By Greg Moran
San Diego Union-Tribune
June 27, 2004

http://www.signonsandiego.com/news/metro/20040627-9999-1m27clergy.html

In a move with possibly far-reaching implications, a broad assault on the California law that allowed hundreds of lawsuits alleging decades-old sexual abuse by priests has been quietly filed in federal court here.

Lawyers for the Diocese of Davenport in Iowa contend in court papers that the law violates the church's religious freedom protections, due process rights and other constitutional rights.

If successful, the challenge could derail hundreds of lawsuits filed across the state in 2003, including nearly 100 against the Roman Catholic Diocese of San Diego and Imperial counties.

While attorneys representing the church around the state have said they would consider challenging the law, none has yet to do so while settlement negotiations aimed at resolving the huge number of claims continue.

The lawyer for the Archdiocese of Los Angeles said those sessions will continue, but said the Davenport claim was an interesting development.

"This is the first case I've heard of that is this articulate in raising the appropriate arguments," said attorney J. Michael Hennigan. "We are interested in it, but it does not alter our strategy" of trying to reach a settlement with all the plaintiffs.

But Jeffrey Anderson, a Minneapolis lawyer who has made a career of suing the church and represents the alleged victim in the Davenport case, dismissed the move as a frivolous attempt to knock out the law.

"They're trying to do this under the radar," Anderson said. Moving the case to federal court and attacking the law was an attempt to dodge the efforts at reaching a settlement through mediation, he said.

Anderson said he was confident the law would be upheld.

Passed by the Legislature in 2002 as the national sex abuse scandal in the church was growing, the law suspended the legal time limit for filing lawsuits alleging abuse from years ago. It opened a one-year window for those who contend they were abused to bring a suit.

That window closed Dec. 31.

The Davenport diocese was sued Dec. 30 by a man who now lives in Colorado. It was one of a flurry of suits that were filed in San Diego and around the state as the deadline approached.

The man, now 35, alleges in the suit that a Roman Catholic priest, Rev.
Thomas Janssen, now 81, abused him between 1967 and 1969. Janssen was a priest in the Davenport diocese who is now named in several suits there and has been recommended by a church panel to be defrocked.

Some of the abuse occurred at a nude beach in San Diego in 1968 when the two took a trip to the city, according to the complaint. The suit was filed here to take advantage of the state law. The man also filed suit in state court in Iowa, which does not have a statute of limitations exception like California, said Rand Wonio, the lawyer for the Davenport diocese.

He said the diocese will challenge the man's suit in state court there.

Last year all the abuse lawsuits filed against the Archdiocese of Los Angeles and the dioceses of Orange, Riverside, San Bernardino and San Diego counties were ordered to be coordinated under one Los Angeles Superior Court judge.

But the Davenport abuse suit is unique. Because the diocese is not located in California, and the alleged victim lives in Colorado, there is what federal law calls "diversity jurisdiction," which brings the case under the arm of the federal court.

Wonio said the diocese was simply following the advice of its San Diego lawyers in moving the case. Those lawyers declined to comment.

When the suit was transferred, the Iowa diocese filed a counterclaim against the alleged victim, outlining the attack on the law. The counterclaim was filed May 25 in San Diego federal court.

It alleges the California law "targeted and punished Catholic institutions,"
and was the product of the "self-interest of a collection of powerful plaintiff's attorneys."

It argues the law should be declared void because it retroactively eliminates the legal time limit for filing claims. It also contends the law violates the ex post facto clause of the Constitution, which bars laws that retrospectively change the legal consequences or punishments.

That was the basis for the U.S. Supreme Court last year striking down a California criminal law that retroactively changed the statute of limitations for prosecutors to bring sexual abuse criminal charges in certain cases.

Anderson said the Supreme Court decision dealt only with changes to criminal law, and that in other cases the ability of the Legislature to change civil laws has been upheld.

"There is a great deal of research and authority that supports this statute and the ability of a Legislature to amend (laws)," he said.

The diocese also argues that the law treads on religious freedom. The First Amendment religious protections prohibit civil courts from hearing cases that touch on a variety of religious subjects, such as the selection and supervision of priests and the "ecclesiastical relationships between a bishop and a priest."

The counterclaim does not seek monetary damages, but asks the court to declare the statute void.

Mary Grant, a representative with the Survivors Network for those Abused by Priests, said the move was disappointing and is part of a pattern of the church using "hardball and stonewalling legal tactics."

"We're not surprised church officials are trying to hide behind legal technicalities to deny victims their day in court," she said.

[Greg Moran: (619) 542-4586; greg.moran@uniontrib.com]