-: SJC-13219,
John Doe v. Roman Catholic Bishop of Springfield.
-: Okay, Attorney McDonough.
-: Chief Justice Budd, may I please the court?
My name is Michael McDonough on behalf of the appellants.
This case presents three issues.
Number one, present execution allows an immediate appeal.
Number two, the Roman Catholic Diocese of Springfield
is a charity,
which is totally immune under counts one through seven,
from tort claims arising in the 1960s.
-: Are you claiming immunity by suit or of liability?
-: By suit, your Honor.
Number three, the remaining counts 8 through 14
are barred by the First Amendment,
which denies civil courts subject-matter jurisdiction
over religious determinations.
In this case, the Roman Catholic Church's determination
of whether a Bishop was, quote, "credibly accused," unquote,
as defined by Vatican-approved Catholic doctrine.
First, present execution is a well established exception
to the rule that most appeals must await a final judgment
in the trial court.
However, the doctrine applies
when the order interferes with rights
in a way that cannot be remedied later
and where the motion judge's order
is collateral to the underlying dispute.
Under the first element,
the rights that cannot be remedied later
are the defendant's absolute immunities from suit.
-: All right, let's talk about that immunity for suit
for a minute.
Are we dealing with anything involving the Immunity Statute,
the Charitable Immunity Statute?
or are we concerned with case law
before the immunity statute?
-: Prior to the statute in- -: So we are dealing
with the common law?
-: That's correct, Your Honor.
-: All right.
And where in the common law would you rely
for the point that the church is immune from suit
rather than liability?
-: Pre-1971 charitable immunity was an immunity from suit,
as this court stated,
"immunity from suit is consistent with possible," excuse me,
"with public policy as the charitable corporations,"
that was footnote 17 to the State of Molton.
And here there was-
-: Could you read the exact quote?
Read the quote.
You have the quote,
or you just doing your summary of it?
-: "Immunity from suit is consistent with public policy
as the charitable corporations,"
and that would be footnote 17 of the State of Molton.
-: And what year was that case?
-: 2014.
-: Okay, but that's not pre-Immunity Statute.
I want something before the Immunity Statute
that would've said
that this is immunity from suit, not liability.
-: The question, we're not aware of a case
that addressed that question prior to 1971.
However, it's important to note that prior to 1971,
and this is issue two in the case,
prior to 1971, it was immunity from all torts.
-: Well, but don't the majority of our cases
out of the common law hold that charitable immunity
provides immunity from liability, not suit?
That's how I had read them,
that there were the cases before then
in the common law doctrine were about liability, not suits.
So I need something that says I'm reading this wrong.
-: No, we would disagree that cases
or immunities arisen from common law
do not, automatically do not trigger present execution,
for instance in Lynch v. Crawford, this court held,
"where absolute or qualified immunity
is provided by statute or common law,
we discern whether the right to immunity
is from suit or liability,
because only immunity from suit," again, of course,
entitles a party to present execution.
Also the Supreme Court in Mitchell v. Forsyth
looked at the preexisting common law basis
for the public official immunity,
and the Fourth Circuit has done the same in a recent case,
in which, again,
the court has looked at what existed before.
This court also did that in the 1980s,
in the case
of Breault v. Chairman of the Board
of the Fire Commissioner's, Springfield case also,
in which the court looked at the existence of the law
prior to Massachusett's adoption of the Tort Claims Act
there, the public, excuse me,
the common law doctrine of- -: Does this tie in though,
to whether or not charitable immunity back then
applied to intentional tort?
-: It does, and specifically this court, excuse me,
the Appeals Court analyzed that very question
in a lengthy decision, looking at that question
and studying all of this court's cases prior to 1971,
and concluded that it would in fact cover intentional torts
because it was an immunity from torts, not just negligence.
And in fact, there was one-
-: Very different kinds of torts, right?
Not child rape kinds of torts.
-: (Michael) That's correct, yeah.
-: Very different kinds of torts.
-: That's correct.
But here the defendant is not the individual perpetrator
but the corporate,
the charitable corporation.
