By Kay Ebeling
City of Angels
October 18, 2009
http://cityofangels5.blogspot.com/2009/10/church-battles-veterans-who-come-off.html
“They may as well not have the Soldiers and Sailors Act at all, by your way of thinking,” said Judge Emilie Elias to Attorneys for the Archdioceses in both Los Angeles and San Diego, during a hearing last month in L.A. “You're saying the federal law that protects service members is meaningless?”
Lee Potts appearing for Cardinal Mahony, sputtered, “I'm not, I'm - I'm - uh- well over the years many provisions have been considered, for example, go to the third paragraph down, sub section G. We have this new use of the word computing.”
Military personnel returning from years of war now find themselves battling the Catholic Church when trying to pursue personal justice. The hearing September 22nd in L.A. Superior Court was on demurrers by Bishops in Los Angeles and San Diego against plaintiffs just come off active duty now filing lawsuits against the church for pedophilia. The battle in California today is similar to a fight the Church fought and lost in February of this year in Minnesota.
In many cases, service men and women have been overseas fighting wars since before the Catholic clergy pedophile epidemic burst out in the media across the nation with the Boston cases in 2002. Now those returning vets are taking advantage of a long standing entitlement for active duty personnel: the clock stops ticking on legal matters, and does not start up again until you go off active duty.
There’s good reason for military officers to have this right. Filing a lawsuit against the Catholic Church in the middle of your active duty status would destroy your career. A retired Naval Commander who is also an adult victim of pedophile priest explained to City of Angels:
“I had a top secret clearance, if I’d filed a lawsuit at the time I was on active duty, I would not have been able to do my job.
“If the military perceives any sign of weakness, especially in the officer ranks, any discriminator can knock you out of the running. The military mindset and culture right now is very unforgiving to anybody that seems to be showing any signs of weakness. Filing a lawsuit like this against the Church while on active duty would preclude you from getting the jobs you’d need to continue to move up in rank.”
Still, just when you thought the Catholic Church and its attorneys had been as audacious in the priest molestation cases as human limits would allow, there were two lawyers in court last month, one from San Diego, the other from L.A., fighting returning veterans who are now filing lawsuits based on the 2003 one year window for doing so in California, under the Service Members Relief Act.
You would expect a church to embrace returning veterans in every way possible with enthusiasm. No matter how awful the war, Americans from all over the political spectrum come together and agree that whatever we can do for the veterans, we do with fervor. But then again, when has the Catholic Church responded the way a Church should respond when it comes to reconciling its crimes against parish families? You would expect settle with the vets without even fighting.
The returning vets instead have to file lawsuits and take advantage of a longstanding benefit that active duty personnel in the USA have relied on for close to a century, a benefit that allows active duty service members to set aside personal battles such as lawsuits, so they can concentrate on the war they're fighting. Since World War One there has been law in place to assure members of active duty military that when they come off active duty, they will be able to pick up where they left off, as if the clock had just started running, with things like statutes of limitations and special advantages shared by non-service Americans during the period of time the service members were fighting the war.
Veterans from California who were on active duty in 2003 now want to participate in the same law other Californians took part in, the window that opened for one year for filing decades old child sex molestation lawsuits, in cases where a third party corporate entity was negligent and had prior notice. Returning veterans want to take part in the same law that allowed close to a thousand lawsuits to be filed in 2003, which then settled over the next years, such as the July 2007 settlement in Los Angeles where 510 persons shared a $660 million settlement.
And the Catholic Church is fighting the returning veterans, in the usual way, with phalanxes of attorneys, mounds of litigious paragraphs of print. In the hearing September 22nd, attorneys for the bishops debated the meaning of words, one at a time. Why does the law use the word “computing”? asked Lee Potts.
In Minnesota the Crosiers Religious Order tried this same tactic and lost. In February 2009 those cases settled in favor of the plaintiffs.
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| Vince Finaldi |
In L.A. last month, after Potts had babbled a bit, Vince Finaldi on the plaintiffs' side rose and said: “Mr. Potts is addressing the statute of limitations. These are federal laws that are designed to protect service men and women.”
Potts gets back up and continues to recite dictionary definitions for various words in the statutes as a form of litigation at god knows how much per hour billed to the L.A. Archdiocese. As Potts speaks, I find myself composing headlines to go with a story about this hearing.
Mahony to Vets: Screw You.
