest and moving them here until a few days later
Then when I could click them to enlarge, I finally saw what they said. Almost alll of them. I did not even know what was in this file that I've scanned in here.
MORE: I was trying to get info to reporters about Servants of the Paracletes back in 1997, as a volunteer with SNAP as the below doc demonstrates:
This is just anonymous stuff sent back then, I also have a bibliogaphy that is several pages long that I am not going to scan up as I'm done.
People can read this and figure it out for themselves.
Here is yet another one of these from the Dominican Sisters. Note this was says Okay for SNAP Leaders to Duplicate.
Meanwhile, City of Angels is down for a while. Not for good just for a while. There's plenty of stuff here, click around and find stuff you haven't read yet. We'll be back, regrouped.
Funny enough, it is not the Church that has been beating City of Angels down, it has been SNAP, our "survivors network" of mysterious and numerous tales of origin.
Of course, the beat-down is not done in a blatant way, not in a way that anyone else can see, it's always behind the scenes, they are not that stupid to let advocates and other activist survivors see what they actually do to some of us.
They also do it in a way that if you try to report it or write about it or tell anyone what is happening to you, you sound insane....
I'm not that insane.
So, next time you wonder, why didn't SNAP follow up on that lead, why didn't that project ever come to fruition, what happened to that survivor who was so active and verbal and then just got discouraged and quit- next time that happens, the next time they stand up and make a press statement that doesn't say anything more than what's been said already in the news, why are they holding a press conference here when the real news is breaking over there, the next time you are wondering why Catholics don't get it and why the mainstream doesn't seem to know the story of what really happened, come back and read about what SNAP did to me, at City of Angels 2, and see if it starts making more sense.
Meanwhile I can't do City of Angels in a vacuum and that's how they've arranged it.
It wasn't just one incident, what you read here and at City of Angels 2 last week, it was a three-year long effort.
SNAP did not want City of Angels to happen. Because they didn't want me to see exactly what I saw.
I'll just have to wait and hope more people figure it out and more people are willing to go public with how they feel. It's amazing the stranglehold of fear this group has on the crime victims, they will tell me what they think but they won't put it on a comment with their names.
So, for me, it's been a lesson in just how devious and sinister and evil the Catholic Church can be, and I've learned, don't trust anybody.
.
UPDATE: February 2010 while City of Angels is down I can't help but have to point this out.
I did not even remember last week that I did press work for SNAP in 1997, until I saw these things I scanned in. My PTSD works that way, I am always going forward and quickly forget what I left behind me.
***********
This is the last line referred to in the comment below, I'm not writing anything new, just copy and pasting things around differently.
"So, for me, it's been a lesson in just how devious and sinister and evil the Catholic Church can be, and I've learned, don't trust anybody."
.
UPDATE: The group I ran in SF was 1997. Here are some docs that were in files I have from that period. This one is most interesting, the papers that gave SNAP its IRS nonprofit status were filed through a Catholic institution.
I didn't just run a weekday group, they let me use the title Director of Communications for SF SNAP back then:
Not Sure Why This One is in there
Doesn't the above Doc show there was a SNAP connection all the way back to 1991 with the Dominicans, the Dominicans in Wisconsin? Then This Little Sucker keeps popping up, here is another copy of it, from my files.
WOW It says right here, I am announcing the Thursday noon meeting in this press release, the meeting that I ran at the SF Public Library, I found in a file from that period.
Funny thing is, because I have bad eyesight, I did not even know what these docs said until I scanned them. I read a few and posted them then did not get around to reading the rest and moving them here until a few days later
Then when I could click them to enlarge, I finally saw what they said. Almost alll of them. I did not even know what was in this file that I've scanned in here.
MORE: I was trying to get info to reporters about Servants of the Paracletes back in 1997, as a volunteer with SNAP as the below doc demonstrates:
This is just anonymous stuff sent back then, I also have a bibliogaphy that is several pages long that I am not going to scan up as I'm done.
People can read this and figure it out for themselves.
Here is yet another one of these from the Dominican Sisters. Note this was says Okay for SNAP Leaders to Duplicate.
Meanwhile, City of Angels is down for a while. Not for good just for a while. There's plenty of stuff here, click around and find stuff you haven't read yet. We'll be back, regrouped.
Funny enough, it is not the Church that has been beating City of Angels down, it has been SNAP, our "survivors network" of mysterious and numerous tales of origin.
Of course, the beat-down is not done in a blatant way, not in a way that anyone else can see, it's always behind the scenes, they are not that stupid to let advocates and other activist survivors see what they actually do to some of us.
They also do it in a way that if you try to report it or write about it or tell anyone what is happening to you, you sound insane....
I'm not that insane.
So, next time you wonder, why didn't SNAP follow up on that lead, why didn't that project ever come to fruition, what happened to that survivor who was so active and verbal and then just got discouraged and quit- next time that happens, the next time they stand up and make a press statement that doesn't say anything more than what's been said already in the news, why are they holding a press conference here when the real news is breaking over there, the next time you are wondering why Catholics don't get it and why the mainstream doesn't seem to know the story of what really happened, come back and read about what SNAP did to me, at City of Angels 2, and see if it starts making more sense.
Meanwhile I can't do City of Angels in a vacuum and that's how they've arranged it.
It wasn't just one incident, what you read here and at City of Angels 2 last week, it was a three-year long effort.
SNAP did not want City of Angels to happen. Because they didn't want me to see exactly what I saw.
I'll just have to wait and hope more people figure it out and more people are willing to go public with how they feel. It's amazing the stranglehold of fear this group has on the crime victims, they will tell me what they think but they won't put it on a comment with their names.
So, for me, it's been a lesson in just how devious and sinister and evil the Catholic Church can be, and I've learned, don't trust anybody.
.
UPDATE: February 2010 while City of Angels is down I can't help but have to point this out.
I did not even remember last week that I did press work for SNAP in 1997, until I saw these things I scanned in. My PTSD works that way, I am always going forward and quickly forget what I left behind me.
***********
This is the last line referred to in the comment below, I'm not writing anything new, just copy and pasting things around differently.
"So, for me, it's been a lesson in just how devious and sinister and evil the Catholic Church can be, and I've learned, don't trust anybody."
.
Friday, February 12, 2010
Priest w/several pedophile allegations found working as teen counselor in mental health clinic
.
By Kay Ebeling
Most priest/pedophiles are not on sex offender registries, even when their crimes resulted in million dollar lawsuits. They can leverage ex-priest on a resume into jobs and situations where they live and work around children. Pedophile priests usually don't get arrested, let alone prosecuted and convicted of their crimes, because most statutes of limitations require child molestation to be reported in unrealistic periods of time. The details of crimes in civil settlements rarely make the news.
A lawsuit filed from New Mexico resulted in location of the defrocked priest / accused pedophile working as a teen alcohol and drug rehab counselor at a clinic in Indiana three years ago.
When the first lawsuit was filed, Charles "Chuck" Cichanowicz had leveraged his ex-priest status to a job at the Alpine Clinic in Lafayette, Indiana. The clinic website said, Cichanowicz "specializes in working with adolescents aged 16 and up and adults, focusing primarily on chemical dependency and addiction.”
By November 2009, “Chuck” was no longer listed on the clinic staff list, so apparently now his location is unknown.
Cichanowicz was laicized in 1994.
The website also used to say the ex-priest “specializes in working with clients in the criminal justice system. Other areas of interest include sexual orientation issues, mood disorders, sexual dependency issues, and behavioral problems. Christian counseling if requested.”
The first lawsuit claims the priest gave the Navajo teenager beer and whiskey in order to sexually abuse him, according to plaintiff attorney Pat Noaker in Minnesota, reported the Gallup Independent in November 2007.
From Navajo Times November 2007:
“A 37-year-old Navajo from Shiprock this week did something no other Navajo has ever done - take a Catholic priest to tribal court on allegations of sexual abuse.” Navajo Times November 2007.
Read about Cichanowicz in the database under C at Bishop Accountability Dot Org
.
(I started working on this story in November with dreams of developing it into a full length feature story, but ... not this month.)
.
By Kay Ebeling
Most priest/pedophiles are not on sex offender registries, even when their crimes resulted in million dollar lawsuits. They can leverage ex-priest on a resume into jobs and situations where they live and work around children. Pedophile priests usually don't get arrested, let alone prosecuted and convicted of their crimes, because most statutes of limitations require child molestation to be reported in unrealistic periods of time. The details of crimes in civil settlements rarely make the news.
A lawsuit filed from New Mexico resulted in location of the defrocked priest / accused pedophile working as a teen alcohol and drug rehab counselor at a clinic in Indiana three years ago.
When the first lawsuit was filed, Charles "Chuck" Cichanowicz had leveraged his ex-priest status to a job at the Alpine Clinic in Lafayette, Indiana. The clinic website said, Cichanowicz "specializes in working with adolescents aged 16 and up and adults, focusing primarily on chemical dependency and addiction.”By November 2009, “Chuck” was no longer listed on the clinic staff list, so apparently now his location is unknown.
Cichanowicz was laicized in 1994.
The website also used to say the ex-priest “specializes in working with clients in the criminal justice system. Other areas of interest include sexual orientation issues, mood disorders, sexual dependency issues, and behavioral problems. Christian counseling if requested.”
The first lawsuit claims the priest gave the Navajo teenager beer and whiskey in order to sexually abuse him, according to plaintiff attorney Pat Noaker in Minnesota, reported the Gallup Independent in November 2007.
From Navajo Times November 2007:
“A 37-year-old Navajo from Shiprock this week did something no other Navajo has ever done - take a Catholic priest to tribal court on allegations of sexual abuse.” Navajo Times November 2007.
Read about Cichanowicz in the database under C at Bishop Accountability Dot Org
.
(I started working on this story in November with dreams of developing it into a full length feature story, but ... not this month.)
.
Wednesday, February 10, 2010
When child turns age of parent sex abuse, recovered memory often triggered. Oregon attorney Kelly Clark talks to City of Angels
*
"Watching his son at the age Steve was when he was abused, he realized how innocent he was, how naïve he was. How little the kid understood about sexuality at that age, what this priest did to me and the way he groomed me. He said, I just had no tools to deal with that at that age. And what it did was it removed the guilt. It wasn’t my fault, he thought, it removed the guilt."
(We move slowly. Last summer City of Angels interviewed Kelly Clark, Portland, Oregon, attorney who has handled clergy sex abuse cases for more than a decade. I asked him about the phenomenon, of recovering memory when your own child reaches the age of the suppressed trauma. Here is the transcript and video, it took me this long to get it cleaned up for post...)
Q ; Thanks for talking to me today. In a lot of clergy sex abuse cases recovered memory happens when a victim’s child turns the age the victim was when they were molested. They suddenly remember. you've had a couple of cases where that's been part of the story. Can you talk about that.
KELLY CLARK : Sure the first incident I handled. Steve testified that when he was about twelve or thirteen, which is the age he was when he began to be groomed and abused- when he saw his son turn that age, he started thinking realizing he had always blamed himself for the abuse. He thought, I should have said something, I should have stopped it, I should have resisted.
Steve said, when I started looking at my son who was that age I started thinking, he’s just a kid. He doesn't have responsibility. If somebody came on to him sexually, that's not his fault, it wouldn't be his fault. And, and he realized, maybe it wasn’t my fault. And that was when he began to, to think that I should do something about this.
Q ; It was when his child what, what age was when- what happened, his child turned 12 13 and what did he do?
(Here is video, transcript continues below)
.
KC : He said he was just looking at him one day thinking about how innocent his kid was and, uh, and naïve in some ways. And then he started thinking, well wait a minute that's the age I was when I was abused. And the kid wasn’t at fault.
Q ; Mm-hmm and he came to you?
KC : It was one of the things that led him to me eventually. That, also a, a meditation group at his local church where he finally for the first time ever talked to people who had been. Anyway, he went to a, a counselor, he eventually went to the archdiocese, they agreed to pay for his counseling - then he- I have a case we're about to file [OVERLAPPING CONVERSATION] church with the same dynamic, where the gentleman is still in his early forties, I think, and he had a couple of sons and they are about the same age. They are about twelve - [TECHNICAL]
Q : We were talking about delayed discovery where the crime victim looks at their child and thinks, that child is the same age I was -
KELLY CLARK : The delayed discovery in the age of the child and all that.
Q : Because it’s something that happened in my case when my daughter turned five years old.
KC: There’s a whole contingency I think, Kay, between pure repressed memory, where a person has no memory whatsoever and something happens and all of a sudden they remember and what I call Suppressed memory, which is where the never forget what happened, but they don't think about it. They push it out of their mind, put it on the back shelf, and they're just never going to think about it.
There’s a whole continuum in between there. Some people remember that they were abused but they don't remember the details. Some remember portions of their abuse but not all of it. Some people remember it all but they never think about it. And some people don't remember any of it until something happens. I call, I call it all a trigger.
If, if you see your daughter at age five and begin to think about what happened to you and your memory starts to come back, if a person who has never forgotten their abuse all of a sudden drives by their old church by chance and they start to think about it, even though they've always remembered it, they begin to sort of process.
A classic situation is where a person is in, for example in marital counseling. Or drug and alcohol rehab. They're filling out the checklist and it says are you a child abuse victim, yes, and the counselor says tell me about this. And they start talking about it. And the counselor says, you've got to look at this, this is a big deal. And that's the point at which the person begins to process that happened to them.
***********
There are various places on that continuum of recovered memory
****************
KC: I had one client say he was a very successful young law enforcement officer, and he said how could it have damaged me. I’m successful, I'm a cop, I have a beautiful wife and four beautiful kids, I wasn’t damaged. And then I began, five years later I began to look at the fact that I really was damaged. But he was just kind of in denial. There’s all various places on that continuum on repressed, suppressed memory. Various things can trigger it, including, as I said with Steve, and the other gentleman that I'm representing now, watching their own children at the age at which they were abused.
Q ; That was very similar, the two clients have really similar stories? Can you tell what the story is in both cases.
KC : Well the first one was Steve who was abused by a Catholic priest named Mel Bucher, at St. Anthony’s Franciscan parish in Oregon. The second is a client in a case that we've not yet filed, so I don't want to name the church. It’s not the Catholic Church. It’s a different church, and he was one of three boys, three brothers that were all abused by the same perpetrator.
And he, his abuse started I think when he was twelve or thirteen. And one of his sons is now twelve or thirteen and that's what got what happened to him.
Q : What had happened when his son turned 12-13?
KC : You know, he just simply said, basically part of what brought him to call me was thinking more about his own abuse. And of watching his son who is now the age he was when he was abused. He didn't go into a lot of detail about what went on beyond that.
Q ; Seeing his son and thinking he was so innocent?
KC : Yeah, that was Steve’s story, just how innocent he was, how naïve he was. How little the kid understood about sexuality at that age, and then he speaks of, you know, what this priest did to me and the way he groomed me and all that and he said, I just had no tools to deal with that at that age. And what it did was it removed the guilt. [OVERLAPPING CONVERSATION] It wasn’t my fault.
******
It removed the guilt
*************
Q ; Up to that point he felt -
KC : It was my fault. I was a big kid, I was fourteen years old, I could have pushed him away, why didn't I do that. I must have liked it, it must be my fault. And he sees his own son and he goes, no, no-no-no. That's not what happens when you're thirteen or fourteen. So that was that story.
"Watching his son at the age Steve was when he was abused, he realized how innocent he was, how naïve he was. How little the kid understood about sexuality at that age, what this priest did to me and the way he groomed me. He said, I just had no tools to deal with that at that age. And what it did was it removed the guilt. It wasn’t my fault, he thought, it removed the guilt."(We move slowly. Last summer City of Angels interviewed Kelly Clark, Portland, Oregon, attorney who has handled clergy sex abuse cases for more than a decade. I asked him about the phenomenon, of recovering memory when your own child reaches the age of the suppressed trauma. Here is the transcript and video, it took me this long to get it cleaned up for post...)
Q ; Thanks for talking to me today. In a lot of clergy sex abuse cases recovered memory happens when a victim’s child turns the age the victim was when they were molested. They suddenly remember. you've had a couple of cases where that's been part of the story. Can you talk about that.
KELLY CLARK : Sure the first incident I handled. Steve testified that when he was about twelve or thirteen, which is the age he was when he began to be groomed and abused- when he saw his son turn that age, he started thinking realizing he had always blamed himself for the abuse. He thought, I should have said something, I should have stopped it, I should have resisted.
Steve said, when I started looking at my son who was that age I started thinking, he’s just a kid. He doesn't have responsibility. If somebody came on to him sexually, that's not his fault, it wouldn't be his fault. And, and he realized, maybe it wasn’t my fault. And that was when he began to, to think that I should do something about this.
Q ; It was when his child what, what age was when- what happened, his child turned 12 13 and what did he do?
(Here is video, transcript continues below)
.
KC : He said he was just looking at him one day thinking about how innocent his kid was and, uh, and naïve in some ways. And then he started thinking, well wait a minute that's the age I was when I was abused. And the kid wasn’t at fault.
Q ; Mm-hmm and he came to you?
KC : It was one of the things that led him to me eventually. That, also a, a meditation group at his local church where he finally for the first time ever talked to people who had been. Anyway, he went to a, a counselor, he eventually went to the archdiocese, they agreed to pay for his counseling - then he- I have a case we're about to file [OVERLAPPING CONVERSATION] church with the same dynamic, where the gentleman is still in his early forties, I think, and he had a couple of sons and they are about the same age. They are about twelve - [TECHNICAL]
Q : We were talking about delayed discovery where the crime victim looks at their child and thinks, that child is the same age I was -
KELLY CLARK : The delayed discovery in the age of the child and all that.
Q : Because it’s something that happened in my case when my daughter turned five years old.
KC: There’s a whole contingency I think, Kay, between pure repressed memory, where a person has no memory whatsoever and something happens and all of a sudden they remember and what I call Suppressed memory, which is where the never forget what happened, but they don't think about it. They push it out of their mind, put it on the back shelf, and they're just never going to think about it.
There’s a whole continuum in between there. Some people remember that they were abused but they don't remember the details. Some remember portions of their abuse but not all of it. Some people remember it all but they never think about it. And some people don't remember any of it until something happens. I call, I call it all a trigger.
If, if you see your daughter at age five and begin to think about what happened to you and your memory starts to come back, if a person who has never forgotten their abuse all of a sudden drives by their old church by chance and they start to think about it, even though they've always remembered it, they begin to sort of process.
A classic situation is where a person is in, for example in marital counseling. Or drug and alcohol rehab. They're filling out the checklist and it says are you a child abuse victim, yes, and the counselor says tell me about this. And they start talking about it. And the counselor says, you've got to look at this, this is a big deal. And that's the point at which the person begins to process that happened to them.
