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	Church Objection to Transfer of Personnel Files (on Behalf of 31 Priests) Says: No One Agreed to Release of Private Papers Belonging to the Pope City of Angels October 1, 2008 http://cityofangels13.blogspot.com/ Objection brief by church attorneys is copy and pasted here at City of Angels Network below. List of 31 priests is just before "Conclusion." Quotable quotes: “These priests are presumptive child molesters. Not a single one of the objecting individuals consented to a process where a retired judge reviewed their files. 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.” So is the relationship spritual or business, or are the crimes of pedophile priests part of whichever relationship is convenient for the Los Angeles Archdiocese at the moment. Apparently Cardinal Roger Mahony knows everything these priests did, and he knew it from the time they committed the crimes. Why the US Attorney or local DA does not cease these documents, I do not understand. More quotable quotes: “Two important interests that will be seriously damaged or destroyed by the process of forwarding their files for public disclosure after the cases have been dismissed: their Constitutionally protected privacy rights will be violated, and their reputations will be harmed.” “While the plaintiffs pursued monetary damages, these (31) individuals had no interest in the outcome of that litigation. (Then) settlement documents sought to reach farther than monetary damages. "The cases have been dismissed," and the proposed process "threatens public disclosure of employee records.” “Hearing-Oral Arguments” on this and similar filings, October 8th in Dept. 308, the Superior Court on South Commonwealth Ave. Here is the objection in full filed by Donald Steier, who has testified in Supreme Court of CA that he is paid by the Archdiocese of Los Angeles. OBJECTION TO PROPOSED TRANSFER AND RELEASE OF EMPLOYEE RECORDS AND ASSERTION OF CONSTITUTIONAL AND STATUTORY PRIVILEGES AND RIGHTS TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: The individuals listed below, none of whom are parties to the settlement and release executed between Plaintiffs and Defendants in these coordinated actions, by and through their attorney Donald H. Steier, appearing specially, hereby OBJECT to the proposed transfer of their personnel files and employee records to Justice Panelli or any other judicial officer or referee for the purpose of eventual public disclosure of any part of the contents. This objection is made on the following grounds: 1. THESE OBJECTING NON-PARTIES ARE “INDISPENSABLE PARTIES” WHO ARE NOT SUBJECT TO THE JURISDICTION OF THIS COURT. In this historic litigation, the Plaintiffs pursued monetary damages from various religious institutions that employed individuals as clergy. With few exceptions, the individual alleged tort feasors were never parties to the litigation, but were referred to as non-party “Perpetrators.”1 All of the persons objecting herein were alleged perpetrators in the litigation. While the plaintiffs pursued monetary damages, these individuals had no interest in the outcome of the litigation. However, the settlement documents sought to reach farther than monetary damages. Although the plaintiffs have accepted monetary payment and the cases have been dismissed, the plaintiffs and religious entities-defendant agreed to create a process that threatens public disclosure of the employee records of the objecting individuals herein, as well as other non-party priests. The plaintiffs have contended they must disclose the contents of these private files to notify the public that these priests are presumptive child molesters. Not a single one of the objecting individuals consented to a process conferring jurisdiction to permit a retired judge to review their files. All employees enjoy legally protected rights in the contents of their personnel records. ***************** "Now, after all the cases have been dismissed, the plaintiffs seek to exact vigilante justice... ***************** 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, other 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. ***************** "Simply put, the Panelli process part of the settlement agreement was made by parties who had no right." ***************** 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] --- Cal. App.4th ___, WL 152706; 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 further destroy their reputations. 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 after the cases have been dismissed: their Constitutionally protected privacy rights will be violated, and their reputations will be harmed. In contrast to these damages, the settling entity-defendants, as custodian of records, have no rights at risk in the process – the contents of the files relate only to the individual priest-employees, and only those priests will have their privacy rights invaded and personal reputations damaged. The Archbishop, as employer and custodian of these confidential records belonging to the priest-employees, has an affirmative legal duty, in fact – to defend the contents of these files from disclosure. People v. Superior Court [Laff] [2001] 25 Cal.4th 703 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 objectors to disclosure of their confidential personnel records will definitely “impede or impair” their privacy and reputational interests. 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 join them, 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.3rd 495. With regard to those individuals not included in this objection, but similarly situated, 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. ***************** No one “agreed to settle a dispute by releasing private papers belonging to the Pope.” ***************** 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. Inasmuch as all of the cases at issue have been dismissed, the court is without jurisdiction over the priest-employees whose private files and reputations are at risk, and in their absence may not enter an order that might have the effect of jeopardizing the rights of these objecting and “indispensable” individuals. 