Mahony Sneers at veterans from Iraq to Afghanistan,
Catholic Church Fights Against Returning American Service Members
Mahony Fights American Soldiers with Battalions of Wiry Bony Attorneys
POTTS: Not only that but there are latches and waivers…
JUDGE: They may as well not have the Soldiers and Sailors Act at all, by your way of thinking. You're saying the federal law that protects service members is meaningless.
POTTS: I'm not, I'm - I'm - uh-
JUDGE: What if every state applied it differently? It would mean the Service Members Act was meaningless.
(I'm thinking, not only does the Catholic Church think they have a right to turn pedophiles loose on whole populations of families and not pay the consequences. Now archdioceses around the country think they have the right to ignore Federal law that was designed to protect American service men and women from being denied the same justice as Americans who don’t join up and go to war. The Church continues to fight bone by bone against the parish member children, now adults, whose lives were damaged by their negligence.)
POTTS: We have the word computing and the statute of limitations.
There’s a woman sitting next to Potts and now she rises, introduces herself as Marie Roberts for the Bishop of San Diego
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| Marie Roberts |
ROBERTS: I agree with Mr. Potts. The Soldiers and Sailors Act is a jurisdictional issue not a traditional statute. It would not toll, I think it’s an error. How much time do they have once they get out of the military? This one plaintiff got out of the military in July 2006 and waited until April 2008 to file. At one point the court commented but did not issue an order saying they would have one year to file a lawsuit. This filing is 36 years after the abuse, so -
Roberts went on: Number one, he waited too long after getting out of the military, then you can’t file a lawsuit thirty six years later.
JUDGE: Wait a minute, how far back do the oldest cases in the clergy cases go.
(Me, I want to jump up and holler, they went back as far as the 1940s, that's why I'm going so nuts, because if I’d been raped in California, I’d have money in the bank right now, but since I was raped outside Chicago, I'm still damaged with no recompense. The military members are not the only ones crying out for national unity in application of justice in the clergy cases. Since people in California were able to settle, people all over the country should be able to settle because of similar cases. But I'm just one lone blogger babbling. . .)
I'm Also Wondering
Why does Judge Elias have to ask if the clergy cases that settled in July 2007 went as far back as the 1940s?
Several lawyers in the room call out in answer.
Potts says, “the sixties even.”
A plaintiff attorney says, “No farther back.”
I want to scream “They went all the way back to the 1940s.”
Potts says, oh well maybe the early sixties.
Finally one of the plaintiff attorneys gets heard, “They went back as far as the 1940s, your honor.”
Potts tries to get the conversation back on his argument:
POTTS: The plaintiff waited too long, he went too far, you can’t just say I get to start all over again.
And I drift off again, thinking of Potts meeting with Cardinal Mahony later to discuss this hearing:
These two men are so similar in body construction, their brittle boniness, their somewhat disconnected from most other humans quality they both have. As I daydream about the Cardinal and Mr. Potts meeting together, I think I smell expensive brandy.
Then Judge Elias said, “Requests for Judicial Notice should be granted on all of these," meaning she ruled in favor of the Plaintiffs.
As Potts arose again, she stopped him: “Yes, I know it said ‘shall instead of ‘may’ and it say’s ‘in computing.’” She motions with her hand and Potts stops the word from coming out of his mouth, then Judge Elias continues: “And it says ‘a temporary reprieve to service members,’ including an effort to be fair to all parties.”
Potts is bony and hyperactive, his presence brings up memories of a young Anthony Perkins, before American filmgoers adjusted to Perkins’ oddness.
More pours from the mouth of Lee Potts: “Over the years many provisions have been considered, for example, go to the third paragraph down, sub section G”
Potts jabbers on: "Plus it says, shall be excluded. They know how to say shall only when they mean it.
To me, it seems like everyone in the courtroom squirmed as Potts went on, all nine defense and two plaintiff attorneys, plus me and the one reporter from the L.A. Times, just changed position all at the same time. Trying not to project uncivil behavior in civil court.
POTTS: Changing ‘shall’ to ‘may’ means something.
JUDGE: You're comparing apples to oranges.
I wonder how much the archdiocese pays per hour for Potts and the Hennigan firm to do this.
Michael Kinslow for the plaintiffs rises, saying he represents John Roe 67 whose lawsuit is against the San Diego Archdiocese, and “since 1925 this law has been interpreted differently but always for service members.”
Potts: Yes but it now says if you do not take action in a timely manner. Plus ‘in computing’ does not apply to a fixed period of time.