***********
There are various places on that continuum of recovered memory
****************
KC: I had one client say he was a very successful young law enforcement officer, and he said how could it have damaged me. I’m successful, I'm a cop, I have a beautiful wife and four beautiful kids, I wasn’t damaged. And then I began, five years later I began to look at the fact that I really was damaged. But he was just kind of in denial. There’s all various places on that continuum on repressed, suppressed memory. Various things can trigger it, including, as I said with Steve, and the other gentleman that I'm representing now, watching their own children at the age at which they were abused.
Q ; That was very similar, the two clients have really similar stories? Can you tell what the story is in both cases.
KC : Well the first one was Steve who was abused by a Catholic priest named Mel Bucher, at St. Anthony’s Franciscan parish in Oregon. The second is a client in a case that we've not yet filed, so I don't want to name the church. It’s not the Catholic Church. It’s a different church, and he was one of three boys, three brothers that were all abused by the same perpetrator.
And he, his abuse started I think when he was twelve or thirteen. And one of his sons is now twelve or thirteen and that's what got what happened to him.
Q : What had happened when his son turned 12-13?
KC : You know, he just simply said, basically part of what brought him to call me was thinking more about his own abuse. And of watching his son who is now the age he was when he was abused. He didn't go into a lot of detail about what went on beyond that.
Q ; Seeing his son and thinking he was so innocent?
KC : Yeah, that was Steve’s story, just how innocent he was, how naïve he was. How little the kid understood about sexuality at that age, and then he speaks of, you know, what this priest did to me and the way he groomed me and all that and he said, I just had no tools to deal with that at that age. And what it did was it removed the guilt. [OVERLAPPING CONVERSATION] It wasn’t my fault.
******
It removed the guilt
*************
Q ; Up to that point he felt -
KC : It was my fault. I was a big kid, I was fourteen years old, I could have pushed him away, why didn't I do that. I must have liked it, it must be my fault. And he sees his own son and he goes, no, no-no-no. That's not what happens when you're thirteen or fourteen. So that was that story.
Monday, February 8, 2010
*
Having the strangest experience.
It's over. I think...
I doubt I'll post another word at City of Angels.
I did what I came for. I identified the problem and wrote about it, reported it here yesterday.
Now if people prefer to believe what they are told instead of what they see, there's nothing more I can write on this topic.
I'm a chameleon, always have been, and it's real obvious, the way I feel, that another change is coming, and City of Angels is done.
I did what I came here for and until more people see and deal with the problem, I can't function in this "community."
City of Angels was run from the beginning on nudges. They're gone now. They left this morning.
There's nothing more to say. Until other people see what I see and say it out loud, there's nothing more I can say.
ke
UPDATE Tuesday 6:05 AM
I'll probly do a story now and then. I don't know... I'm at work now, and feel more like just writing at City of Angels 2 for a while. There's new stuff there.
Having the strangest experience.
It's over. I think...
I doubt I'll post another word at City of Angels.
I did what I came for. I identified the problem and wrote about it, reported it here yesterday.
Now if people prefer to believe what they are told instead of what they see, there's nothing more I can write on this topic.
I'm a chameleon, always have been, and it's real obvious, the way I feel, that another change is coming, and City of Angels is done.
I did what I came here for and until more people see and deal with the problem, I can't function in this "community."
City of Angels was run from the beginning on nudges. They're gone now. They left this morning.
There's nothing more to say. Until other people see what I see and say it out loud, there's nothing more I can say.
ke
UPDATE Tuesday 6:05 AM
I'll probly do a story now and then. I don't know... I'm at work now, and feel more like just writing at City of Angels 2 for a while. There's new stuff there.
Church objections to release of L.A. priest personnel files to be heard, one more time, in court Tues Feb 9, re Michael Baker
.
Even after the judge rules on his motions, Donald Steier, attorney for pedophile priests, manages to get more hearings on the calendar. Tomorrow's defense motion concerns a current lawsuit filed against the L.A. Archdiocese re Fr. Michael Baker, but the arguments reflect the battle plaintiffs face in release of any perpetrator priest files to the public.
Plaintiff has to prove a “compelling public need to invade these most sensitive papers belonging to Doe 3,” who is Fr. Michael Baker, reads the "Defendant Doe 3’s Generic Brief in Opposition to Plaintiff’s Motion to Compel Production of his Personnel Records," filed January 26, 2010 by Steier. The doc is copy and pasted below and will be subject of a hearing in L.A. Superior Court before Judge Emilie Elias, at 9:00 AM tomorrow. CofA will be there if possible.)
DEFENDANT DOE 3’S GENERIC BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF HIS PERSONNEL RECORDS
Hearing Date: February 9, 2010
Time: 9:00 a.m.
Location: DEPT 324
MEMORANDUM OF POINTS AND AUTHORITIES
I. STATEMENT OF THE CASE
AND OVERVIEW OF APPLICABLE LAW
Doe 3 is a former employee of the Roman Catholic Archbishop of Los Angeles and has been accused in this action of committing childhood sexual abuse and other torts by the Plaintiff. Plaintiff is seeking to compel production of the confidential records contained in Doe 3’s private personnel records, which are in the custody of his former employer. With this brief, he will set forth the basic law that prohibits disclosure of the contents of his private files in light of the insufficient showing of compelling need offered by Plaintiff.
In California, the right of privacy is enshrined as an “inalienable right” in the state Constitution. Covered by that Constitutional right are the contents of personnel files, and the holder of that Constitutional privilege is the employee. There is a mandatory process for determining an assertion of the Constitutional privacy privilege; it is set forth in detail below.
Order he previously filed in this matter. That Motion resulted in an order requiring the parties to follow the discovery protocol previously ordered in this Coordinated Proceeding, including an individual document in camera review and determination of claims of privilege regarding the contents of Doe 3’s private personnel records.
MEMORANDUM OF POINTS AND AUTHORITIES
I. STATEMENT OF THE CASE
AND OVERVIEW OF APPLICABLE LAW
Doe 3 is a former employee of the Roman Catholic Archbishop of Los Angeles and has been accused in this action of committing childhood sexual abuse and other torts by the Plaintiff. Plaintiff is seeking to compel production of the confidential records contained in Doe 3’s private personnel records, which are in the custody of his former employer. With this brief, he will set forth the basic law that prohibits disclosure of the contents of his private files in light of the insufficient showing of compelling need offered by Plaintiff.
In California, the right of privacy is enshrined as an “inalienable right” in the state Constitution. Covered by that Constitutional right are the contents of personnel files, and the holder of that Constitutional privilege is the employee. There is a mandatory process for determining an assertion of the Constitutional privacy privilege; it is set forth in detail below.
Of course, Doe 3 was a priest, and his personnel files also contain records that touch upon his association with the Roman Catholic Church and his practice of his faith, since they are inextricably intertwined with his service as a priest. The religious relationship between a Roman Catholic priest and his bishop is uniquely broad and deep as required by two millennia of Catholic dogma, and the pervasiveness of that dogma – essential to the practice of Roman Catholicism – is evident in these records.
In this case, Doe 3’s private employee records comprise a typical “confidential file” held by the Archbishop regarding current and former employees, contain documents and correspondence relating to complaints of all kinds against a priest, such as failing to say Mass as a parishioner would like, as well as personal health and financial documents, personal wills, insurance papers, and documents clearly protected from disclosure by statutory privileges, such as the therapist-patient privilege. Where complaints are lodged about an employee that might constitute criminal or tortuous conduct on his part, records relating to them are protected by the attorney-client privilege.
In other contexts Plaintiff has often contended that privileges have been lost by “waiver,” but that contention does not survive critical analysis. It is true that privileges can be waived, but only by the person who holds the privilege. As regards Doe 3’s private documents, only he is the holder of the privilege, and he has never waived any of them. If sometimes the custodian of his records has failed to protect the records sufficiently, that cannot constitute a waiver by Doe 3.
To the contrary, Doe 3 has diligently objected to every effort to invade his private world, in this and all other cases.
II. THE CONSTITUTIONAL RIGHT OF PRIVACY
PROTECTS THE RECORDS FROM PRODUCTION
California Constitution, Article I, Section 1:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
This Constitutional privilege is an inalienable right, and is stronger than the right of privacy found in the United States Constitution. American Academy of Pediatrics v. Lungren [1997] 16 Cal.4th 307; Vinson v. Superior Court [1987] 43 Cal.3rd 833; Pettus v. Cole [1996] 49 Cal. App.4th 402.
Impairment of an interest of Constitutional dimension, such as the right of privacy, passes Constitutional muster only if it is necessary to achieve a compelling state interest. That means that the conflict between the competing values must be unavoidable, and that it does not arise from the choice of means to achieve the compelling state interest. Wood v. Superior Court [1985] 166 Cal. App.3rd 1138.
The ordinary discovery standard, permitting discovery of inadmissible or irrelevant matter that might lead to discovery of other, relevant evidence, does not apply to justify discovery of private information protected by the Constitution. Board of Trustees of Stanford University v. Superior Court [1981] 119 Cal. App.3rd 516; Garstang v. Superior Court [[1995] 39 Cal. App.4th 526; Bearman v. Superior Court [2004] 117 Cal. App.4th 463; Planned Parenthood Golden Gate v. Superior Court [2000] 83 Cal. App.4th 347; John B. v. Superior Court [2006] 38 Cal.4th 1177.
The more sensitive the nature of personal information that is sought to be discovered and the greater the effect that disclosure will have on the persons whose privacy is at risk, the more substantial the need for discovery that will be required to be demonstrated before disclosure is allowed. The general public interest in ascertainment of truth in litigation is not sufficiently compelling in all cases involving sensitive information. Hooser v. Superior Court [2000] 84 Cal. App.4th 997; Tien v. Superior Court [2006] 139 Cal. App.4th 528.
The demonstrated compelling public need must outweigh the privacy interest not only in the abstract, but when weighed against the particular privacy interests at issue, before disclosure may be ordered. Reynaud v. Superior Court [1982] 138 Cal. App.3rd. 1.
Many specific privacy interests that are covered by the Constitutional right have been identified by courts, including:
Personal information. Political affiliations, sexual history, medical history, financial affairs, other confidential personal information. Pettus v. Cole [1996] 49 Cal. App.4th 402.
Personnel files. San Diego Trolley, Inc. v. Superior Court [2001] 87 Cal. App.4th 1083; El Dorado Savings & Loan Association v. Superior Court [1987] 190 Cal. App.3rd 342; Board of Trustees of Stanford University v. Superior Court [1981] 119 Cal. App.3rd 516. The Constitutional Right of Privacy thus protects each and every page within the subject personnel files from discovery, absent “direct relevance,” a showing of a compelling public need that outweighs the privacy interest of the particular document, and a showing that there is no “less intrusive means” to discover the information.
Medical and psychological information. In re Lifschutz [1970] 2 Cal.3rd 415 (fact of psychotherapy itself is privileged); Susan S. v. Israels [1997] 55 Cal. App.4th 1290; Pettus v. Cole [1996] 49 Cal. App.4th 402; People v. Martinez [2001] 88 Cal. App.4th 465; Bearman v. Superior Court [2004] 117 Cal. Ap..4th 463
Financial information. Carmel-by-the-Sea v. Young [1970] 2 Cal.3rd 259; Doyle v. State Bar [1982] 32 Cal.3rd 12; Gordon v. Superior Court [1997] 55 Cal. App.4th 1546.
Crime victims. Penal Code § 11167.5 (a); People v. Jackson [2003] 110 Cal. App.4th 280; Scull v. Superior Court [1988] 206 Cal. App.3rd 784.
Third party rights. Vinson v. Superior Court [1987] 43 Cal.3rd 833; Scull v. Superior Court [1988] 206 Cal. App.3rd 784; Tien v. Superior Court [2006] 139 Cal. App.4th 528.
Peer review. Pomona College v. Superior Court [Corin] [1996] 45 Cal. App.4th 1716.
Religious practices. Britt v. Superior Court [1978] 20 Cal.3rd 844 (right of privacy implicit in First Amendment creates private area into which government may not enter); Snyder v. Evangelical Orthodox Church [1989] 216 Cal. App.3rd 297 (if state action burdens the free exercise of religion, the state interest must strictly scrutinized in weighing against the Constitutionally protected right); Presbyterian Church (U.S.A.) v. United States [1990] 752 Fed. Supp. 1505 (legal police activity that chills exercise of religious freedom may be prohibited).
Sexual history and activities. Sexual relations and sexual history are protected by the California Constitutional Right of Privacy. Hooser v. Superior Court [2000] 84 Cal. App.4th 997, 101 Cal. Rptr.2nd 341; Planned Parenthood Golden Gate v. Superior Court [2000] 83 Cal. App.4th 347, 99 Cal. Rptr.2nd 627.
Convenience for a party does not justify permitting discovery of Constitutionally-protected private information. Wood v. Superior Court, supra; Planned Parenthood Golden Gate v. Superior Court, supra; Fults v. Superior Court [1979] 88 Cal.App.3d 899, 152 Cal.Rptr. 210; Central Valley Chapter, 7th Step Foundation v. Younger [1976] 95 Cal.App.3d 212, 157 Cal.Rptr. 117.
If, after going through the Constitutionally-mandated process, the court finds that discovery of private information is justified, then the least intrusive means of invading the private information must be used. San Diego Trolley, Inc. v. Superior Court [2001] 87 Cal. App.4th 1083; Wood v. Superior Court, supra; Planned Parenthood Golden Gate v. Superior Court, supra.
To this point, Plaintiff has not made any factual showing, under oath, of any compelling public need to invade these most sensitive papers belonging to Doe 3. Therefore, Doe 3’s assertion of his inalienable Constitutional right of privacy must be upheld, and the motion to compel must be denied.
III. CONFIDENTIAL RECORDS RELATED TO
PSYCHOTHERAPY ARE PRIVILEGED
Certain documents containing communications to or from psychotherapists, all reasonably necessary to carry out the purpose of consulting a therapist, may be contained in the private files. Such information is protected by the Therapist Patient Privilege. Evidence Code § 1030, et seq.
Evidence Code § 1014 provides that “the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist. ”Further, as to patients who have died, the privilege survives them, and may be claimed by the personal representative of the patient.” [Evidence Code § 1013.]
This privilege is nearly absolute, not only in civil cases, but also in criminal cases. A handful of narrow exceptions exist [“litigant waiver” and “dangerous patient” to name two] but no exceptions apply in this case. Doe 3 has never placed his mental state in issue. The burden is on the party seeking disclosure to prove the existence of an exception to the privilege.
“The relatively high importance of protecting psychotherapeutic confidentiality can be seen in the fact that, unlike the physician-patient privilege, the psychotherapist-patient privilege is not subject to a good cause exception in personal injury actions.” City of Alhambra v. Superior Court [1980] 110 Cal. App. 3rd 513, 168 Cal. Rptr. 49.
Indeed, unlike other professional privileges, the mere fact that a person consulted with a psychotherapist is protected by the privilege.
“When a patient seeks out the counsel of a psychotherapist, he wants privacy and sanctuary from the world and its pressures. The patient desires in this place of safety an opportunity to be as open and candid as possible to enable the psychotherapist the maximum opportunity to help him with his problems. The patient’s purpose would be inhibited and frustrated if his psychotherapist could be compelled to give up his identity without his consent. Public knowledge of treatment by a psychotherapist reveals the existence and, in a general sense, the nature of the malady.” Smith v. Superior Court [1981] 118 Cal. App.3rd 136, 173 Cal. Rptr. 145; Scull v. Superior Court [1988] 206 Cal. App.3rd 284; 254 Cal. Rptr. 24.
“The names of Northwestern’s claimants are not discoverable because the disclosure of the names would reveal not only the identity of the claimants but also the nature of their ailments (‘psychiatric disability’).” Pollock v. Superior Court [2001] 93 Cal. App.4th 817, 113 Cal. Rptr.2nd 453. See also, Rosso, Johnson, Rosso & Ebersold v. Superior Court [1987] 191 Cal. App.3rd 1514, 237 Cal. Rptr. 2242.
On November 15, 2006 Judge Fromholz ruled on objections to production of psychotherapy records similar to those at issue here from Fr. Caffoe’s C file. Judge Fromholz sustained the psychotherapy patient privilege for identical documents.
IV. THE “CONFIDENTIALITY OF MEDICAL INFORMATION ACT”
PROHIBITS DISCLOSURE OF DOE 3’s MEDICAL RECORDS
California law permits limited disclosure to an employer of medical and psychological information relating to an employee, under conditions of confidentiality. Civil Code § 56.20 et seq. These provisions are known as the “California Confidentiality of Medical Information Act.” It is a crime for an employer to further disclose such confidential information without a written authorization. Defendant has not executed an authorization to permit disclosure to anyone beyond his employer for any such disclosure of such records.
Medical and mental health records are protected by the California Constitutional Right of Privacy, even if statutory claims of privilege have been waived. Cutter v. Brownbridge [1986] 183 Cal. App.3rd 836, 228 Cal. Rptr. 545; Division of Medical Quality v. Gherardini [1979] 93 Cal. App.3rd 669, 56 Cal. Rptr. 55; Pettus v. Cole [1996] 49 Cal. App.4th 402, 37 Cal. Rptr. 46 [stating privacy of information relating to psychotherapy is a “core value” protected by California Constitution Article I, Section 1; San Diego Trolley Co. v. Superior Court [2001] 87 Cal. App.4th 1083, 105 Cal. Rptr.2nd 476.
V. FEDERAL STATUTE PROTECTS INFORMATION
ABOUT TREATMENT AT A SUBSTANCE ABUSE TREATMENT CENTER
Controlling federal statute provides that no information identifying a patient or his treatment at a federally funded treatment center may be disclosed until after a court has made a determination that “good cause” exists for such disclosure. Such a hearing places the burden of proof and going forward on the party seeking disclosure, and involves a balancing process similar to that independently required by the California Constitutional Right of Privacy. 42 USC 290 [dd] [2].
VI. THE ATTORNEY-CLIENT PRIVILEGE PROTECTS
INFORMATION RELATED TO EMPLOYEE TORTS FROM DISCLOSURE
Evidence Code § 950 et seq., defines the near-inviolate Attorney Client Privilege. That statute and related sections 950 through 962, inclusive, provide that communications with an attorney licensed by any state or any nation may not be disclosed, and that the client holds the privilege. An attorney must defend the communications against disclosure “at every peril to himself.” Business and Professions Code § 6068.
