What L.A. plaintiffs are up against re release of perp priest personnel files

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"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

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Posted by Kay Ebeling, Producer, City of Angels