Jibber jabber jibber jabber jibber jabber jibber jabber
POTTS (cont’d) - yeah it’s true Roe 67 is still in the military, but there’s no claim he was unable to know about the 2003 window for filing lawsuits wherever Roe 67 was serving overseas, he should have heard about the 2003 window and gotten his lawsuit filed.
I'm thinking, yeah, even though a couple thousand or so potential plaintiffs didn't hear about the 2003 window when they were living inside the United States, even some living here in California didn't hear about the window in 2002 in order to file in 2003.
Nothing stops a church attorney from litigating, the Church still has the same bottomless briefcase full of cash they were using in 2007 to pay for their never ending defense.
POTTS: As to the clergy cases 2007, there was not one who was permitted 40 years later to use this act as a sword 30 to 40 years later.
(I’m not making this up, I was taking notes he really said that- ke)
KINSLOW: This plaintiff was injured and in a veterans’ hospital.
POTTS: Still you're not taking into account the big picture.
JUDGE: The big picture is that these cases will go on as long as your legal career.
POTTS: The most time they have is one year.
JUDGE: John Roe 65, I’ll look at again. Otherwise the Soldiers and Sailors Act overrules your demurrer on all but John Roe 65. For TH Doe the stay is lifted.
And Judge Emilie Elias surmised as she ended the hearing, "I think we have a very interesting issue in interpreting the soldiers and sailors act."
In court that day were six attorneys for the defense, three for the plaintiffs, plus another guy from defense attorneys’ team sitting in the back.
One reporter from Los Angeles Times showed up took notes and asked questions in interviews outside the courtroom later. However, nothing appeared in the L.A. Times about the hearing. Not that I’ve ever seen…
In an attempt to understand what was going on better, City of Angels tracked down documents and spoke to a couple military officers who are also adult victims of pedophile priests aka survivors.
From plaintiff documents filed by Devin Storey and Michael Kinslow at The Zalkin Law Firm in San Diego:
The Church’s demurrers are, “A thinly veiled attempt to confuse this Court into applying the incorrect standard.”
Defense argues, “That the service member must be subjected to some hardship to pursue his claim as a result of his service.”
The plaintiff in one of the cases being fought by the Church September 22nd in L.A. had “a 47 year career in the military.”
“Plaintiff was born on June 7, 1959. Plaintiff enlisted in the delayed entry program of the United States Navy on November 18, 1976. Plaintiff went active in July of 1977. Plaintiff remained on active duty with the United States Navy until July of 2006.”
More from Plaintiff’s First Amended Complaint:
From 2001 until mid-2004, Plaintiff John Roe 65 was stationed in Guam in connection with his active military service.
By virtue of John Roe 65’s active military service, the statute of limitations on his claim was tolled under the Soldiers and Sailors Civil Relief Act of 1940.
The statute of limitations did not resume running until Plaintiff John Roe 65 left active duty in July of 2006.
Mathematically, Plaintiff could not have been more than 53 days past his eighteenth birthday when he began his active duty with the United States Navy.”
The Defense claims using the SCRA is prejudicial to the Archdioceses.
Aside from the passage of time, Defendant’s only feeble attempt at demonstrating prejudice lies in its contention that “it paid almost $200 million to secure final resolution of ancient claims like the Plaintiffs” here. It did so “in reliance on the Legislature’s assurance that such claims were revived only during calendar year 2003.”
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This argument from the two Archdioceses, San Diego and Los Angeles, that they can bypass the Service Members Civil Relief Act displays how Church hierarchy consider themselves above the law. Sometimes you can’t quite pinpoint that arrogance from Church heirarchy, but here it is in their own documents.
They want the court to ignore the rights of American service members in favor of the bank accounts of the Roman Catholic Church.
In documents filed in early September 2009 for the hearing on the 22nd, Plaintiffs argued:
“Congress made a deliberate policy judgment to omit a prejudice requirement from the tolling provision. (cite Conroy)
“Defendants’ analysis regarding legislative history rests upon general statements of individuals, and a press release, regarding the general purpose of the Act in its various forms.
Evidence put forth by the defense to argue against the returning service men and women:
1) Three sentences spoken by the Secretary of War in 1940, when testifying about his views on the 1940 version of the Act.
1) Two sentences spoken on the floor of the House of the United States Representatives by Representative Christopher Smith in which he reports upon the opinions of unidentified others.
3) A single phrase from a press report issued by a House Committee
4) Three sentences uttered by an Acting Assistant Secretary of Defense when testifying about his understanding of prior versions of the Act.
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