In the context of a master-servant relationship involving a corporation or other business entity, an employee whose conduct risks incurring liability for his employer shares the employer’s Attorney Client Privilege relating to investigations of the potential or actual legal ramifications of that conduct. D. I. Chadbourne v. Superior Court [1964] 60 Cal.2nd 723, 36 Cal. Rptr. 468. The common scenario is one involving an insurance company’s investigation of the facts relating to a potential claim; the work of adjusters, investigators, attorneys, and the rest of the internal team conducting the investigation, and the statements of employees whose work includes responsibility for such investigations, are protected by the Attorney Client Privilege.
In this case, where an investigation was made into claims of misconduct allegedly committed by defendant Doe 3 arising in connection to his service as a priest, under the doctrine of Chadbourne, Defendant Doe 3 is a co-holder of the Attorney-Client Privilege, which he can assert independently of the Diocese. He has never waived that privilege, and continues to assert it.
VII. THE PRIEST-PENITENT PRIVILEGE
PROHIBITS DISCLOSURE OF COMMUNICATIONS
WITH A CLERGYMAN
Evidence Code § 1030 et seq. establishes the “Penitent’s Privilege.” It provides that a person holds a privilege to prevent disclosure of a “communication made in confidence, in the presence of no third person so far as the penitent is aware, to a [1] member of the clergy who, in the course of the discipline or practice of [2] the clergy member’s church, denomination, or organization, is authorized or accustomed to hear [3] those communications and, under the discipline or tenets of his church, denomination, or organization, has a duty to keep [4] those communications secret.”
Some of the items within Defendant Doe 3’s personnel records include statements that are protected by this privilege, and Defendant therefore asserts it.
VIII. DISCLOSURE OF CONFIDENTIAL DOCUMENTS
WILL INFRINGE ON DOE 3’s CONSTITUTIONAL RIGHT
TO FREE EXERCISE OF RELIGION
Some documents in Doe 3’s confidential personnel records relate to his practice of his religious faith and are intertwined with Roman Catholic religious dogma. They involve the internal workings of the Roman Catholic Church when confronted with the possibility that an ordained priest has a sexual problem, which is forbidden by Church law. Those proceedings entail an intimate process by which the Church, through the bishop and his surrogates, attempt to save the soul and profession of a priest who has been ordained as a representative of God on Earth. Communications involved in that process are foundational to the practice of the Roman Catholic religion and its clergy, and are entitled to remain private. To disclose such communications to a civil litigant will severely erode the necessary relationship between a Cardinal and his priests and violate the Free Exercise Clause of the First Amendment to the United States Constitution. It will chill the relationship between priests and their bishops, because the priests will become reluctant to bear their souls to the bishops if courts can invade those core documents.
For the Roman Catholic Church to be free to continue its practices, which have done immeasurable good for billions of people around the world for two millennia, its internal communications to confront and reform wayward priests must remain free from civil process and public disclosure. If priests are aware that what they say in private to their superiors about their shortcomings will become disclosed upon the request of anyone wielding a subpoena, many of them will choose not to confide in their superiors. That result will break the essential relationship of the Roman Catholic Church, and by so doing, it will violate the rights of the Church itself and the priests to practice their religion freely.
Doe 3 does not contend that any church has a protected license to practice illegal sexual contact with children, but that the Church and Doe 3 are in a unique relationship essential to the Roman Catholic Religion, and that the communications within that relationship are sacrosanct from civil process. Any other rule will excessively chill the practice of the Roman Catholic religion by its priests, and destroy the foundational relationship between a bishop and the priests under his responsibility.
In Presbyterian Church [U.S.A.] v. United States [1990] 752 Fed. Supp.1505, a church which had declared itself a sanctuary for illegal immigrants won the right to sue the government to enjoin a legal law enforcement investigation by the Immigration and Naturalization Service because the church’s First Amendment rights could be chilled by that lawful investigation. That principle applies directly to this case, because it is patently obvious that priests will become reluctant to practice the open relationship with their bishop as demanded by Roman Catholic dogma if private documents concerning that relationship are compelled to be disclosed.
At a minimum, the threshold of “strict scrutiny” must be applied to any documents concerning the priest-bishop relationship. Snyder v. Evangelical Orthodox Church [1989] 216 Cal. App.3rd 297. Plaintiff has fallen far short of carrying the burden to overcome that high bar.
The California Supreme Court applied analogous principles in White v. Davis [1975] 13 Cal.3rd 757, when it enjoined the Los Angeles Police Department from having undercover officers present in public places on college campuses to surveil students for the purpose of trying to ferret out evidence of criminal conspiracies by student activists.
IX. COMPELLED STATEMENTS ARE INVOLUNTARY
AND PROTECTED FROM DISCLOSURE BY THE FIFTH AMENDMENT
Any incriminating statements made by an employee under threat of discipline are involuntary, and inadmissible in evidence. “The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. Slochower v. Board of Education [1956] 350 U.S. 561, at 557-558. “The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.” Slochower, supra, 350 U.S. 561, at 641.
X. CONCLUSION
All of the documents in Doe 3’s confidential file are protected from disclosure by the Constitutional right of privacy. Before disclosure can be compelled, the Plaintiff is required to make a factual showing of a compelling public need, which he has failed to do. Even were Plaintiff to meet that high bar, it would be only the first step in a careful process of document by document in camera review.
The normal rule of discovery, that the court may order disclosure of inadmissible or irrelevant information if it may lead to relevant evidence, does not apply to private papers. Disclosure of such papers cannot be compelled unless they are admissible in the action.
In addition to Plaintiff’s wholesale failure to overcome the privacy privilege, specific statutory privileges protect most of the documents from disclosure, as a individual document review will demonstrate.
Plaintiff’s motion to compel production, on this record, must be denied.
January 26, 2010 Respectfully Submitted,
8
Donald H. Steier, Esq.
9 Attorney for Defendant DOE 3
Donald H. Steier [SBN 58391]
GUZIN & STEIER
4525 Wilshire Boulevard
Suite 201
Los Angeles, CA 90010
[323] 932-1600 / Fax [323] 932-1873
Attorney for Defendant DOE 3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT
Coordinated Proceeding Special Title,
(Rule 1550(b))
THE CLERGY CASES I
___________________________________
LUIS C., an individual
Plaintiff,
v.
JOHN DOE 1, an individual; JOHN DOE 2, an individual; JOHN DOE 3, an individual; JOHN DOE 4, an entity form unknown; and DOES 5 THROUGH 1000, inclusive,
Defendants. Case No. JCCP 4286
[Honorable Emilie H. Elias, Coordination Trial Judge]
Case No. BC376766
********
A lot of people seem to think I was part of the L.A. settlement in July 2007. I live in L.A. but my crimes took place in 1951-1953 Illinois. That state does not look like it will ever have a window and the IL State Supreme Court ruled last September that people over 40 pretty much cannot file for damages at all in that state. So, no, I did not get a settlement and I was not part of the L.A. Cases.
I just live here.
-ke
Even after the judge rules on his motions, Donald Steier, attorney for pedophile priests, manages to get more hearings on the calendar. Tomorrow's defense motion concerns a current lawsuit filed against the L.A. Archdiocese re Fr. Michael Baker, but the arguments reflect the battle plaintiffs face in release of any perpetrator priest files to the public.
Plaintiff has to prove a “compelling public need to invade these most sensitive papers belonging to Doe 3,” who is Fr. Michael Baker, reads the "Defendant Doe 3’s Generic Brief in Opposition to Plaintiff’s Motion to Compel Production of his Personnel Records," filed January 26, 2010 by Steier. The doc is copy and pasted below and will be subject of a hearing in L.A. Superior Court before Judge Emilie Elias, at 9:00 AM tomorrow. CofA will be there if possible.)
DEFENDANT DOE 3’S GENERIC BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF HIS PERSONNEL RECORDS
Hearing Date: February 9, 2010
Time: 9:00 a.m.
Location: DEPT 324
MEMORANDUM OF POINTS AND AUTHORITIES
I. STATEMENT OF THE CASE
AND OVERVIEW OF APPLICABLE LAW
Doe 3 is a former employee of the Roman Catholic Archbishop of Los Angeles and has been accused in this action of committing childhood sexual abuse and other torts by the Plaintiff. Plaintiff is seeking to compel production of the confidential records contained in Doe 3’s private personnel records, which are in the custody of his former employer. With this brief, he will set forth the basic law that prohibits disclosure of the contents of his private files in light of the insufficient showing of compelling need offered by Plaintiff.
In California, the right of privacy is enshrined as an “inalienable right” in the state Constitution. Covered by that Constitutional right are the contents of personnel files, and the holder of that Constitutional privilege is the employee. There is a mandatory process for determining an assertion of the Constitutional privacy privilege; it is set forth in detail below.
Order he previously filed in this matter. That Motion resulted in an order requiring the parties to follow the discovery protocol previously ordered in this Coordinated Proceeding, including an individual document in camera review and determination of claims of privilege regarding the contents of Doe 3’s private personnel records.
MEMORANDUM OF POINTS AND AUTHORITIES
I. STATEMENT OF THE CASE
AND OVERVIEW OF APPLICABLE LAW
Doe 3 is a former employee of the Roman Catholic Archbishop of Los Angeles and has been accused in this action of committing childhood sexual abuse and other torts by the Plaintiff. Plaintiff is seeking to compel production of the confidential records contained in Doe 3’s private personnel records, which are in the custody of his former employer. With this brief, he will set forth the basic law that prohibits disclosure of the contents of his private files in light of the insufficient showing of compelling need offered by Plaintiff.
In California, the right of privacy is enshrined as an “inalienable right” in the state Constitution. Covered by that Constitutional right are the contents of personnel files, and the holder of that Constitutional privilege is the employee. There is a mandatory process for determining an assertion of the Constitutional privacy privilege; it is set forth in detail below.
Of course, Doe 3 was a priest, and his personnel files also contain records that touch upon his association with the Roman Catholic Church and his practice of his faith, since they are inextricably intertwined with his service as a priest. The religious relationship between a Roman Catholic priest and his bishop is uniquely broad and deep as required by two millennia of Catholic dogma, and the pervasiveness of that dogma – essential to the practice of Roman Catholicism – is evident in these records.
In this case, Doe 3’s private employee records comprise a typical “confidential file” held by the Archbishop regarding current and former employees, contain documents and correspondence relating to complaints of all kinds against a priest, such as failing to say Mass as a parishioner would like, as well as personal health and financial documents, personal wills, insurance papers, and documents clearly protected from disclosure by statutory privileges, such as the therapist-patient privilege. Where complaints are lodged about an employee that might constitute criminal or tortuous conduct on his part, records relating to them are protected by the attorney-client privilege.
In other contexts Plaintiff has often contended that privileges have been lost by “waiver,” but that contention does not survive critical analysis. It is true that privileges can be waived, but only by the person who holds the privilege. As regards Doe 3’s private documents, only he is the holder of the privilege, and he has never waived any of them. If sometimes the custodian of his records has failed to protect the records sufficiently, that cannot constitute a waiver by Doe 3.
To the contrary, Doe 3 has diligently objected to every effort to invade his private world, in this and all other cases.
II. THE CONSTITUTIONAL RIGHT OF PRIVACY
PROTECTS THE RECORDS FROM PRODUCTION
California Constitution, Article I, Section 1:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
This Constitutional privilege is an inalienable right, and is stronger than the right of privacy found in the United States Constitution. American Academy of Pediatrics v. Lungren [1997] 16 Cal.4th 307; Vinson v. Superior Court [1987] 43 Cal.3rd 833; Pettus v. Cole [1996] 49 Cal. App.4th 402.
Impairment of an interest of Constitutional dimension, such as the right of privacy, passes Constitutional muster only if it is necessary to achieve a compelling state interest. That means that the conflict between the competing values must be unavoidable, and that it does not arise from the choice of means to achieve the compelling state interest. Wood v. Superior Court [1985] 166 Cal. App.3rd 1138.
The ordinary discovery standard, permitting discovery of inadmissible or irrelevant matter that might lead to discovery of other, relevant evidence, does not apply to justify discovery of private information protected by the Constitution. Board of Trustees of Stanford University v. Superior Court [1981] 119 Cal. App.3rd 516; Garstang v. Superior Court [[1995] 39 Cal. App.4th 526; Bearman v. Superior Court [2004] 117 Cal. App.4th 463; Planned Parenthood Golden Gate v. Superior Court [2000] 83 Cal. App.4th 347; John B. v. Superior Court [2006] 38 Cal.4th 1177.
The more sensitive the nature of personal information that is sought to be discovered and the greater the effect that disclosure will have on the persons whose privacy is at risk, the more substantial the need for discovery that will be required to be demonstrated before disclosure is allowed. The general public interest in ascertainment of truth in litigation is not sufficiently compelling in all cases involving sensitive information. Hooser v. Superior Court [2000] 84 Cal. App.4th 997; Tien v. Superior Court [2006] 139 Cal. App.4th 528.
The demonstrated compelling public need must outweigh the privacy interest not only in the abstract, but when weighed against the particular privacy interests at issue, before disclosure may be ordered. Reynaud v. Superior Court [1982] 138 Cal. App.3rd. 1.
Many specific privacy interests that are covered by the Constitutional right have been identified by courts, including:
Personal information. Political affiliations, sexual history, medical history, financial affairs, other confidential personal information. Pettus v. Cole [1996] 49 Cal. App.4th 402.
Personnel files. San Diego Trolley, Inc. v. Superior Court [2001] 87 Cal. App.4th 1083; El Dorado Savings & Loan Association v. Superior Court [1987] 190 Cal. App.3rd 342; Board of Trustees of Stanford University v. Superior Court [1981] 119 Cal. App.3rd 516. The Constitutional Right of Privacy thus protects each and every page within the subject personnel files from discovery, absent “direct relevance,” a showing of a compelling public need that outweighs the privacy interest of the particular document, and a showing that there is no “less intrusive means” to discover the information.
Medical and psychological information. In re Lifschutz [1970] 2 Cal.3rd 415 (fact of psychotherapy itself is privileged); Susan S. v. Israels [1997] 55 Cal. App.4th 1290; Pettus v. Cole [1996] 49 Cal. App.4th 402; People v. Martinez [2001] 88 Cal. App.4th 465; Bearman v. Superior Court [2004] 117 Cal. Ap..4th 463
Financial information. Carmel-by-the-Sea v. Young [1970] 2 Cal.3rd 259; Doyle v. State Bar [1982] 32 Cal.3rd 12; Gordon v. Superior Court [1997] 55 Cal. App.4th 1546.
Crime victims. Penal Code § 11167.5 (a); People v. Jackson [2003] 110 Cal. App.4th 280; Scull v. Superior Court [1988] 206 Cal. App.3rd 784.
Third party rights. Vinson v. Superior Court [1987] 43 Cal.3rd 833; Scull v. Superior Court [1988] 206 Cal. App.3rd 784; Tien v. Superior Court [2006] 139 Cal. App.4th 528.
Peer review. Pomona College v. Superior Court [Corin] [1996] 45 Cal. App.4th 1716.
Religious practices. Britt v. Superior Court [1978] 20 Cal.3rd 844 (right of privacy implicit in First Amendment creates private area into which government may not enter); Snyder v. Evangelical Orthodox Church [1989] 216 Cal. App.3rd 297 (if state action burdens the free exercise of religion, the state interest must strictly scrutinized in weighing against the Constitutionally protected right); Presbyterian Church (U.S.A.) v. United States [1990] 752 Fed. Supp. 1505 (legal police activity that chills exercise of religious freedom may be prohibited).
Sexual history and activities. Sexual relations and sexual history are protected by the California Constitutional Right of Privacy. Hooser v. Superior Court [2000] 84 Cal. App.4th 997, 101 Cal. Rptr.2nd 341; Planned Parenthood Golden Gate v. Superior Court [2000] 83 Cal. App.4th 347, 99 Cal. Rptr.2nd 627.
Convenience for a party does not justify permitting discovery of Constitutionally-protected private information. Wood v. Superior Court, supra; Planned Parenthood Golden Gate v. Superior Court, supra; Fults v. Superior Court [1979] 88 Cal.App.3d 899, 152 Cal.Rptr. 210; Central Valley Chapter, 7th Step Foundation v. Younger [1976] 95 Cal.App.3d 212, 157 Cal.Rptr. 117.
If, after going through the Constitutionally-mandated process, the court finds that discovery of private information is justified, then the least intrusive means of invading the private information must be used. San Diego Trolley, Inc. v. Superior Court [2001] 87 Cal. App.4th 1083; Wood v. Superior Court, supra; Planned Parenthood Golden Gate v. Superior Court, supra.
To this point, Plaintiff has not made any factual showing, under oath, of any compelling public need to invade these most sensitive papers belonging to Doe 3. Therefore, Doe 3’s assertion of his inalienable Constitutional right of privacy must be upheld, and the motion to compel must be denied.
III. CONFIDENTIAL RECORDS RELATED TO
PSYCHOTHERAPY ARE PRIVILEGED
Certain documents containing communications to or from psychotherapists, all reasonably necessary to carry out the purpose of consulting a therapist, may be contained in the private files. Such information is protected by the Therapist Patient Privilege. Evidence Code § 1030, et seq.
Evidence Code § 1014 provides that “the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist. ”Further, as to patients who have died, the privilege survives them, and may be claimed by the personal representative of the patient.” [Evidence Code § 1013.]
This privilege is nearly absolute, not only in civil cases, but also in criminal cases. A handful of narrow exceptions exist [“litigant waiver” and “dangerous patient” to name two] but no exceptions apply in this case. Doe 3 has never placed his mental state in issue. The burden is on the party seeking disclosure to prove the existence of an exception to the privilege.
“The relatively high importance of protecting psychotherapeutic confidentiality can be seen in the fact that, unlike the physician-patient privilege, the psychotherapist-patient privilege is not subject to a good cause exception in personal injury actions.” City of Alhambra v. Superior Court [1980] 110 Cal. App. 3rd 513, 168 Cal. Rptr. 49.
Indeed, unlike other professional privileges, the mere fact that a person consulted with a psychotherapist is protected by the privilege.
“When a patient seeks out the counsel of a psychotherapist, he wants privacy and sanctuary from the world and its pressures. The patient desires in this place of safety an opportunity to be as open and candid as possible to enable the psychotherapist the maximum opportunity to help him with his problems. The patient’s purpose would be inhibited and frustrated if his psychotherapist could be compelled to give up his identity without his consent. Public knowledge of treatment by a psychotherapist reveals the existence and, in a general sense, the nature of the malady.” Smith v. Superior Court [1981] 118 Cal. App.3rd 136, 173 Cal. Rptr. 145; Scull v. Superior Court [1988] 206 Cal. App.3rd 284; 254 Cal. Rptr. 24.