-: Well, then we get to the second issue where corporation,
what is the word, sole?
-: It's a corporation sole, Your Honor.
-: Right, it's a corporation in sole
and that means the person and the person here is the Bishop
and the Bishop
is one of the people accused of raping the kids, right?
-: Yes. -: So I find it
really difficult, if not impossible,
to separate the Bishop from the corporation in sole,
when the Bishop is actually engaging
in the misconduct himself.
-: So the corporation sole
and the individual person, the Bishop,
are two absolutely distinct entities under the law.
Scott: How can, then no one's responsible?
I mean, I don't understand,
if the Bishop is described as the person,
as the corporation in sole, right?
Read me the language,
the definition of corporation in sole.
-: I don't have the Black's definition.
-: But it basically says whoever the Bishop is,
of this Bishop of Springfield, right?
-: No, Your Honor, I would disagree.
A corporation in sole is a red herring in this case-
-: It's not a red herring
when the Bishop is described as the.
The bishop in person is described
as the corporation in sole,
it's like sophistry to try to distinguish those two.
-: No, Your Honor,
because it's the same thing as corporation aggregate,
which would have, perhaps,
a board of directors of four directors,
here it's just a one-man director.
And so if the four directors of a non-profit,
of the Red Cross, went out and drove their car off duty
and crashed it negligently, Red Cross wouldn't be liable
if all four of those directors were involved.
It's the exact same legal-
Scott: That's right, corporation in sole is different
because it's one person.
-: That's right.
-: If we're gonna take this, then no person's actions,
then the corporation has no responsibility for anybody,
in your view, because that person is the corporation,
but we're gonna ignore all that person's actions?
Just- -: No, if those actions
are within the scope of his-
-: But there's no one, under your view,
then no one will be responsible for the corporation.
If when the only person who is the corporation in sole
is not responsible for the corporation,
how do we find anyone responsible?
No person can act for the corporation, in your view.
-: The analysis would be,
where the actions in furtherance of the corporation,
within the scope of the duties of this corporate officer
or multiple officers in the case of a board
or one officer in the case of a corporate sole?
And here, all the activities are well afar
and cannot be, well-afield of the purposes
of the organization, as stated in the statute forming it,
which was cited by the plaintiff in his complaint,
which was for charitable purposes
to conduct religious activities
on behalf of the Roman Catholic Church
in Western Massachusetts.
-: What about the Fells Acre?
Not the criminal case, the civil Fells Acre case
that I think it's,
even though it's in the context of insurance,
talks about the responsibilities of the corporation
when there was a sexual abuse allegation.
Why wouldn't that reasoning apply here
to the corporate sole?
Michael: Fells Acre found
that the activities were outside of the scope of authority
and the same should hold here, that these activities.
For example, if the board-
-: They talked about the possibility in that case,
that it could have been part of the,
perhaps, on further development
or in different circumstances,
actually part of the practice of the corporation
and to serve its purpose.
That was raised in the case, right?
-: It was, and in this case
the motion judge rejected that argument,
saying there could be no inference
that the general practice of the entity
was the sexual abuse of minors.
These actions occurred by individuals outside of,
and apart from their duties as religious leaders,
and because of that, they cannot be drawn in.
Most notably,
the restatement of agency- -: If we take that
to the logical conclusion.
I just wanna make sure I understand it.
Does that mean the church is never responsible,
in your view, and I'm accepting what you say, okay?
If any individual is acting for non-religious purposes
or non-charitable purposes,
the church is not responsible, right?
That's your argument, right?
Michael: If it's outside of the scope-
-: Right.
If we take that to its conclusion, right?
That means all of the sexual abuse of kids
at that Bishop must necessarily,
the Bishop has no responsibility for it,
under your view, right?
If every single priest was doing it,
the Bishop would have no responsibility
under your view, right?
-: No, currently we're under a different law right now,
but prior to 1971,
with absolute charitable immunity applying-
-: But let's go back
to that absolute charitable immunity again,
do you agree with the fact
that if it is immunity from liability and not suit,
that present execution doesn't apply?