2. DUE PROCESS PROHIBITS THE COURT FROM MAKING ORDERS AFFECTING THE INTERESTS OF PERSONS NOT UNDER ITS JURISDICTION. Closely akin to the concept of “indispensable parties” is the more fundamental protection of Due Process, part of Anglo-American jurisprudence since the Magna Carta. A court cannot adjudicate directly upon a person's rights without such person being either actually or constructively before the court. 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.4th 62. As noted above, it is clear that none of these objecting priest-employees is, or can be, under the jurisdiction of this court. For the court to make an order that will affect their rights would be the most basic violation of the Due Process Clauses of the United States and California Constitutions. 3. THE PLAINTIFFS AND ENTITY-DEFENDANTS HAD NO RIGHT TO ENTER INTO A SETTLEMENT THAT SACRIFICES THE LEGALLY PROTECTED RIGHTS OF OTHERS Another way in which the proposed Panelli process provisions of the release agreements violates basic principles of law is that it does not involve a ripe “case or controversy” between adverse parties. It would be no different if one of these objecting non-parties agreed to settle a dispute by releasing private papers belonging to the Pope – they would have no right to do so. Neither did the Archbishop have a right to satisfy the plaintiffs by agreeing to public disclosure of the confidential employee files protected by the Right of Privacy of these priest-employees. The recent case of O'Grady v. Superior Court [2006] 139 Cal. App.4th 1423 discussed these important principles. “The 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.4th 89. Similarly here, there is no party who agreed to the proposed Panelli process whose rights are actually affected by it – and thus, the matter is not “ripe” and suitable for this court to enforce. ***************** "The Archbishop (Mahony) threw in disclosure of these confidential personnel records to satisfy plaintiffs’ demands" ***************** In this case, the Archbishop, having neither privacy nor reputational rights at stake, lacks the motive to protect those rights.2 “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 actually will be violated. Simply put, the Panelli process part of the settlement agreement was made by parties who had no right to agree to any disposition that destroyed the privacy rights and reputations of these non-party objecting individuals. In Constitutional terms, it could be said to be a collusive settlement or a matter that is not ripe – but in any event, it cannot be permitted. 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 among themselves 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 because the priests had not agreed to the process. 4. THE CONTENTS OF THE FILES ARE PROTECTED FROM DISCLOSURE BY THE RIGHTS OF PRIVACY AND OTHER PARTICULAR PRIVILEGES. The objecting non-party individuals further hereby assert the following Constitutional Rights and Constitutional and statutory privileges concerning the contents of the files, and thereby object to their disclosure: Right of Privacy established in California Constitution, Article I, Section 1, Therapist-Patient Privilege [Evidence Code 1010 et seq.] Right to be Free of Unreasonable Searches and Seizures as provided in the Fourth Amendment to the United States Constitution Privilege Against Self-Incrimination as provided in the Fifth Amendment to the United States Constitution. Attorney-Client Privilege [Evidence Code 950 et seq.] Work Product Privilege [Code of Civil Procedure 2018] Priest-Penitent Privilege [Evidence Code 1030 et seq.] Sexual Assault Victim-Counselor Privilege [Evidence Code 1035 et seq.] Right to Free Exercise of Religion as established by the First Amendment to the United States Constitution Physician-Patient Privilege [Evidence Code 990 et seq.] California Confidentiality of Medical Information Act [Civil Code 56.20] Settlement Privilege [Evidence Code 1152] Mediation Privilege [California Constitution, Article I, Section 1, and Evidence Code 1115 et seq.]. These individuals reserve the right to assert additional privileges in the event that they discover that the contents of their files include documents protected by such other privileges. The foregoing objections are made on behalf of the following individuals: MICHAEL BAKER FRANKLIN BUCKMAN MICHAEL CARROLL LYNN CAFFOE SEAN CRONIN JOHN DAWSON EDWARD DOBER DONALD FARMER WALTER FERNANDO DAVID GRANADINO RODERIC GUERRINI BRIAN HANLEY RICHARD HENRY STEPHEN HERNANDEZ PAUL KREUTZER RICHARD LOOMIS RICHARD MARTINI GEORGE MILLER DONAL O’CONNOR SAMUEL ORELLANA MICHAEL PECHARICH JOSEPH PINA DONALD ROEMER MICHAEL ROBERT GEORGE RUCKER MANUEL SANCHEZ CARL SUTPHIN MICHAEL TERRA FRANCISCO VITELLA MICHAEL WEMPE G. PATRICK ZIEMANN CONCLUSION ************ The plaintiffs and entity-defendants have agreed between themselves... ****************************** The plaintiffs and entity-defendants have agreed between themselves to refer these individuals’ employee records to Justice Panelli for possible disclosure of their contents to the public. The plaintiffs, having signed releases in which liability by the alleged perpetrators is expressly denied, now, after all the cases have been dismissed, the plaintiffs seek to exact vigilante justice with the court’s help, and publicly brand all of the priests with infamy without the Benefit of any trials. No matter what the reason or purpose for such a process, it cannot be undertaken without impairing and prejudicing – destroying, in fact – the legal rights these objecting individuals have in their own employee records. Since all of the cases involving the objecting individuals have now been dismissed, and none of these individuals stipulated to confer jurisdiction for the proposed Panelli process, this court should not permit the transfer of files for any objecting person whose rights will be impacted by the relief sought by the plaintiffs. January 2008 Respectfully submitted, GUZIN & STEIER DONALD H. STEIER Attorney for Non-Party Objectors DONALD H. STEIER [SBN 58391] GUZIN & STEIER 4525 WILSHIRE BOULEVARD SUITE 201 LOS ANGELES, CA 90010 [323] 932-1600 / Fax [323] 932-1873 Special Appearance by Attorney for Non-Parties 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 [CCW]
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