“The names of Northwestern’s claimants are not discoverable because the disclosure of the names would reveal not only the identity of the claimants but also the nature of their ailments (‘psychiatric disability’).” Pollock v. Superior Court [2001] 93 Cal. App.4th 817, 113 Cal. Rptr.2nd 453. See also, Rosso, Johnson, Rosso & Ebersold v. Superior Court [1987] 191 Cal. App.3rd 1514, 237 Cal. Rptr. 2242.
On November 15, 2006 Judge Fromholz ruled on objections to production of psychotherapy records similar to those at issue here from Fr. Caffoe’s C file. Judge Fromholz sustained the psychotherapy patient privilege for identical documents.
IV. THE “CONFIDENTIALITY OF MEDICAL INFORMATION ACT”
PROHIBITS DISCLOSURE OF DOE 3’s MEDICAL RECORDS
California law permits limited disclosure to an employer of medical and psychological information relating to an employee, under conditions of confidentiality. Civil Code § 56.20 et seq. These provisions are known as the “California Confidentiality of Medical Information Act.” It is a crime for an employer to further disclose such confidential information without a written authorization. Defendant has not executed an authorization to permit disclosure to anyone beyond his employer for any such disclosure of such records.
Medical and mental health records are protected by the California Constitutional Right of Privacy, even if statutory claims of privilege have been waived. Cutter v. Brownbridge [1986] 183 Cal. App.3rd 836, 228 Cal. Rptr. 545; Division of Medical Quality v. Gherardini [1979] 93 Cal. App.3rd 669, 56 Cal. Rptr. 55; Pettus v. Cole [1996] 49 Cal. App.4th 402, 37 Cal. Rptr. 46 [stating privacy of information relating to psychotherapy is a “core value” protected by California Constitution Article I, Section 1; San Diego Trolley Co. v. Superior Court [2001] 87 Cal. App.4th 1083, 105 Cal. Rptr.2nd 476.
V. FEDERAL STATUTE PROTECTS INFORMATION
ABOUT TREATMENT AT A SUBSTANCE ABUSE TREATMENT CENTER
Controlling federal statute provides that no information identifying a patient or his treatment at a federally funded treatment center may be disclosed until after a court has made a determination that “good cause” exists for such disclosure. Such a hearing places the burden of proof and going forward on the party seeking disclosure, and involves a balancing process similar to that independently required by the California Constitutional Right of Privacy. 42 USC 290 [dd] [2].
VI. THE ATTORNEY-CLIENT PRIVILEGE PROTECTS
INFORMATION RELATED TO EMPLOYEE TORTS FROM DISCLOSURE
Evidence Code § 950 et seq., defines the near-inviolate Attorney Client Privilege. That statute and related sections 950 through 962, inclusive, provide that communications with an attorney licensed by any state or any nation may not be disclosed, and that the client holds the privilege. An attorney must defend the communications against disclosure “at every peril to himself.” Business and Professions Code § 6068.
In the context of a master-servant relationship involving a corporation or other business entity, an employee whose conduct risks incurring liability for his employer shares the employer’s Attorney Client Privilege relating to investigations of the potential or actual legal ramifications of that conduct. D. I. Chadbourne v. Superior Court [1964] 60 Cal.2nd 723, 36 Cal. Rptr. 468. The common scenario is one involving an insurance company’s investigation of the facts relating to a potential claim; the work of adjusters, investigators, attorneys, and the rest of the internal team conducting the investigation, and the statements of employees whose work includes responsibility for such investigations, are protected by the Attorney Client Privilege.
In this case, where an investigation was made into claims of misconduct allegedly committed by defendant Doe 3 arising in connection to his service as a priest, under the doctrine of Chadbourne, Defendant Doe 3 is a co-holder of the Attorney-Client Privilege, which he can assert independently of the Diocese. He has never waived that privilege, and continues to assert it.
VII. THE PRIEST-PENITENT PRIVILEGE
PROHIBITS DISCLOSURE OF COMMUNICATIONS
WITH A CLERGYMAN
Evidence Code § 1030 et seq. establishes the “Penitent’s Privilege.” It provides that a person holds a privilege to prevent disclosure of a “communication made in confidence, in the presence of no third person so far as the penitent is aware, to a [1] member of the clergy who, in the course of the discipline or practice of [2] the clergy member’s church, denomination, or organization, is authorized or accustomed to hear [3] those communications and, under the discipline or tenets of his church, denomination, or organization, has a duty to keep [4] those communications secret.”
Some of the items within Defendant Doe 3’s personnel records include statements that are protected by this privilege, and Defendant therefore asserts it.
VIII. DISCLOSURE OF CONFIDENTIAL DOCUMENTS
WILL INFRINGE ON DOE 3’s CONSTITUTIONAL RIGHT
TO FREE EXERCISE OF RELIGION
Some documents in Doe 3’s confidential personnel records relate to his practice of his religious faith and are intertwined with Roman Catholic religious dogma. They involve the internal workings of the Roman Catholic Church when confronted with the possibility that an ordained priest has a sexual problem, which is forbidden by Church law. Those proceedings entail an intimate process by which the Church, through the bishop and his surrogates, attempt to save the soul and profession of a priest who has been ordained as a representative of God on Earth. Communications involved in that process are foundational to the practice of the Roman Catholic religion and its clergy, and are entitled to remain private. To disclose such communications to a civil litigant will severely erode the necessary relationship between a Cardinal and his priests and violate the Free Exercise Clause of the First Amendment to the United States Constitution. It will chill the relationship between priests and their bishops, because the priests will become reluctant to bear their souls to the bishops if courts can invade those core documents.
For the Roman Catholic Church to be free to continue its practices, which have done immeasurable good for billions of people around the world for two millennia, its internal communications to confront and reform wayward priests must remain free from civil process and public disclosure. If priests are aware that what they say in private to their superiors about their shortcomings will become disclosed upon the request of anyone wielding a subpoena, many of them will choose not to confide in their superiors. That result will break the essential relationship of the Roman Catholic Church, and by so doing, it will violate the rights of the Church itself and the priests to practice their religion freely.
Doe 3 does not contend that any church has a protected license to practice illegal sexual contact with children, but that the Church and Doe 3 are in a unique relationship essential to the Roman Catholic Religion, and that the communications within that relationship are sacrosanct from civil process. Any other rule will excessively chill the practice of the Roman Catholic religion by its priests, and destroy the foundational relationship between a bishop and the priests under his responsibility.
In Presbyterian Church [U.S.A.] v. United States [1990] 752 Fed. Supp.1505, a church which had declared itself a sanctuary for illegal immigrants won the right to sue the government to enjoin a legal law enforcement investigation by the Immigration and Naturalization Service because the church’s First Amendment rights could be chilled by that lawful investigation. That principle applies directly to this case, because it is patently obvious that priests will become reluctant to practice the open relationship with their bishop as demanded by Roman Catholic dogma if private documents concerning that relationship are compelled to be disclosed.
At a minimum, the threshold of “strict scrutiny” must be applied to any documents concerning the priest-bishop relationship. Snyder v. Evangelical Orthodox Church [1989] 216 Cal. App.3rd 297. Plaintiff has fallen far short of carrying the burden to overcome that high bar.
The California Supreme Court applied analogous principles in White v. Davis [1975] 13 Cal.3rd 757, when it enjoined the Los Angeles Police Department from having undercover officers present in public places on college campuses to surveil students for the purpose of trying to ferret out evidence of criminal conspiracies by student activists.
IX. COMPELLED STATEMENTS ARE INVOLUNTARY
AND PROTECTED FROM DISCLOSURE BY THE FIFTH AMENDMENT
Any incriminating statements made by an employee under threat of discipline are involuntary, and inadmissible in evidence. “The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. Slochower v. Board of Education [1956] 350 U.S. 561, at 557-558. “The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.” Slochower, supra, 350 U.S. 561, at 641.
X. CONCLUSION
All of the documents in Doe 3’s confidential file are protected from disclosure by the Constitutional right of privacy. Before disclosure can be compelled, the Plaintiff is required to make a factual showing of a compelling public need, which he has failed to do. Even were Plaintiff to meet that high bar, it would be only the first step in a careful process of document by document in camera review.
The normal rule of discovery, that the court may order disclosure of inadmissible or irrelevant information if it may lead to relevant evidence, does not apply to private papers. Disclosure of such papers cannot be compelled unless they are admissible in the action.
In addition to Plaintiff’s wholesale failure to overcome the privacy privilege, specific statutory privileges protect most of the documents from disclosure, as a individual document review will demonstrate.
Plaintiff’s motion to compel production, on this record, must be denied.
January 26, 2010 Respectfully Submitted,
8
Donald H. Steier, Esq.
9 Attorney for Defendant DOE 3
Donald H. Steier [SBN 58391]
GUZIN & STEIER
4525 Wilshire Boulevard
Suite 201
Los Angeles, CA 90010
[323] 932-1600 / Fax [323] 932-1873
Attorney for Defendant DOE 3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT
Coordinated Proceeding Special Title,
(Rule 1550(b))
THE CLERGY CASES I
___________________________________
LUIS C., an individual
Plaintiff,
v.
JOHN DOE 1, an individual; JOHN DOE 2, an individual; JOHN DOE 3, an individual; JOHN DOE 4, an entity form unknown; and DOES 5 THROUGH 1000, inclusive,
Defendants. Case No. JCCP 4286
[Honorable Emilie H. Elias, Coordination Trial Judge]
Case No. BC376766
********
A lot of people seem to think I was part of the L.A. settlement in July 2007. I live in L.A. but my crimes took place in 1951-1953 Illinois. That state does not look like it will ever have a window and the IL State Supreme Court ruled last September that people over 40 pretty much cannot file for damages at all in that state. So, no, I did not get a settlement and I was not part of the L.A. Cases.
I just live here.
-ke
What L.A. plaintiffs are up against re release of perp priest personnel files
.
"Not one trial occurred, not one allegation against any priest was proved." Attorneys for pedophile priests filed this objection to unseal docs November 2008. CofA will post more docs filed subsequently by the Guzin & Steier lawfirm to prevent release of documents momentarily:
Father Doe, for himself and other non-party priests similarly situated and identified in their Objection to the Proposed Transfer of Records filed in this court on or about January 28, 2008, the public disclosure of whose privileged and private personnel records are the subject of the Application for Order of Reference, hereby appears specially to oppose the Order and the proposed transfer.
I. STATEMENT OF THE CASE
The facts before the court in these Clergy Cases I are entirely distinct from those that were before the court in the Clergy Cases II matter some months ago, as are the arguments presented herein. While plaintiffs have made facile arguments in their moving papers regarding their claimed intent to have had the court retain jurisdiction to appoint a referee to disclose the priests’ private files, they utterly failed to take the legally requisite steps to accomplish that goal. Now, with legal sleight of hand that would make a shell-game con-man proud, they seek to finagle this court into making orders that would be entirely ultra vires.
The fact is that, with the possible exception of a few individual cases subject to their own unique facts, all of the cases involved in this Coordination Proceeding were dismissed by the end of January, 2008.
Prior to those dismissals, the parties never, either in writing signed by the parties or orally before the court by the parties, asked the court to retain jurisdiction to conduct the kind of post-dismissal proceeding contemplated by the proposed Order of Reference, as provided by Code of Civil Procedure § 664.6.
There was never a hearing regarding retaining jurisdiction in these cases.
Further, in these cases the court never made an order retaining jurisdiction to implement the terms of the settlement agreement, including the proposed Order of Reference.
The cases having been dismissed, jurisdiction was lost. Plaintiffs did nothing effective to prevent that state of affairs, but now they seek to have the court act outside the bounds of the law to rescue them from their own missteps.
Beyond the utter failure to follow the procedure of C.C.P. § 664.6, the application for the proposed order of reference seeks to make this court the implement of stark Constitutional abuses on several grounds.
This case directly involves the property, privacy and liberty rights of hundreds of priests whose private personnel records are the subject of the plaintiffs’ effort to transfer their private records to a private referee for the ultimate purpose of disclosing to the public the contents of those files. The files typically include exceedingly sensitive private information, such as records of psychotherapy, financial matters, other health matters, religious matters and private spiritual communications, and sometimes information about sexual activity or sexuality.
The Application arose after the conclusion by settlement of litigation by hundreds of individuals who sued various religious entities, including the Roman Catholic Archbishop of Los Angeles [“RCALA”, hereinafter], alleging various “childhood sexual abuse” committed by priests and other employees of RCALA and other Roman Catholic organizations. Virtually all of the lawsuits were filed under the one-year suspension of the statute of limitations that was enacted in Code of Civil Procedure § 340.1. The cases concluded with settlement agreements, releases, and dismissals of the complaints. The settlement agreement called for the payment of hundreds of millions of dollars in damages by the religious organizations, and purported to include a process for the religious employers to transfer their priests’ private files to a private referee and then to turn the contents of those files over to the plaintiffs, so that they can disclose them to the public.
Not one trial occurred, not one allegation against any priest was proved, and the settlement agreements all contain express denials of wrongdoing – which were accepted in every case by the plaintiffs. The plaintiffs’ purpose in disclosing the priests’ private files to the public is to act as self-appointed guardians of public safety by branding the priests as child molesters, although no such allegations were ever proved and the priests were never afforded an opportunity to defend their interests, and purportedly to “educate” the public about child molestation.
None of the priests whose records are at issue agreed to the transfer or were even parties to the collusive agreement between plaintiffs and the custodians of records, the employers of the priests.
The plaintiffs did not seek the relief of public disclosure of the private files of non-parties in their complaints, but arrived at the proposed process by secret negotiation with the custodians of the records. In most cases, the plaintiffs chose not to make the priests parties in their lawsuits. Where priests were named defendants, they refused to accept any out-of-court settlement, and plaintiffs chose to dismiss them without obtaining releases or consents from them.
Now all applicable statutes of limitation pertaining to plausible actions against the priests have expired, and the court can never acquire jurisdiction over them for the purpose of rendering a judgment that affects their property and privacy rights,
The plaintiffs failed to comply with the requirements of Code of Civil Procedure § 664 regarding petitioning the court to retain jurisdiction over the matter for the purpose of making a general reference, and virtually all of the cases have long since been dismissed, ending the court’s jurisdiction.
As discussed in detail below, Father Doe contends that the proposed / threatened transfer of his files will violate his Due Process rights and his Right to a Jury Trial, and will constitute court-sanctioned cruel and unusual punishment. It is also clear under Code of Civil Procedure § 389 that, as to the remedy of disclosing their private records, the priests are indispensable parties, and the court has a sua sponte duty to protect their interests. Merely providing an opportunity for them to present their statutory and Constitutional assertions of privilege to the contents of the files falls far short of protecting their substantive property, privacy, and reputational rights. The California Legislature has provided the priests with the right to a jury trial before their interests in their private papers can be impaired, and neither the plaintiffs nor this court can take that right away.
Furthermore, under California’s Constitution, it is the Legislature which has the power to create and define remedies, and there is no remedy in California law such as that the plaintiffs seek to have this court impose on the priests.
Likewise, to the extent there may be a public interest in identifying actual child molesters, the Legislature has already acted in a comprehensive way. There is a legislative plan that provides for public disclosure after the criminal conviction of a child molester, not upon the mere accusation by a private party whose motivation may be tainted by the pursuit of monetary gain. In California it is the People alone that have been entrusted with the terrible power to bran someone with a scarlet letter, and this court lacks the authority to create another procedure.
II. THE COURT LACKS SUBJECT MATTER JURISDICTION
TO MAKE ANY ORDER IN THE DISMISSED CASES
Aside from the Constitutional barriers to the remedy plaintiffs urge that are discussed above, the plaintiffs also utterly failed to comply with the mandatory procedures to empower the court to retain jurisdiction over cases that are dismissed.
The sole authority in California for the procedure to retain jurisdiction to carry out a settlement agreement is found in Code of Civil Procedure § 664. 6.
That provision reads:
“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”
It is clear that, in order for a court to retain jurisdiction to enforce terms of a settlement, there [1] must be a request by the parties themselves, and not merely by their attorneys, [2] it must be made to the court in a writing signed by the parties or by the parties orally in the presence of the court, and [3] it must be ordered by the court before the case is dismissed.
The California Supreme Court, in Levy v. Superior Court [1995] 10 Cal.4th 578, reviewed the history of Code of Civil Procedure § 664.6. It concluded, “[W]e conclude that the term “parties” as used in section 664.6 (“If parties to pending litigation stipulate ... for settlement of the case ...”) means the litigants themselves, and does not include their attorneys of record.”
Plaintiffs use the facts in very misleading ways to support their contention that this court retains jurisdiction to make the proposed order after dismissal of the cases. The truth is that the facts do not even come close to conferring jurisdiction on this court to make the requested order.
The statute requires the parties to make the request to retain jurisdiction, either in a writing signed by the parties or orally before the court. It is crystal-clear from the record and the exhibits accompanying the application that neither option occurred.
While there was a grand public proceeding for some attorneys to announce very general terms of a settlement in court on July 16, 2007, not a single party was asked if he consented to the “settlement.” Indeed, it is clear that many, perhaps most, of the plaintiffs were absent, as were most of the defendants. Nothing that occurred in that spectacle constituted a request by the parties “orally before the court” to retain jurisdiction to make the proposed order. In fact, the actual purpose of the hearing and the only order resulting from it served to vacate a trial date so that settlement terms could be finalized.
Furthermore, on July 16, 2007, many individual priests were still parties to the litigation, and not one of them consented to the “settlement.”
It is impossible for the court appearance of July 16, 2007, to constitute an adequate request to retain jurisdiction made by the parties orally before the court.
Surprisingly, the record makes it clear that no writing “signed by the parties” was ever filed with this court to request that the court retain jurisdiction, either.
That no request to retain jurisdiction “signed by the parties” was ever filed with the court is admitted by plaintiff’s liaison, Anthony de Marco, at the court’s hearing on July 18, 2008.
At page 36 of the Reporter’s Transcript:
MR. DE MARCO: The reason we did not file them [signed settlement agreements] as part of the record is there is an awful lot of private information that, if it's part of the public record, can get out.
Mr. De Marco again admits that no signed request was every submitted to the court in the declaration he filed in support of the application. In paragraph 8 of that declaration, he states that “I have in my possession the signatures of all parties to the settlement agreement. . . . {I}f requested by the Court each signature can be provided to the Court for In Camera Review.”
Interestingly, Mr. De Marco does not aver that the parties’ signatures are on the settlement agreement, only that he has the signatures of those people who were parties to the settlement agreement. There is no evidence that those signatures are on a request to the court to retain jurisdiction after dismissal.
Decisively, it is very clear that those signatures were never presented to the court before the cases were dismissed – indeed, it appears that they still have not been submitted to the court. With all professional respect, Mr. De Marco is not the court, and his secret files do not constitute court records. The only possible conclusion that can be made is that the parties never requested in a signed document that the court retain jurisdiction pursuant to § 664.6 before the cases were dismissed. That is true to this day, and the cases were dismissed more than a year ago.
There are only two ways to comply with the mandatory requirements of Code of Civil Procedure § 664.6: before the underlying cases are dismissed, the parties personally must make an oral request before the court, or the parties must file a signed request by them with the court.
It is questionable that Mr. De Marco actually has the signatures of all the parties on settlement agreements before the dismissals because until that time, some individual priests were parties. And those priests did not sign any such request.
“When there is a voluntary dismissal of an entire action, the court’s jurisdiction over the parties and the subject matter terminates.” Wackeen v. Malis [2002] 97 Cal. App,.4th 429, at 437.
It is too late for the parties to stipulate or otherwise try to create jurisdiction that has ended. Subject-matter jurisdiction “cannot be conferred by consent, waiver, or estoppel, the court cannot ‘retain’ jurisdiction it has lost.” Viejo Bancorp, Inc. v. Wood [1989] 217 Cal. App.3rd 200, at 207.
The twin cases of Wackeen, supra, and Hagan Engineering, Inc. v. Mills [2004] 115 Cal. App.4th 1004 deal with similar situations in which parties failed effectively to retain jurisdiction pursuant to Code of Civil Procedure § 664.6, and they are close enough to be controlling in this case.
The Second District Court of Appeal in Wackeen addressed exactly the 1993 amendment to § 664.6 that deals the procedure for a court to retain jurisdiction to enforce a settlement agreement after the dismissal of the underlying case. Said the Court:
“We hold that the effect of that amendment is to provide courts with continuing jurisdiction over parties and their litigation, for the purpose of enforcing their settlement agreement, despite a suit’s having been dismissed after the execution of the agreement. We further hold that in order for a court to assert such continuing jurisdiction, the parties’ request for retention of jurisdiction must satisfy the same formalities that courts and the Legislature have imposed generally on section 664.6 motions and the settlement agreements such motions seek to enforce. Like section 664.6 motions themselves, requests for retention of jurisdiction must be made prior to dismissal of the suit.” Moreover, like the settlement agreement itself, the request must be made orally before the court or in a signed writing, and it must be made by the parties, not by their attorneys, spouses or other such agents. If, after a suit has been dismissed, a party brings a section 664.6 motion for a judgment on a settlement agreement but cannot present to the court a request for retention of jurisdiction that meets all of these requirements, then enforcement of the agreement must be left to a separate lawsuit. “ [Emphasis added.]
The Court also discussed other requirements of a request to retain jurisdiction. Such a request “must be express, not implied from other language, and it must be clear and unambiguous.” It further noted that these formalities promote judicial economy – by preventing messy situations such as plaintiffs have created here – and they protect the litigants. “No litigant should be placed in the position of relying on representations, from an adversary or an attorney, that certain actions taken [or not taken], or certain language in a settlement agreement, will suffice for retention of personal and subject matter jurisdiction after a suit is dismissed, only to discover, after the dismissal agreement is signed and the dismissal has been accomplished, that someone has raised an issue regarding whether jurisdiction was actually retained.”
Lacking compliance with these formalities, “no matter how meritorious” a post-dismissal enforcement action may be, it cannot be accomplished pursuant to Code of Civil Procedure § 664.6.
Hagan Engineering, supra, is a yet more recent case with facts quite similar to those at issue here. In litigation regarding the theft of the trade secrets of potato sizers, the parties executed a settlement agreement which stated, “the parties hereto agree that the San Joaquin County Superior Court shall, notwithstanding entry of the Request for Dismissal required above, retain jurisdiction to enforce this Agreement pursuant to the provisions of section 664.6. It also specified that, among other things, in an enforcement action a party could obtain injunctive relief.
The parties failed to present the signed settlement agreement with those retention of jurisdiction provisions to the court before dismissing the cases. Later, one of the parties sought to enforce the settlement by means of a motion made under § 664.6, which the trial court granted. That order was appealed on the grounds that the parties had failed effectively to retain jurisdiction, and the cases had been dismissed, stripping the court of power over the subject matter.
Ruled the Court, “Absent a pending lawsuit, a court cannot issue judgments or orders. . . . A dismissal terminates an action.”
“The settlement agreement purporting to vest the trial court with retained jurisdiction after the dismissal was a nullity. Subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel.”
“In this case, Hagan did not make a request to the court to ‘retain jurisdiction,’ but instead, as required by the settlement, dismissed the action with prejudice.”
The Hagan court noted that the plaintiffs had other options available, such as [a] obtaining an order retaining jurisdiction before the dismissals were filed, [b] negotiating a conditional dismissal, [c] seeking to vacate an order based on Code of Civil Procedure § 473, and [d] filing a new lawsuit to enforce the settlement agreement. But under the facts of that case, the court had lost jurisdiction the moment the dismissals were filed, and without a request for retained jurisdiction that complied with the requirements of § 664.6, any attempt of the court to enforce the agreement was a nullity.
Plaintiffs did less in this case to retain jurisdiction according to the rule of law than was done in Hagan. As a result they put this court in the position that it now lacks jurisdiction to make the order requested by them.
The parties failed, by their own devices [the deliberate decision not to file anything signed by the parties in support of the aim of retaining jurisdiction], to satisfy the only means permitted by law for a court to retain jurisdiction to oversee a settlement agreement.
In any event, in this case, we have seen that the intended settlement procedure would violate myriad Constitutional rights of the priests, and the court cannot enforce those illegal provisions.
III. DUE PROCESS PROHIBITS GRANTING THE APPLICATION
In order starkly to understand how the proposed transfer of files is offensive to the Constitution, and not merely some sort of discovery-like matter involving determination of assertions of arcane privileges, an analogy will serve.
Instead of suing a church, assume the plaintiffs sued a bank for some tort committed by bank employees. To settle the case, the plaintiffs agreed with the bank that it would pay a sum of money as damages, and also transfer to the plaintiffs the contents of the personal bank accounts of the employees, even though the employees were not parties to the action and never agreed to such a result. Could any court sanction such a settlement? It would be a conspiracy to steal, pure and simple.
Although the priests’ rights involved in this collusive settlement are privacy and reputation, the offense to the Constitution is identical.
Both the United States and California Constitutions provide that the government, including this court, may not deprive anyone of life, liberty, or property without Due Process of law. At its most basic, that means affording the person whose interests are to be affected with notice and an opportunity to defend those interests.
Employees enjoy legally protected rights in the contents of their personnel records. While a corporate employer may not have a right of privacy from the California Constitution, Article I, Section 1, the individual employee does enjoy such a right as to the entire contents of his employee files. “[I]t is clear . . . personnel records and employment history are within the scope of the [privacy] protection provided by the state and federal Constitutions.” San Diego Trolley, Inc. v. Superior Court [2001] 87 Cal. App.4th 1083, at 1097; Board of Trustees of Stanford University v. Superior Court [1981] 119 Cal. App.3rd 516; Harding Lawson Associates v. Superior Court [1992] 10 Cal. App.4th 7; El Dorado Savings & Loan Assn. v. Superior Court [1987] 190 Cal.App.3d 342.
In many of these cases, the personnel files contain records pertaining to psychotherapy obtained by the employees, as well as ecclesiastical disciplinary information, medical records, financial information, and other extremely private and even intimate information concerning the employee, and sometimes, third persons who are not parties to this litigation. The relationship between a Roman Catholic priest and his employer, the Archdiocese in this case, is a uniquely close, all-encompassing one, in which the employer is also the direct spiritual superior of the employee, and between them there can be no secrets.
Disclosure of the information contained in these confidential employee files will clearly violate the Constitutional privacy rights of these objecting individuals. In Susan S. v. Israels [1997] 55 Cal. App.4th 1290, the court held that the unauthorized “reading and dissemination” of private files obtained by court process was a “serious invasion of the person's privacy.” And it was found to be actionable. Indeed, to the extent that the files contain medical information, including psychotherapy records, disclosure can be criminal. Civil Code § 56.36. This court cannot lawfully provide sanction for a tort or a crime.
The employer / custodian of these records has no rights in them, only a duty to protect them from disclosure. “[W]e begin with the general proposition that the custodian of materials protected by evidentiary privilege owes a duty to the holder of the privilege to claim the privilege and to take actions necessary to ensure that the materials are not disclosed improperly.” People v. Superior Court [Laff] [2001] 25 Cal.4th 703, at 713.
California adheres to the “primary rights” principles to define causes of action. One of those primary rights is the right to freedom of injury to reputation. Burdette v. Carrier Corp. [2008] 158 Cal. App.4th 1668; 4 Witkin, Cal.Procedure, Pleading § 23. The clear goal of the plaintiffs in attempting to finesse a post-settlement disclosure of the personnel records of these objecting non-parties is to destroy their reputations and publicly brand them as child molesters without any Due Process. Despite the plaintiffs lurid discussion of the “compelling need” to brand the priests as sexual abusers, nothing on those lines was ever proved in these cases. They were all settled without trial, and the parties, including plaintiffs, agreed that the allegations were expressly denied.
Thus, these objecting individuals have two important interests that will be seriously damaged or destroyed by the process of forwarding their files for public disclosure: their Constitutionally protected privacy rights will be violated, and their reputations will be harmed.
The right of privacy is equivalent to a property right. Vinson v. Superior Court [2002] 103 Cal. App.4th 409, at 418.
There is a general principle that “the rights of a person cannot be affected by a suit to which he is a stranger.” Whitney v. Higgins [1858] 10 Cal. 547. See also . Hanson v. Denckla [1958] 357 U.S. 235; Mallow v. Hinde [1827] 1 Ohio Fed. Dec. 150.
A judgment cannot be amended to affect the rights of a person not under the court’s jurisdiction. Boyer v. Jensen [2005] 129 Cal. App.4 62.th
Leaving aside the fact that there is no statutory or decisional authority supporting the relief sought, publicly branding a person to be a child molester, the plaintiffs did not bring the affected parties, the priests, before the court, the priests never had a chance
To defend themselves, and the plaintiffs never proved anything against the priests. In short, there has been an utter absence of Due Process as it relates to the priests’ private employment records.
In Ferraro v. Camarlinghi [2008] 161 Cal. App.4th 509, parties to a probate contest sought to settle the case – and inveigled a court to sign such an order – by agreement of all but one of the legal heirs. That heir was excluded by the parties, and later challenged the judgment. It presented a stark Due Process issue, just as the proposed order does herein.
In reversing, the Court of Appeal said, “As for the general powers of a superior court, we are quite satisfied that no judge sitting in a general civil department would dream of issuing the kind of order here at issue under the circumstances shown by this record. It is only the smoke and mirrors conjured by counsel through invocation of the court’s probate powersaw that could have induced Judge Levinger to make such an order.” The Court held that the trial court acted ultra vires – thus, in violation of the Constitution that granted it power – when it made an order affecting the rights of a person who was not under its jurisdiction and without affording full Due Process to that person. This court should not let plaintiffs’ “smoke and mirrors” place it in the same lonely place.
Another recent case, Humphries v. County of Los Angeles [2008] 547 Fed.3rd 1117 held that California’s requirement that counties maintain a database of information about “child abusers” violated the Due Process Clause because it permitted unproven information to be included in the database without a process for its truthfulness to be challenged. Here the matter is worse, because there is no public oversight at all, simply a press by private individuals to destroy lives with allegations that are all denied.
The church employers have no right to agree to the disclosure of the employment records of the non-party priests. The agreement is illegal, it ignores the Constitutional Due Process rights of the priests, and cannot be enforced by any court. On the contrary, the rights the court must enforce and protect are the Due Process rights of the priests.
IV. THE PRIESTS’ RIGHT TO A JURY TRIAL PROHIBITS
GRANTING THE APPLICATION
California Constitution Article I, § 16 provides the right to a jury trial in civil and criminal cases. Denial of that right by any court exceeds its jurisdiction. Knight v. Superior Court [1950] 95 Cal. App.2nd 838. The right to a jury trial attaches to suits alleging torts as well as to forfeiture proceedings. Rowe v. Superior Court [1993] 15 Cal. App.4th 1711; Windsor Square Homeowners Association v. Citation Homes [1997] 54 Cal. App.4th 547; People v. $17,522.08 United States Currency [2006] 142 Cal. App.4th 1076.
Indeed, the landmark case of People v. Burnick [1975] 14 Cal.3rd 306 held that where the object of a civil proceeding will expose the defendant to serious social stigma, it triggers the protections of a criminal prosecution, including proof beyond a reasonable doubt and a unanimous verdict. That rule has been followed in many subsequent cases where the inevitable result of a case would be social stigma.
Far from affording the priests the right to a jury trial, the plaintiffs have done everything possible to prevent the priests from defending their rights and legal interests.
They omitted them as defendants in the action, with few exceptions [and those exceptions are of no moment, since in every single case the plaintiffs agreed to dismiss the few priest-defendants in order to reach settlement with the deep pocket institutional defendants and insurance carriers]. They added the “relief” of disclosing the priests’ private files in secret negotiations with the custodians of the records, and reached an agreement to violate the private contents of those files without the consent of the people whose property they are, the priests.
If such a remedy exists – and no authority has been provided to support it – it cannot be ordered unless the priests whose files it directly affects have had their jury trials. Nothing has been proved against them in this court, and none of them have agreed to have their privacy violated and reputations smeared.
V. THE APPLICATION MUST BE DENIED BECAUSE
PLAINTIFFS FAILED TO JOIN INDISPENSABLE PARTIES
Code of Civil Procedure § 389 provides that a person is “indispensable” to litigation when that person “claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may . . . as a practical matter impair or impede his ability to protect that interest.”
The disposition of this action by the process of exposing these individual priest-objectors to disclosure of their confidential personnel records will definitely “impede or impair” their privacy and reputational interests.
If the plaintiffs wanted to obtain relief from this court that destroyed these interests of these individuals, they should have asked for that relief from the beginning, and made the individual priest-employees parties, so they could defend their rights. But plaintiffs chose not to do that, and cannot obtain such relief that directly violates the rights of these priest-employees without providing them the opportunity to defend their rights. Failure to join indispensable parties so that they may defend their interests violates the Due Process of those persons. Shields v. Barrow [1854] 58 U.S. 129; Fletcher Aircraft Co. v. Bond [1977, D.C. Cal.] 77 F.R.D. 47.
But plaintiffs cannot now do that, because the applicable statute of limitations has lapsed as to all of these individuals. Code of Civil Procedure § 340.1; Sierra Club, Inc. v. California Coastal Commission [1979] 95 Cal. App.3 495. rd
The very recent case of Tracy Press, Inc. v. Superior Court [2008] 164 Cal. App.4 1290 is controlling in this context. Tracy Press made a Public Records Act request on the City of Tracy, California, for emails, including those from a city councilwoman using her personal computer. The request was denied, and Tracy Press filed suit against the city and the councilwoman, which it lost. It then sought appellate relief against the city, apparently inadvertently omitting to include the councilwoman. By the time Tracy Press realized its error, the statute of limitations for seeking relief had passed, and the councilwoman could not be added. The question remaining was whether she was an indispensable party, and if so, whether the case had to be dismissed for failure to join an indispensable party. th
The Court of Appeal – which raised the issue sua sponte on appeal – decided the councilwoman was clearly indispensable, and that the case had to be dismissed. Said the court, citing precedent, “The controlling test for determining whether a person is an indispensable party is, ‘Where the plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined, that third person is an indispensable party.’ More recently, the same rule is stated, ‘A person is an indispensable party if his or her rights must necessarily be affected by the judgment.’”
“The order that Tracy Press seeks requiring Tucker to give Tracy Press access to writings she possesses personally would necessarily affect her rights.” Likewise, giving plaintiffs, a referee, or the public access to the priests’ private employee records, deliberately destroying their reputations in the process, will necessarily affect their rights. Intellectual integrity compels recognizing that fact; nothing could be clearer.
The court has an independent duty to raise the issue of an absent indispensable party sua sponte. Francis v. United Technologies Corp. [1978] 458 Fed. Supp. 84.
Plaintiffs have attempted to manipulate this court into being their unwitting instrument for violating the important rights of the non-party employees, but their stratagem is clearly prohibited by statute and important Constitutional principles.
Without jurisdiction over the priest-employees whose private files and reputations are at risk, this court may not enter an order that might have the effect of jeopardizing the rights of these objecting individuals.
It is important and equitable to note that it is the plaintiffs themselves and their deliberate strategy of excluding the priests from the litigation that led them into this legal dead-end.
Denial of the file transfer application is compelled by law.
VI. THE PUBLIC DISCLOSURE PROCESS IS PUNITIVE
AND CONSTITUTES ILLEGAL VIGILANTE JUSTICE
Having taken their monetary settlement, plaintiffs now seek to abuse the court’s power to carry out private, vigilante justice, taking sensitive private information from private files and publicizing it to shame the “accused” and stigmatize them in a most horrible way. The process has none of the safeguards of the Constitution that attaches to the penal process – the accusers are anonymous, protected by “Doe” fictitious names, there has been no confrontation, no cross-examination by the accused, no impartial prosecutor sworn to do justice, no finding that the lurid accusations are true by a jury or any other impartial fact finder. In fact, the “accused” have been entirely shut out of the process intended to ruin them. Plaintiffs have created a private “Star Chamber,” and they now ask the court’s blessing and power to operate it.
Public shaming was a kind of criminal punishment in colonial times, one long since determined to violate the Constitution and abandoned in the United States. Fredenburg v. City of Fremont [2004] 119 Cal. App.4th 408; Smith v. Doe [2003] 538 U. S. 84. In Smith, the Supreme Court reviewed the history of the past punishment of shaming, at pages 97-98, where the intent was to make the offenders suffer “permanent stigmas, which in effect cast the person out of the community.” Illegal today, shaming was recognized as punishment for a crime, and required the full panoply of Constitutional criminal procedural rights before it could be imposed.
“Public shaming has long been viewed as a form of punishment.” People v. Castellanos [1999] 21 Cal.4th 785. It affects a liberty interest protected by the Due Process Clause. Levenstein v. Salafsky [2005, 7th cca] 414 Fed.3rd 767. “Indivudals have a strong interest in not being associated unwarrantedly with alleged criminal activity.” Stern v. Federal Bureau of Investigation [USApp DC, 1984] 737 Fed.2nd 84, at 91-92.
Likewise, our legal history is replete with cases of vigilante justice, where an accused was forcibly banished from a community without trial. That process, too, is illegal. The Yankee, et al. v. Gallagher [1859] 1 McAll. 467, 30 Fed.Cases 781; Duane v. Goodall [1863] 7 Fed. Cases 1132; Roza v. Smith [1895] 65 Fed. 592. All of those cases held that private punishment of a person was illegal and violated the victim’s constitutional rights. More than a century ago, the tactics attempted here were uniformly rejected in American jurisprudence.
This court must reject the plaintiffs effort to use judicial power to act as private prosecutors and carry out scores of virtual lynchings with the blessing of the power and reputation of the bench. American Constitutional law has no place for this process.
VII. THE PROCESS VIOLATES CONSTITUTIONAL
SEPARATION OF POWERS
California Constitution Article III, § 3 reads:
“The powers of state government are legislative executive, and judicial. Persons charged with the exercise of one power may not exercise either of the other powers except as permitted by this Constitution.”
There is no known private remedy such as plaintiffs seek to have this court impose in California law. It is the exclusive power of the Legislature to “define crimes and fix penalties.” Manduley v. Superior Court [2002] 27 Cal.4th 537. It is likewise the power of the Legislature to define civil remedies and relief available. Alch v. Superior
Court [2004] 122 Cal. App.4th 339. For this court to order a remedy that does not exist will constitute an additional violation of the Separation of Powers doctrine.
We have already established that the proposed process constitutes the punishment of shaming.
“In California, all criminal prosecutions are conducted in the name of the People of the State of California and by their authority. [Government Code § 100.] California law does not authorize private prosecutions.” People v. Eubanks [1997] 14 Cal.4th 580.
“The importance, to the public as well as to individuals suspected or accused of crimes, that these discretionary functions be exercised ‘with the highest degree of integrity and impartiality, and with the appearance thereof’ [citation omitted] cannot easily be overstated. The public prosecutor ‘is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.’” People v. Eubanks, supra, at 589.
Thus, it is not the place of the private plaintiffs to inflict punishment on these untried priests, and for this court to permit that process will constitute a violation of the Constitutional principle of Separation of Powers.
In fact, before most the cases in these Coordinated Proceedings were filed, the District Attorney of Los Angeles and the Grand Jury conducted extensive investigation of many of these same priests. Some were charged, and a handful were convicted. Those who were convicted became subject to the only legal process for public disclosure of sex offenders in California, under the sex offender registration statute, part of which – so-called Megan’s Law – establishes a publicly accessible database of convicted sex offenders. Penal Code § 290 et seq. Unlike the process pushed by plaintiffs here, the state’s database program was established by the Legislature after due deliberation, and comes into play after the Constitutionally required safeguards of public indictment, public trial, confrontation and cross-examination of the accuser, representation by an attorney, conviction by a unanimous jury after proof beyond a reasonable doubt, and public sentencing. Even then the information available to the public is very limited; it does not even include the convict’s home address, let alone his psychotherapy history. And breach of these statutory protections itself is a crime under the scheme enacted by the Legislature.
This court has no authority to fashion the remedy that plaintiffs seek.
VIII. A PROCESS ALLOWING THE PRIESTS
TO ASSERT PRIVILEGES BEFORE PUBLIC DISCLOSURE IS INADEQUATE
The entire proposal to invade and publicize the private records of non-parties violates those individuals Due Process Rights, Right to Trial by Jury, the statute concerning indispensable parties, Separation of Powers, and other Constitutional and statutory provisions.
To modify the settlement agreement to permit the priests at some point to assert claims of privilege is wholly inadequate and beyond the court’s jurisdiction.
It should obviously be a futility, as well. The basic Constitutional Right of Privacy covers every file and every page in those files, and it belongs to the priest-employee not the custodian of the files. El Dorado Savings and Loan Association v. Superior Court [1987] 190 Cal. App.3rd 342.
The Right of Privacy can only be overcome by a showing of a recognized compelling public need. In civil discovery, while litigation is pending, ascertainment of the truth often suffices to open personnel files for the purpose of litigation. Board of Trustees of Stanford University v. Superior Court [1981] 119 Cal. App.3rd 516.
But this litigation has ended, there are no trials now looming, and there is no compelling public need to invade the files. Even if the court had no Constitutional barriers to the reference process, it would be futile to make the reference when the case is in the posture it is. There is no legal purpose to review the privileged files. To make a reference where there is no legal purpose, to permit further review of private files, exceeds this court’s jurisdiction.
IX. THE PROCESS VIOLATES THE DOCTRINE OF RIPENESS
As to the proposed remedy of referring the private files of non-party priests for public disclosure, the Constitutional doctrine of ripeness prohibits it.
The recent case of O'Grady v. Superior Court [2006] 139 Cal. App.4 1423 discussed these important principles. “thThe doctrine arises from several considerations. The requirement of a genuine controversy reflects the desirability of avoiding not only collusive litigation, but cases in which one or both parties lack a real motive to diligently contest the issues. If the competing considerations are not adequately explored and presented, the court may reach a less-than-circumspect result, potentially sending the law down a wrong precedential trail.”
In People ex rel. Lynch v. Superior Court [1970] 1 Cal.3rd 910, the Attorney General filed suit to declare rights under a prejudgment garnishment act – but the suit failed to include as a party anyone who actually was subject to such garnishment. The
Supreme Court characterized the matter as an effort to obtain an “advisory opinion,” in violation of the ripeness doctrine. That rule was followed recently in Phelps v. State Water Resources Control Bd. [2007] 157 Cal. App.4 89. Similarly here, there is no party who agreed to the reference process whose rights are actually affected by it – and thus, the matter is not “ripe” and suitable for this court to enforce. th
In this case, it cannot be said that the Archbishop, having neither privacy nor reputational rights at stake, lacks the motive strenuously to protect those rights.1 “Throwing in” the disclosure of these confidential personnel records to satisfy plaintiffs’ demands has no cost to the settling entity, but it means everything to the individuals whose rights will be violated.
The Constitution prohibits this court from enforcing a collusive settlement agreement that did not result from a truly adverse process over the rights at issue.
X. PRIESTS OBJECT TO DISCLOSURE OF THIRD
PARTY SUBPOENA RESPONSES TO REFEREE
Objections to the disclosure of those items listed in Exhibit E of the Court’s Tentative Order re Purportedly Sealed and Lodged Documents were filed with this court on November 26, 2008. We ask the court to take judicial notice of those objections. We have attached a copy of that pleading as an exhibit to this brief (Exhibit A).
1 Indeed, the plaintiffs and the Archdiocese “have priors” in this regard. In December, 2004, in connection with this same litigation, plaintiffs and the Archdiocese agreed to disclose publicly mediation “proffers” derived from the contents of many of the same personnel files at issue here. The appellate opinion of Doe 1 v. Superior Court [2005] 157 Cal. App.4th 89 prevented them from violating the rights of the priest-employees then.
XI. CONCLUSION
The process that the parties agreed to was never legal, and never within the court’s Constitutional authority to compel. It affronts the court’s dignity for plaintiffs to have made the application.
Plaintiffs utterly failed effectively to retain jurisdiction, and now ask the court to ignore their own failings and make an order that is wrong, unconstitutional, and ultra vires on multiple bases.
Code of Civil Procedure § 389 provides that a court can modify relief to protect the rights of an absent indispensable party, and the court should do that by striking the provision to invade the private employee files of third persons, the non-party priests.
February 9, 2009 Respectfully submitted,
GUZIN & STEIER
Donald H. Steier
Specially Appearing as Attorney for
Father Doe and priests similarly situated
EXHIBIT A
OBJECTION TO TENTATIVE ORDER re
DISCLOSURE OF THIRD PARTY
SUBPOENA RESPONSES TO
DISCOVERY REFEREE
(FILED NOVEMBER 26, 2008)
DONALD H. STEIER [SBN 58391]
GUZIN & STEIER
4525 WILSHIRE BOULEVARD
SUITE 201
LOS ANGELES, CA 90010
[323] 932-1600 / Fax [323] 932-1873
Attorney for Certain Priests Whose Interests Will Be Impaired
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES
COORDINATED PROCEEDING
SPECIAL TITLE [Rule 1550 (b)]
The Clergy Cases JUDICIAL COUNCIL COORDINATION PROCEEDING NOS. 4286
Trial Coordinating Judge:
Hon. Emily Elias
Department 308
OBJECTION TO TENTATIVE ORDER re DISCLOSURE OF THIRD PARTY SUBPOENA RESPONSES TO DISCOVERY REFEREE
Date: December 10, 2008
Time: 10:00 a.m.
DOCUMENTS1, and JOIN in the objections to that Tentative Order filed by Defendant Doe 1.
The aforenamed Objecting Persons make their objections as follows:
1. The disclosure is not made pursuant to discovery procedures as provided by the Legislature.
2. The court lacks retained jurisdiction to make such an order.
3. “All the parties” never requested the court in writing or orally in court to retain jurisdiction.
4. There was no hearing for the court to determine whether to retain jurisdiction.
5. There is no order signed by the court retaining jurisdiction pursuant to the provisions of Code of Civil Procedure § 664.6.
6. There is no application for an order appointing a referee as provided in the purported Settlement Agreement.
7. There is no order appointing a referee to whom to disclose any documents.
8. The process violates the Due Process Rights of the non-party alleged perpetrators who did not consent to the settlement agreement.
1 Although the court ordered the tentative ruling to be posted by November 5, 2008, such posting was not made until November 14, 2008.
9. The process violates the Right to a Jury Trial of the non-party alleged perpetrators who did not consent to the settlement agreement.
10. The order is void because indispensable parties have not been joined pursuant to the requirements of Code of Civil Procedure § 389.
11. The order provides state sanction to the illegal act of shaming, in violation of the prohibition against cruel and unusual punishment of the United States Constitution, and against cruel or unusual punishment of the California Constitution.
12. The order violates the Constitutional doctrine of separation of powers and infringes on the executive’s exclusive right to prosecute crime and the legislature’s exclusive right to determine punishment for crimes and civil remedies.
13. The order violates Penal Code § 924 which prohibits disclosure of grand jury evidence.
14. The order constitutes an abuse of the compulsory process of the court by changing the purpose of subpoenas that were issued and obeyed by third parties who never consented to such misuse of private and confidential documents.
15. The order constitutes an abuse of the discovery procedures created and enumerated by the legislature.
16. The order is the result of a collusive settlement agreement between parties that adversely affects the rights of third parties and public agencies that never consented to it.
17. The order fails to require notice of the proposed disclosure to the parties who delivered the documents to court under subpoenas issued for entirely different purposes. Notice of the tentative order has not been given to those third parties and law enforcement agencies.
18. The documents are protected from disclosure by Evidence Code § 1040 et seq. [Government Information Privilege].
19. The order violates the provisions of Government Code § 6254 et seq.
20. The documents are protected from disclosure by Penal Code § 293 [Right of Victim to Remain Anonymous].
21. The documents are protected from disclosure by Penal Code § 1054.6.
22. The documents are protected from disclosure by Penal Code § 11076 et seq. [Criminal information may only be released to government agencies pursuant to statute.]
23. The documents are protected from disclosure by Penal Code § 11105 et seq. [Criminal history information may only be released to authorized agencies.]
24. The order is illegal and the documents are protected from disclosure by Penal Code § 11140 [It is a crime to disclose law enforcement information except pursuant to statute.].
25. The order is illegal and the documents are protected from disclosure by Penal Code § 11143 [It is a misdemeanor to receive law enforcement records without authorization.].
26. The order is illegal and the documents are protected from disclosure by Penal Code § 11167.5 [Crime to disclose mandatory Report of Suspected Child Abuse.].
27. The documents are protected from disclosure by Penal Code § 13125 [Defining contents of confidential law enforcement records.].
28. The order is illegal and the documents are protected from disclosure by Penal Code § 13201 [Access to law enforcement information restricted by statute.].
29. The order is illegal and the documents are protected from disclosure by Penal Code § 13300 et seq. [Disclosure of law enforcement information restricted to enumerated government agencies.
30. The order is illegal and the documents are protected from disclosure by Penal Code § 13302 and 13303 [Crime for authorized person to disclose to unauthorized person.].
31. The order is illegal and the documents are protected from disclosure by Penal Code § 13304 [Crime for unauthorized person to receive law enforcement information.].
32. The order does not comply with the provisions of Code of Civil Procedure § 1985.3 and § 1985.6
33. The order violates the Right of Privacy established in California Constitution Article I, Section 1.
34. The order violates the Right to be Free of Unreasonable Searches and Seizures as provided in the Fourth Amendment to the United States Constitution.
35. The documents are protected from disclosure by the Privilege Against Self-Incrimination as provided in the Fifth Amendment to the United States Constitution.
36. The documents are protected from disclosure by the Attorney-Client Privilege [Evidence Code 950 et seq.].
37. The documents are protected from disclosure by the Work Product Privilege [Code of Civil Procedure 2018].
38. The documents are protected from disclosure by the Priest-Penitent Privilege [Evidence Code 1030 et seq.].
39. The documents are protected from disclosure by the Sexual Assault Victim-Counselor Privilege [Evidence Code 1035 et seq.].
40. The documents are protected from disclosure by the Right to Free Exercise of Religion as established by the First Amendment to the United States Constitution.
41. The documents are protected from disclosure by the Therapist-Patient Privilege [Evidence Code 1010 et seq.].
42. The documents are protected from disclosure by the Physician-Patient Privilege [Evidence Code 990 et seq.].
43. The documents are protected from disclosure by the California Confidentiality of Medical Information Act [Civil Code 56.20].
44. The documents are protected from disclosure by the Settlement Privilege [Evidence Code 1152].
45. The documents are protected from disclosure by the Mediation Privilege [California Constitution, Article I, Section 1, and Evidence Code 1115 et seq.].
46. The proposed order, in particular Footnote 6, constitutes an illegal modification by the court of the Settlement Agreement of which the Objecting Parties are third party beneficiaries, and to which they do not consent.
The Objecting Persons also submit that the court has a sua sponte duty to protect the documents from illegal disclosure, to assert privileges, and to prevent abuse of the court’s compulsory process as to all absent third persons described in those documents, and to provide notice of the procedure to the persons affected and parties that submitted the documents under discovery subpoenas
26 November 2008 Respectfully submitted,
GUZIN & STEIER
DONALD H. STEIER
Attorney for Objecting Persons
****
Posted by Kay Ebeling, Producer, City of Angels
"Not one trial occurred, not one allegation against any priest was proved." Attorneys for pedophile priests filed this objection to unseal docs November 2008. CofA will post more docs filed subsequently by the Guzin & Steier lawfirm to prevent release of documents momentarily:
Father Doe, for himself and other non-party priests similarly situated and identified in their Objection to the Proposed Transfer of Records filed in this court on or about January 28, 2008, the public disclosure of whose privileged and private personnel records are the subject of the Application for Order of Reference, hereby appears specially to oppose the Order and the proposed transfer.
I. STATEMENT OF THE CASE
The facts before the court in these Clergy Cases I are entirely distinct from those that were before the court in the Clergy Cases II matter some months ago, as are the arguments presented herein. While plaintiffs have made facile arguments in their moving papers regarding their claimed intent to have had the court retain jurisdiction to appoint a referee to disclose the priests’ private files, they utterly failed to take the legally requisite steps to accomplish that goal. Now, with legal sleight of hand that would make a shell-game con-man proud, they seek to finagle this court into making orders that would be entirely ultra vires.
The fact is that, with the possible exception of a few individual cases subject to their own unique facts, all of the cases involved in this Coordination Proceeding were dismissed by the end of January, 2008.
Prior to those dismissals, the parties never, either in writing signed by the parties or orally before the court by the parties, asked the court to retain jurisdiction to conduct the kind of post-dismissal proceeding contemplated by the proposed Order of Reference, as provided by Code of Civil Procedure § 664.6.
There was never a hearing regarding retaining jurisdiction in these cases.
Further, in these cases the court never made an order retaining jurisdiction to implement the terms of the settlement agreement, including the proposed Order of Reference.
The cases having been dismissed, jurisdiction was lost. Plaintiffs did nothing effective to prevent that state of affairs, but now they seek to have the court act outside the bounds of the law to rescue them from their own missteps.
Beyond the utter failure to follow the procedure of C.C.P. § 664.6, the application for the proposed order of reference seeks to make this court the implement of stark Constitutional abuses on several grounds.
This case directly involves the property, privacy and liberty rights of hundreds of priests whose private personnel records are the subject of the plaintiffs’ effort to transfer their private records to a private referee for the ultimate purpose of disclosing to the public the contents of those files. The files typically include exceedingly sensitive private information, such as records of psychotherapy, financial matters, other health matters, religious matters and private spiritual communications, and sometimes information about sexual activity or sexuality.
The Application arose after the conclusion by settlement of litigation by hundreds of individuals who sued various religious entities, including the Roman Catholic Archbishop of Los Angeles [“RCALA”, hereinafter], alleging various “childhood sexual abuse” committed by priests and other employees of RCALA and other Roman Catholic organizations. Virtually all of the lawsuits were filed under the one-year suspension of the statute of limitations that was enacted in Code of Civil Procedure § 340.1. The cases concluded with settlement agreements, releases, and dismissals of the complaints. The settlement agreement called for the payment of hundreds of millions of dollars in damages by the religious organizations, and purported to include a process for the religious employers to transfer their priests’ private files to a private referee and then to turn the contents of those files over to the plaintiffs, so that they can disclose them to the public.
Not one trial occurred, not one allegation against any priest was proved, and the settlement agreements all contain express denials of wrongdoing – which were accepted in every case by the plaintiffs. The plaintiffs’ purpose in disclosing the priests’ private files to the public is to act as self-appointed guardians of public safety by branding the priests as child molesters, although no such allegations were ever proved and the priests were never afforded an opportunity to defend their interests, and purportedly to “educate” the public about child molestation.
None of the priests whose records are at issue agreed to the transfer or were even parties to the collusive agreement between plaintiffs and the custodians of records, the employers of the priests.
The plaintiffs did not seek the relief of public disclosure of the private files of non-parties in their complaints, but arrived at the proposed process by secret negotiation with the custodians of the records. In most cases, the plaintiffs chose not to make the priests parties in their lawsuits. Where priests were named defendants, they refused to accept any out-of-court settlement, and plaintiffs chose to dismiss them without obtaining releases or consents from them.
Now all applicable statutes of limitation pertaining to plausible actions against the priests have expired, and the court can never acquire jurisdiction over them for the purpose of rendering a judgment that affects their property and privacy rights,
The plaintiffs failed to comply with the requirements of Code of Civil Procedure § 664 regarding petitioning the court to retain jurisdiction over the matter for the purpose of making a general reference, and virtually all of the cases have long since been dismissed, ending the court’s jurisdiction.
As discussed in detail below, Father Doe contends that the proposed / threatened transfer of his files will violate his Due Process rights and his Right to a Jury Trial, and will constitute court-sanctioned cruel and unusual punishment. It is also clear under Code of Civil Procedure § 389 that, as to the remedy of disclosing their private records, the priests are indispensable parties, and the court has a sua sponte duty to protect their interests. Merely providing an opportunity for them to present their statutory and Constitutional assertions of privilege to the contents of the files falls far short of protecting their substantive property, privacy, and reputational rights. The California Legislature has provided the priests with the right to a jury trial before their interests in their private papers can be impaired, and neither the plaintiffs nor this court can take that right away.
Furthermore, under California’s Constitution, it is the Legislature which has the power to create and define remedies, and there is no remedy in California law such as that the plaintiffs seek to have this court impose on the priests.
Likewise, to the extent there may be a public interest in identifying actual child molesters, the Legislature has already acted in a comprehensive way. There is a legislative plan that provides for public disclosure after the criminal conviction of a child molester, not upon the mere accusation by a private party whose motivation may be tainted by the pursuit of monetary gain. In California it is the People alone that have been entrusted with the terrible power to bran someone with a scarlet letter, and this court lacks the authority to create another procedure.
II. THE COURT LACKS SUBJECT MATTER JURISDICTION
TO MAKE ANY ORDER IN THE DISMISSED CASES
Aside from the Constitutional barriers to the remedy plaintiffs urge that are discussed above, the plaintiffs also utterly failed to comply with the mandatory procedures to empower the court to retain jurisdiction over cases that are dismissed.
The sole authority in California for the procedure to retain jurisdiction to carry out a settlement agreement is found in Code of Civil Procedure § 664. 6.
That provision reads:
“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”
It is clear that, in order for a court to retain jurisdiction to enforce terms of a settlement, there [1] must be a request by the parties themselves, and not merely by their attorneys, [2] it must be made to the court in a writing signed by the parties or by the parties orally in the presence of the court, and [3] it must be ordered by the court before the case is dismissed.
The California Supreme Court, in Levy v. Superior Court [1995] 10 Cal.4th 578, reviewed the history of Code of Civil Procedure § 664.6. It concluded, “[W]e conclude that the term “parties” as used in section 664.6 (“If parties to pending litigation stipulate ... for settlement of the case ...”) means the litigants themselves, and does not include their attorneys of record.”
Plaintiffs use the facts in very misleading ways to support their contention that this court retains jurisdiction to make the proposed order after dismissal of the cases. The truth is that the facts do not even come close to conferring jurisdiction on this court to make the requested order.
The statute requires the parties to make the request to retain jurisdiction, either in a writing signed by the parties or orally before the court. It is crystal-clear from the record and the exhibits accompanying the application that neither option occurred.
While there was a grand public proceeding for some attorneys to announce very general terms of a settlement in court on July 16, 2007, not a single party was asked if he consented to the “settlement.” Indeed, it is clear that many, perhaps most, of the plaintiffs were absent, as were most of the defendants. Nothing that occurred in that spectacle constituted a request by the parties “orally before the court” to retain jurisdiction to make the proposed order. In fact, the actual purpose of the hearing and the only order resulting from it served to vacate a trial date so that settlement terms could be finalized.
Furthermore, on July 16, 2007, many individual priests were still parties to the litigation, and not one of them consented to the “settlement.”
It is impossible for the court appearance of July 16, 2007, to constitute an adequate request to retain jurisdiction made by the parties orally before the court.
Surprisingly, the record makes it clear that no writing “signed by the parties” was ever filed with this court to request that the court retain jurisdiction, either.
That no request to retain jurisdiction “signed by the parties” was ever filed with the court is admitted by plaintiff’s liaison, Anthony de Marco, at the court’s hearing on July 18, 2008.
At page 36 of the Reporter’s Transcript:
MR. DE MARCO: The reason we did not file them [signed settlement agreements] as part of the record is there is an awful lot of private information that, if it's part of the public record, can get out.
Mr. De Marco again admits that no signed request was every submitted to the court in the declaration he filed in support of the application. In paragraph 8 of that declaration, he states that “I have in my possession the signatures of all parties to the settlement agreement. . . . {I}f requested by the Court each signature can be provided to the Court for In Camera Review.”
Interestingly, Mr. De Marco does not aver that the parties’ signatures are on the settlement agreement, only that he has the signatures of those people who were parties to the settlement agreement. There is no evidence that those signatures are on a request to the court to retain jurisdiction after dismissal.
Decisively, it is very clear that those signatures were never presented to the court before the cases were dismissed – indeed, it appears that they still have not been submitted to the court. With all professional respect, Mr. De Marco is not the court, and his secret files do not constitute court records. The only possible conclusion that can be made is that the parties never requested in a signed document that the court retain jurisdiction pursuant to § 664.6 before the cases were dismissed. That is true to this day, and the cases were dismissed more than a year ago.
There are only two ways to comply with the mandatory requirements of Code of Civil Procedure § 664.6: before the underlying cases are dismissed, the parties personally must make an oral request before the court, or the parties must file a signed request by them with the court.
It is questionable that Mr. De Marco actually has the signatures of all the parties on settlement agreements before the dismissals because until that time, some individual priests were parties. And those priests did not sign any such request.
“When there is a voluntary dismissal of an entire action, the court’s jurisdiction over the parties and the subject matter terminates.” Wackeen v. Malis [2002] 97 Cal. App,.4th 429, at 437.
It is too late for the parties to stipulate or otherwise try to create jurisdiction that has ended. Subject-matter jurisdiction “cannot be conferred by consent, waiver, or estoppel, the court cannot ‘retain’ jurisdiction it has lost.” Viejo Bancorp, Inc. v. Wood [1989] 217 Cal. App.3rd 200, at 207.
The twin cases of Wackeen, supra, and Hagan Engineering, Inc. v. Mills [2004] 115 Cal. App.4th 1004 deal with similar situations in which parties failed effectively to retain jurisdiction pursuant to Code of Civil Procedure § 664.6, and they are close enough to be controlling in this case.
The Second District Court of Appeal in Wackeen addressed exactly the 1993 amendment to § 664.6 that deals the procedure for a court to retain jurisdiction to enforce a settlement agreement after the dismissal of the underlying case. Said the Court:
“We hold that the effect of that amendment is to provide courts with continuing jurisdiction over parties and their litigation, for the purpose of enforcing their settlement agreement, despite a suit’s having been dismissed after the execution of the agreement. We further hold that in order for a court to assert such continuing jurisdiction, the parties’ request for retention of jurisdiction must satisfy the same formalities that courts and the Legislature have imposed generally on section 664.6 motions and the settlement agreements such motions seek to enforce. Like section 664.6 motions themselves, requests for retention of jurisdiction must be made prior to dismissal of the suit.” Moreover, like the settlement agreement itself, the request must be made orally before the court or in a signed writing, and it must be made by the parties, not by their attorneys, spouses or other such agents. If, after a suit has been dismissed, a party brings a section 664.6 motion for a judgment on a settlement agreement but cannot present to the court a request for retention of jurisdiction that meets all of these requirements, then enforcement of the agreement must be left to a separate lawsuit. “ [Emphasis added.]
The Court also discussed other requirements of a request to retain jurisdiction. Such a request “must be express, not implied from other language, and it must be clear and unambiguous.” It further noted that these formalities promote judicial economy – by preventing messy situations such as plaintiffs have created here – and they protect the litigants. “No litigant should be placed in the position of relying on representations, from an adversary or an attorney, that certain actions taken [or not taken], or certain language in a settlement agreement, will suffice for retention of personal and subject matter jurisdiction after a suit is dismissed, only to discover, after the dismissal agreement is signed and the dismissal has been accomplished, that someone has raised an issue regarding whether jurisdiction was actually retained.”
Lacking compliance with these formalities, “no matter how meritorious” a post-dismissal enforcement action may be, it cannot be accomplished pursuant to Code of Civil Procedure § 664.6.
Hagan Engineering, supra, is a yet more recent case with facts quite similar to those at issue here. In litigation regarding the theft of the trade secrets of potato sizers, the parties executed a settlement agreement which stated, “the parties hereto agree that the San Joaquin County Superior Court shall, notwithstanding entry of the Request for Dismissal required above, retain jurisdiction to enforce this Agreement pursuant to the provisions of section 664.6. It also specified that, among other things, in an enforcement action a party could obtain injunctive relief.
The parties failed to present the signed settlement agreement with those retention of jurisdiction provisions to the court before dismissing the cases. Later, one of the parties sought to enforce the settlement by means of a motion made under § 664.6, which the trial court granted. That order was appealed on the grounds that the parties had failed effectively to retain jurisdiction, and the cases had been dismissed, stripping the court of power over the subject matter.
Ruled the Court, “Absent a pending lawsuit, a court cannot issue judgments or orders. . . . A dismissal terminates an action.”
“The settlement agreement purporting to vest the trial court with retained jurisdiction after the dismissal was a nullity. Subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel.”
“In this case, Hagan did not make a request to the court to ‘retain jurisdiction,’ but instead, as required by the settlement, dismissed the action with prejudice.”
The Hagan court noted that the plaintiffs had other options available, such as [a] obtaining an order retaining jurisdiction before the dismissals were filed, [b] negotiating a conditional dismissal, [c] seeking to vacate an order based on Code of Civil Procedure § 473, and [d] filing a new lawsuit to enforce the settlement agreement. But under the facts of that case, the court had lost jurisdiction the moment the dismissals were filed, and without a request for retained jurisdiction that complied with the requirements of § 664.6, any attempt of the court to enforce the agreement was a nullity.
Plaintiffs did less in this case to retain jurisdiction according to the rule of law than was done in Hagan. As a result they put this court in the position that it now lacks jurisdiction to make the order requested by them.
The parties failed, by their own devices [the deliberate decision not to file anything signed by the parties in support of the aim of retaining jurisdiction], to satisfy the only means permitted by law for a court to retain jurisdiction to oversee a settlement agreement.
In any event, in this case, we have seen that the intended settlement procedure would violate myriad Constitutional rights of the priests, and the court cannot enforce those illegal provisions.
III. DUE PROCESS PROHIBITS GRANTING THE APPLICATION
In order starkly to understand how the proposed transfer of files is offensive to the Constitution, and not merely some sort of discovery-like matter involving determination of assertions of arcane privileges, an analogy will serve.
Instead of suing a church, assume the plaintiffs sued a bank for some tort committed by bank employees. To settle the case, the plaintiffs agreed with the bank that it would pay a sum of money as damages, and also transfer to the plaintiffs the contents of the personal bank accounts of the employees, even though the employees were not parties to the action and never agreed to such a result. Could any court sanction such a settlement? It would be a conspiracy to steal, pure and simple.
Although the priests’ rights involved in this collusive settlement are privacy and reputation, the offense to the Constitution is identical.
Both the United States and California Constitutions provide that the government, including this court, may not deprive anyone of life, liberty, or property without Due Process of law. At its most basic, that means affording the person whose interests are to be affected with notice and an opportunity to defend those interests.
Employees enjoy legally protected rights in the contents of their personnel records. While a corporate employer may not have a right of privacy from the California Constitution, Article I, Section 1, the individual employee does enjoy such a right as to the entire contents of his employee files. “[I]t is clear . . . personnel records and employment history are within the scope of the [privacy] protection provided by the state and federal Constitutions.” San Diego Trolley, Inc. v. Superior Court [2001] 87 Cal. App.4th 1083, at 1097; Board of Trustees of Stanford University v. Superior Court [1981] 119 Cal. App.3rd 516; Harding Lawson Associates v. Superior Court [1992] 10 Cal. App.4th 7; El Dorado Savings & Loan Assn. v. Superior Court [1987] 190 Cal.App.3d 342.
In many of these cases, the personnel files contain records pertaining to psychotherapy obtained by the employees, as well as ecclesiastical disciplinary information, medical records, financial information, and other extremely private and even intimate information concerning the employee, and sometimes, third persons who are not parties to this litigation. The relationship between a Roman Catholic priest and his employer, the Archdiocese in this case, is a uniquely close, all-encompassing one, in which the employer is also the direct spiritual superior of the employee, and between them there can be no secrets.
Disclosure of the information contained in these confidential employee files will clearly violate the Constitutional privacy rights of these objecting individuals. In Susan S. v. Israels [1997] 55 Cal. App.4th 1290, the court held that the unauthorized “reading and dissemination” of private files obtained by court process was a “serious invasion of the person's privacy.” And it was found to be actionable. Indeed, to the extent that the files contain medical information, including psychotherapy records, disclosure can be criminal. Civil Code § 56.36. This court cannot lawfully provide sanction for a tort or a crime.
The employer / custodian of these records has no rights in them, only a duty to protect them from disclosure. “[W]e begin with the general proposition that the custodian of materials protected by evidentiary privilege owes a duty to the holder of the privilege to claim the privilege and to take actions necessary to ensure that the materials are not disclosed improperly.” People v. Superior Court [Laff] [2001] 25 Cal.4th 703, at 713.
California adheres to the “primary rights” principles to define causes of action. One of those primary rights is the right to freedom of injury to reputation. Burdette v. Carrier Corp. [2008] 158 Cal. App.4th 1668; 4 Witkin, Cal.Procedure, Pleading § 23. The clear goal of the plaintiffs in attempting to finesse a post-settlement disclosure of the personnel records of these objecting non-parties is to destroy their reputations and publicly brand them as child molesters without any Due Process. Despite the plaintiffs lurid discussion of the “compelling need” to brand the priests as sexual abusers, nothing on those lines was ever proved in these cases. They were all settled without trial, and the parties, including plaintiffs, agreed that the allegations were expressly denied.
Thus, these objecting individuals have two important interests that will be seriously damaged or destroyed by the process of forwarding their files for public disclosure: their Constitutionally protected privacy rights will be violated, and their reputations will be harmed.
The right of privacy is equivalent to a property right. Vinson v. Superior Court [2002] 103 Cal. App.4th 409, at 418.
There is a general principle that “the rights of a person cannot be affected by a suit to which he is a stranger.” Whitney v. Higgins [1858] 10 Cal. 547. See also . Hanson v. Denckla [1958] 357 U.S. 235; Mallow v. Hinde [1827] 1 Ohio Fed. Dec. 150.
A judgment cannot be amended to affect the rights of a person not under the court’s jurisdiction. Boyer v. Jensen [2005] 129 Cal. App.4 62.th
Leaving aside the fact that there is no statutory or decisional authority supporting the relief sought, publicly branding a person to be a child molester, the plaintiffs did not bring the affected parties, the priests, before the court, the priests never had a chance
To defend themselves, and the plaintiffs never proved anything against the priests. In short, there has been an utter absence of Due Process as it relates to the priests’ private employment records.
In Ferraro v. Camarlinghi [2008] 161 Cal. App.4th 509, parties to a probate contest sought to settle the case – and inveigled a court to sign such an order – by agreement of all but one of the legal heirs. That heir was excluded by the parties, and later challenged the judgment. It presented a stark Due Process issue, just as the proposed order does herein.
In reversing, the Court of Appeal said, “As for the general powers of a superior court, we are quite satisfied that no judge sitting in a general civil department would dream of issuing the kind of order here at issue under the circumstances shown by this record. It is only the smoke and mirrors conjured by counsel through invocation of the court’s probate powersaw that could have induced Judge Levinger to make such an order.” The Court held that the trial court acted ultra vires – thus, in violation of the Constitution that granted it power – when it made an order affecting the rights of a person who was not under its jurisdiction and without affording full Due Process to that person. This court should not let plaintiffs’ “smoke and mirrors” place it in the same lonely place.
Another recent case, Humphries v. County of Los Angeles [2008] 547 Fed.3rd 1117 held that California’s requirement that counties maintain a database of information about “child abusers” violated the Due Process Clause because it permitted unproven information to be included in the database without a process for its truthfulness to be challenged. Here the matter is worse, because there is no public oversight at all, simply a press by private individuals to destroy lives with allegations that are all denied.
The church employers have no right to agree to the disclosure of the employment records of the non-party priests. The agreement is illegal, it ignores the Constitutional Due Process rights of the priests, and cannot be enforced by any court. On the contrary, the rights the court must enforce and protect are the Due Process rights of the priests.
IV. THE PRIESTS’ RIGHT TO A JURY TRIAL PROHIBITS
GRANTING THE APPLICATION
California Constitution Article I, § 16 provides the right to a jury trial in civil and criminal cases. Denial of that right by any court exceeds its jurisdiction. Knight v. Superior Court [1950] 95 Cal. App.2nd 838. The right to a jury trial attaches to suits alleging torts as well as to forfeiture proceedings. Rowe v. Superior Court [1993] 15 Cal. App.4th 1711; Windsor Square Homeowners Association v. Citation Homes [1997] 54 Cal. App.4th 547; People v. $17,522.08 United States Currency [2006] 142 Cal. App.4th 1076.
Indeed, the landmark case of People v. Burnick [1975] 14 Cal.3rd 306 held that where the object of a civil proceeding will expose the defendant to serious social stigma, it triggers the protections of a criminal prosecution, including proof beyond a reasonable doubt and a unanimous verdict. That rule has been followed in many subsequent cases where the inevitable result of a case would be social stigma.
Far from affording the priests the right to a jury trial, the plaintiffs have done everything possible to prevent the priests from defending their rights and legal interests.
They omitted them as defendants in the action, with few exceptions [and those exceptions are of no moment, since in every single case the plaintiffs agreed to dismiss the few priest-defendants in order to reach settlement with the deep pocket institutional defendants and insurance carriers]. They added the “relief” of disclosing the priests’ private files in secret negotiations with the custodians of the records, and reached an agreement to violate the private contents of those files without the consent of the people whose property they are, the priests.
If such a remedy exists – and no authority has been provided to support it – it cannot be ordered unless the priests whose files it directly affects have had their jury trials. Nothing has been proved against them in this court, and none of them have agreed to have their privacy violated and reputations smeared.
V. THE APPLICATION MUST BE DENIED BECAUSE
PLAINTIFFS FAILED TO JOIN INDISPENSABLE PARTIES
Code of Civil Procedure § 389 provides that a person is “indispensable” to litigation when that person “claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may . . . as a practical matter impair or impede his ability to protect that interest.”
The disposition of this action by the process of exposing these individual priest-objectors to disclosure of their confidential personnel records will definitely “impede or impair” their privacy and reputational interests.
If the plaintiffs wanted to obtain relief from this court that destroyed these interests of these individuals, they should have asked for that relief from the beginning, and made the individual priest-employees parties, so they could defend their rights. But plaintiffs chose not to do that, and cannot obtain such relief that directly violates the rights of these priest-employees without providing them the opportunity to defend their rights. Failure to join indispensable parties so that they may defend their interests violates the Due Process of those persons. Shields v. Barrow [1854] 58 U.S. 129; Fletcher Aircraft Co. v. Bond [1977, D.C. Cal.] 77 F.R.D. 47.
But plaintiffs cannot now do that, because the applicable statute of limitations has lapsed as to all of these individuals. Code of Civil Procedure § 340.1; Sierra Club, Inc. v. California Coastal Commission [1979] 95 Cal. App.3 495. rd
The very recent case of Tracy Press, Inc. v. Superior Court [2008] 164 Cal. App.4 1290 is controlling in this context. Tracy Press made a Public Records Act request on the City of Tracy, California, for emails, including those from a city councilwoman using her personal computer. The request was denied, and Tracy Press filed suit against the city and the councilwoman, which it lost. It then sought appellate relief against the city, apparently inadvertently omitting to include the councilwoman. By the time Tracy Press realized its error, the statute of limitations for seeking relief had passed, and the councilwoman could not be added. The question remaining was whether she was an indispensable party, and if so, whether the case had to be dismissed for failure to join an indispensable party. th
The Court of Appeal – which raised the issue sua sponte on appeal – decided the councilwoman was clearly indispensable, and that the case had to be dismissed. Said the court, citing precedent, “The controlling test for determining whether a person is an indispensable party is, ‘Where the plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined, that third person is an indispensable party.’ More recently, the same rule is stated, ‘A person is an indispensable party if his or her rights must necessarily be affected by the judgment.’”
“The order that Tracy Press seeks requiring Tucker to give Tracy Press access to writings she possesses personally would necessarily affect her rights.” Likewise, giving plaintiffs, a referee, or the public access to the priests’ private employee records, deliberately destroying their reputations in the process, will necessarily affect their rights. Intellectual integrity compels recognizing that fact; nothing could be clearer.
The court has an independent duty to raise the issue of an absent indispensable party sua sponte. Francis v. United Technologies Corp. [1978] 458 Fed. Supp. 84.
Plaintiffs have attempted to manipulate this court into being their unwitting instrument for violating the important rights of the non-party employees, but their stratagem is clearly prohibited by statute and important Constitutional principles.
Without jurisdiction over the priest-employees whose private files and reputations are at risk, this court may not enter an order that might have the effect of jeopardizing the rights of these objecting individuals.
It is important and equitable to note that it is the plaintiffs themselves and their deliberate strategy of excluding the priests from the litigation that led them into this legal dead-end.
Denial of the file transfer application is compelled by law.
VI. THE PUBLIC DISCLOSURE PROCESS IS PUNITIVE
AND CONSTITUTES ILLEGAL VIGILANTE JUSTICE
Having taken their monetary settlement, plaintiffs now seek to abuse the court’s power to carry out private, vigilante justice, taking sensitive private information from private files and publicizing it to shame the “accused” and stigmatize them in a most horrible way. The process has none of the safeguards of the Constitution that attaches to the penal process – the accusers are anonymous, protected by “Doe” fictitious names, there has been no confrontation, no cross-examination by the accused, no impartial prosecutor sworn to do justice, no finding that the lurid accusations are true by a jury or any other impartial fact finder. In fact, the “accused” have been entirely shut out of the process intended to ruin them. Plaintiffs have created a private “Star Chamber,” and they now ask the court’s blessing and power to operate it.
Public shaming was a kind of criminal punishment in colonial times, one long since determined to violate the Constitution and abandoned in the United States. Fredenburg v. City of Fremont [2004] 119 Cal. App.4th 408; Smith v. Doe [2003] 538 U. S. 84. In Smith, the Supreme Court reviewed the history of the past punishment of shaming, at pages 97-98, where the intent was to make the offenders suffer “permanent stigmas, which in effect cast the person out of the community.” Illegal today, shaming was recognized as punishment for a crime, and required the full panoply of Constitutional criminal procedural rights before it could be imposed.
“Public shaming has long been viewed as a form of punishment.” People v. Castellanos [1999] 21 Cal.4th 785. It affects a liberty interest protected by the Due Process Clause. Levenstein v. Salafsky [2005, 7th cca] 414 Fed.3rd 767. “Indivudals have a strong interest in not being associated unwarrantedly with alleged criminal activity.” Stern v. Federal Bureau of Investigation [USApp DC, 1984] 737 Fed.2nd 84, at 91-92.
Likewise, our legal history is replete with cases of vigilante justice, where an accused was forcibly banished from a community without trial. That process, too, is illegal. The Yankee, et al. v. Gallagher [1859] 1 McAll. 467, 30 Fed.Cases 781; Duane v. Goodall [1863] 7 Fed. Cases 1132; Roza v. Smith [1895] 65 Fed. 592. All of those cases held that private punishment of a person was illegal and violated the victim’s constitutional rights. More than a century ago, the tactics attempted here were uniformly rejected in American jurisprudence.
This court must reject the plaintiffs effort to use judicial power to act as private prosecutors and carry out scores of virtual lynchings with the blessing of the power and reputation of the bench. American Constitutional law has no place for this process.
VII. THE PROCESS VIOLATES CONSTITUTIONAL
SEPARATION OF POWERS
California Constitution Article III, § 3 reads:
“The powers of state government are legislative executive, and judicial. Persons charged with the exercise of one power may not exercise either of the other powers except as permitted by this Constitution.”
There is no known private remedy such as plaintiffs seek to have this court impose in California law. It is the exclusive power of the Legislature to “define crimes and fix penalties.” Manduley v. Superior Court [2002] 27 Cal.4th 537. It is likewise the power of the Legislature to define civil remedies and relief available. Alch v. Superior
Court [2004] 122 Cal. App.4th 339. For this court to order a remedy that does not exist will constitute an additional violation of the Separation of Powers doctrine.
We have already established that the proposed process constitutes the punishment of shaming.
“In California, all criminal prosecutions are conducted in the name of the People of the State of California and by their authority. [Government Code § 100.] California law does not authorize private prosecutions.” People v. Eubanks [1997] 14 Cal.4th 580.
“The importance, to the public as well as to individuals suspected or accused of crimes, that these discretionary functions be exercised ‘with the highest degree of integrity and impartiality, and with the appearance thereof’ [citation omitted] cannot easily be overstated. The public prosecutor ‘is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.’” People v. Eubanks, supra, at 589.
Thus, it is not the place of the private plaintiffs to inflict punishment on these untried priests, and for this court to permit that process will constitute a violation of the Constitutional principle of Separation of Powers.
In fact, before most the cases in these Coordinated Proceedings were filed, the District Attorney of Los Angeles and the Grand Jury conducted extensive investigation of many of these same priests. Some were charged, and a handful were convicted. Those who were convicted became subject to the only legal process for public disclosure of sex offenders in California, under the sex offender registration statute, part of which – so-called Megan’s Law – establishes a publicly accessible database of convicted sex offenders. Penal Code § 290 et seq. Unlike the process pushed by plaintiffs here, the state’s database program was established by the Legislature after due deliberation, and comes into play after the Constitutionally required safeguards of public indictment, public trial, confrontation and cross-examination of the accuser, representation by an attorney, conviction by a unanimous jury after proof beyond a reasonable doubt, and public sentencing. Even then the information available to the public is very limited; it does not even include the convict’s home address, let alone his psychotherapy history. And breach of these statutory protections itself is a crime under the scheme enacted by the Legislature.
This court has no authority to fashion the remedy that plaintiffs seek.
VIII. A PROCESS ALLOWING THE PRIESTS
TO ASSERT PRIVILEGES BEFORE PUBLIC DISCLOSURE IS INADEQUATE
The entire proposal to invade and publicize the private records of non-parties violates those individuals Due Process Rights, Right to Trial by Jury, the statute concerning indispensable parties, Separation of Powers, and other Constitutional and statutory provisions.
To modify the settlement agreement to permit the priests at some point to assert claims of privilege is wholly inadequate and beyond the court’s jurisdiction.
It should obviously be a futility, as well. The basic Constitutional Right of Privacy covers every file and every page in those files, and it belongs to the priest-employee not the custodian of the files. El Dorado Savings and Loan Association v. Superior Court [1987] 190 Cal. App.3rd 342.
The Right of Privacy can only be overcome by a showing of a recognized compelling public need. In civil discovery, while litigation is pending, ascertainment of the truth often suffices to open personnel files for the purpose of litigation. Board of Trustees of Stanford University v. Superior Court [1981] 119 Cal. App.3rd 516.
But this litigation has ended, there are no trials now looming, and there is no compelling public need to invade the files. Even if the court had no Constitutional barriers to the reference process, it would be futile to make the reference when the case is in the posture it is. There is no legal purpose to review the privileged files. To make a reference where there is no legal purpose, to permit further review of private files, exceeds this court’s jurisdiction.
IX. THE PROCESS VIOLATES THE DOCTRINE OF RIPENESS
As to the proposed remedy of referring the private files of non-party priests for public disclosure, the Constitutional doctrine of ripeness prohibits it.
The recent case of O'Grady v. Superior Court [2006] 139 Cal. App.4 1423 discussed these important principles. “thThe doctrine arises from several considerations. The requirement of a genuine controversy reflects the desirability of avoiding not only collusive litigation, but cases in which one or both parties lack a real motive to diligently contest the issues. If the competing considerations are not adequately explored and presented, the court may reach a less-than-circumspect result, potentially sending the law down a wrong precedential trail.”
In People ex rel. Lynch v. Superior Court [1970] 1 Cal.3rd 910, the Attorney General filed suit to declare rights under a prejudgment garnishment act – but the suit failed to include as a party anyone who actually was subject to such garnishment. The
Supreme Court characterized the matter as an effort to obtain an “advisory opinion,” in violation of the ripeness doctrine. That rule was followed recently in Phelps v. State Water Resources Control Bd. [2007] 157 Cal. App.4 89. Similarly here, there is no party who agreed to the reference process whose rights are actually affected by it – and thus, the matter is not “ripe” and suitable for this court to enforce. th
In this case, it cannot be said that the Archbishop, having neither privacy nor reputational rights at stake, lacks the motive strenuously to protect those rights.1 “Throwing in” the disclosure of these confidential personnel records to satisfy plaintiffs’ demands has no cost to the settling entity, but it means everything to the individuals whose rights will be violated.
The Constitution prohibits this court from enforcing a collusive settlement agreement that did not result from a truly adverse process over the rights at issue.
X. PRIESTS OBJECT TO DISCLOSURE OF THIRD
PARTY SUBPOENA RESPONSES TO REFEREE
Objections to the disclosure of those items listed in Exhibit E of the Court’s Tentative Order re Purportedly Sealed and Lodged Documents were filed with this court on November 26, 2008. We ask the court to take judicial notice of those objections. We have attached a copy of that pleading as an exhibit to this brief (Exhibit A).
1 Indeed, the plaintiffs and the Archdiocese “have priors” in this regard. In December, 2004, in connection with this same litigation, plaintiffs and the Archdiocese agreed to disclose publicly mediation “proffers” derived from the contents of many of the same personnel files at issue here. The appellate opinion of Doe 1 v. Superior Court [2005] 157 Cal. App.4th 89 prevented them from violating the rights of the priest-employees then.
XI. CONCLUSION
The process that the parties agreed to was never legal, and never within the court’s Constitutional authority to compel. It affronts the court’s dignity for plaintiffs to have made the application.
Plaintiffs utterly failed effectively to retain jurisdiction, and now ask the court to ignore their own failings and make an order that is wrong, unconstitutional, and ultra vires on multiple bases.
Code of Civil Procedure § 389 provides that a court can modify relief to protect the rights of an absent indispensable party, and the court should do that by striking the provision to invade the private employee files of third persons, the non-party priests.
February 9, 2009 Respectfully submitted,
GUZIN & STEIER
Donald H. Steier
Specially Appearing as Attorney for
Father Doe and priests similarly situated
EXHIBIT A
OBJECTION TO TENTATIVE ORDER re
DISCLOSURE OF THIRD PARTY
SUBPOENA RESPONSES TO
DISCOVERY REFEREE
(FILED NOVEMBER 26, 2008)
DONALD H. STEIER [SBN 58391]
GUZIN & STEIER
4525 WILSHIRE BOULEVARD
SUITE 201
LOS ANGELES, CA 90010
[323] 932-1600 / Fax [323] 932-1873
Attorney for Certain Priests Whose Interests Will Be Impaired
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES
COORDINATED PROCEEDING
SPECIAL TITLE [Rule 1550 (b)]
The Clergy Cases JUDICIAL COUNCIL COORDINATION PROCEEDING NOS. 4286
Trial Coordinating Judge:
Hon. Emily Elias
Department 308
OBJECTION TO TENTATIVE ORDER re DISCLOSURE OF THIRD PARTY SUBPOENA RESPONSES TO DISCOVERY REFEREE
Date: December 10, 2008
Time: 10:00 a.m.
DOCUMENTS1, and JOIN in the objections to that Tentative Order filed by Defendant Doe 1.
The aforenamed Objecting Persons make their objections as follows:
1. The disclosure is not made pursuant to discovery procedures as provided by the Legislature.
2. The court lacks retained jurisdiction to make such an order.
3. “All the parties” never requested the court in writing or orally in court to retain jurisdiction.
4. There was no hearing for the court to determine whether to retain jurisdiction.
5. There is no order signed by the court retaining jurisdiction pursuant to the provisions of Code of Civil Procedure § 664.6.
6. There is no application for an order appointing a referee as provided in the purported Settlement Agreement.
7. There is no order appointing a referee to whom to disclose any documents.
8. The process violates the Due Process Rights of the non-party alleged perpetrators who did not consent to the settlement agreement.
1 Although the court ordered the tentative ruling to be posted by November 5, 2008, such posting was not made until November 14, 2008.
9. The process violates the Right to a Jury Trial of the non-party alleged perpetrators who did not consent to the settlement agreement.
10. The order is void because indispensable parties have not been joined pursuant to the requirements of Code of Civil Procedure § 389.
11. The order provides state sanction to the illegal act of shaming, in violation of the prohibition against cruel and unusual punishment of the United States Constitution, and against cruel or unusual punishment of the California Constitution.
12. The order violates the Constitutional doctrine of separation of powers and infringes on the executive’s exclusive right to prosecute crime and the legislature’s exclusive right to determine punishment for crimes and civil remedies.
13. The order violates Penal Code § 924 which prohibits disclosure of grand jury evidence.
14. The order constitutes an abuse of the compulsory process of the court by changing the purpose of subpoenas that were issued and obeyed by third parties who never consented to such misuse of private and confidential documents.
15. The order constitutes an abuse of the discovery procedures created and enumerated by the legislature.
16. The order is the result of a collusive settlement agreement between parties that adversely affects the rights of third parties and public agencies that never consented to it.
17. The order fails to require notice of the proposed disclosure to the parties who delivered the documents to court under subpoenas issued for entirely different purposes. Notice of the tentative order has not been given to those third parties and law enforcement agencies.
18. The documents are protected from disclosure by Evidence Code § 1040 et seq. [Government Information Privilege].
19. The order violates the provisions of Government Code § 6254 et seq.
20. The documents are protected from disclosure by Penal Code § 293 [Right of Victim to Remain Anonymous].
21. The documents are protected from disclosure by Penal Code § 1054.6.
22. The documents are protected from disclosure by Penal Code § 11076 et seq. [Criminal information may only be released to government agencies pursuant to statute.]
23. The documents are protected from disclosure by Penal Code § 11105 et seq. [Criminal history information may only be released to authorized agencies.]
24. The order is illegal and the documents are protected from disclosure by Penal Code § 11140 [It is a crime to disclose law enforcement information except pursuant to statute.].
25. The order is illegal and the documents are protected from disclosure by Penal Code § 11143 [It is a misdemeanor to receive law enforcement records without authorization.].
26. The order is illegal and the documents are protected from disclosure by Penal Code § 11167.5 [Crime to disclose mandatory Report of Suspected Child Abuse.].
27. The documents are protected from disclosure by Penal Code § 13125 [Defining contents of confidential law enforcement records.].
28. The order is illegal and the documents are protected from disclosure by Penal Code § 13201 [Access to law enforcement information restricted by statute.].
29. The order is illegal and the documents are protected from disclosure by Penal Code § 13300 et seq. [Disclosure of law enforcement information restricted to enumerated government agencies.
30. The order is illegal and the documents are protected from disclosure by Penal Code § 13302 and 13303 [Crime for authorized person to disclose to unauthorized person.].
31. The order is illegal and the documents are protected from disclosure by Penal Code § 13304 [Crime for unauthorized person to receive law enforcement information.].
32. The order does not comply with the provisions of Code of Civil Procedure § 1985.3 and § 1985.6
33. The order violates the Right of Privacy established in California Constitution Article I, Section 1.
34. The order violates the Right to be Free of Unreasonable Searches and Seizures as provided in the Fourth Amendment to the United States Constitution.
35. The documents are protected from disclosure by the Privilege Against Self-Incrimination as provided in the Fifth Amendment to the United States Constitution.
36. The documents are protected from disclosure by the Attorney-Client Privilege [Evidence Code 950 et seq.].
37. The documents are protected from disclosure by the Work Product Privilege [Code of Civil Procedure 2018].
38. The documents are protected from disclosure by the Priest-Penitent Privilege [Evidence Code 1030 et seq.].
39. The documents are protected from disclosure by the Sexual Assault Victim-Counselor Privilege [Evidence Code 1035 et seq.].
40. The documents are protected from disclosure by the Right to Free Exercise of Religion as established by the First Amendment to the United States Constitution.
41. The documents are protected from disclosure by the Therapist-Patient Privilege [Evidence Code 1010 et seq.].
42. The documents are protected from disclosure by the Physician-Patient Privilege [Evidence Code 990 et seq.].
43. The documents are protected from disclosure by the California Confidentiality of Medical Information Act [Civil Code 56.20].
44. The documents are protected from disclosure by the Settlement Privilege [Evidence Code 1152].
45. The documents are protected from disclosure by the Mediation Privilege [California Constitution, Article I, Section 1, and Evidence Code 1115 et seq.].
46. The proposed order, in particular Footnote 6, constitutes an illegal modification by the court of the Settlement Agreement of which the Objecting Parties are third party beneficiaries, and to which they do not consent.
The Objecting Persons also submit that the court has a sua sponte duty to protect the documents from illegal disclosure, to assert privileges, and to prevent abuse of the court’s compulsory process as to all absent third persons described in those documents, and to provide notice of the procedure to the persons affected and parties that submitted the documents under discovery subpoenas
26 November 2008 Respectfully submitted,
GUZIN & STEIER
DONALD H. STEIER
Attorney for Objecting Persons
****
Posted by Kay Ebeling, Producer, City of Angels