-: If that's a determination of this court,
but that would be inconsistent with the court's holdings
and what the Supreme Court held in Mitchell v. Forsyth,
looking at total immunities.
Before 1971 was a total immunity.
Now, plaintiffs always had the ability
to sue the underlying tortfeasor directly,
that wasn't done here,
they couldn't sue the charitable employer of the tortfeasor.
And it's alleged that all of those actions occurred
in the 1960s before the law changed.
-: But what you're saying though is,
under past law, the church would have no responsibility,
the individuals alone would be responsible.
-: That's correct. -: And now under current law,
with a cap, are you saying then
that the church would only be responsible
for up to $20,000?
Whatever the cap, what is the cap now?
-: It is $20,000, Your Honor.
-: So for all of this activity,
the only people responsible are the individual priests
and the Bishop.
Prior to the passage of the act
is not responsible for anything, and post,
it's only responsible for $20,000.
I'm just trying to summarize your argument, is that right?
-: That would be applying section 231-85K.
-: You don't find that somewhat disturbing.
-: That is what the legislature has enacted.
And this analysis again, is a pre-1971 analysis.
Moving to the third point-
-: Again, post-1971,
the only difference is the Bishop is exposed to $20,000.
-: The corporation, not the Bishop, Your Honor.
Scott: That's what I'm saying, the corporation sole
is responsible for $20,000.
-: That's correct.
-: That the cap for all of this?
-: That is the cap, yes, Your Honor.
Again- -: If you think
that's what the legislature intended.
-: I do think that the legislature-
-: For all of this activity,
you think that's what the legislature intended?
That's a harsh judgment on the legislature.
-: It has been analyzed
as a continuation of the trust theory.
And again,
none of these counts arise under that fact pattern,
these are pre-1970s counts.
Moving on to the third point, if I may,
counts 8 through 14, invoke a, or make tortious actions
that the church and its employees and volunteers did.
Now moving forward to 2014 to 2019,
not by anyone accused to have committed any physical abuse,
but those working under the churches,
Vatican-approved guidelines and polity
for helping and ministering
to abuse- -: Well,
but that's where the claim is, right?
In the implementation of that policy, correct?
-: Yes, Your Honor.
-: So the challenge is to,
"Hey, you didn't even follow your own policy
for how to deal with this."
So you're claiming that this is,
what's the phrase again?
The autonomy doctrine, the church autonomy,
how does that work?
-: It's the religious autonomy doctrine
under the First Amendment
of the Constitution. -: Right.
-: And under Hosanna-Tabor, the Supreme Court said,
even if a religion didn't follow its own rules,
civil courts do not examine or reexamine the issue.
It's the same as this court's decision in the kosher cases,
including United Kosher Wholesalers
versus Associated Synagogues,
where they said that the rabbinical board
had frozen them out by declaring them non-kosher.
This court said, "even if you're alleging that conspiracy,
that your competitors have donated to the synagogues
and you haven't, and now they're freezing out,
even if that looks like has merit,
we will not intervene."
There it was, what is kosher?
It was gonna decide that case.
Here it is, who is and how is a clergy member,
quote, "credibly accused,"
not the layman's use of those words,
but the Pope's guided use of those words
under Catholic Canon Law, which this court,
the Supreme Court just said, "may not examine."
-: How do you- -: So, because-
Oh, go ahead. -: No, go ahead, go ahead.
-: Because the complainant's complaint alleges things
that use similar language
to the Pope's order on how you're gonna handle this,
this brings it into the religious doctrine?
-: That, and in addition to that, Your Honor,
the plaintiff was voluntarily participating
in that religiously-created program for five years,
and then disagreed with the religions findings
of a religious board, the review board,
as it's falling its procedures under the Dallas Norms,
which is enacted by the Vatican
and the US Conference of Catholic Bishops.
And I encourage the justices to read those norms
because they control every act
that has been deemed tortious, counts 8 through 14.
-: That's in your record, appendix, right?
-: Yes, it is,
volume two. -: Okay.
-: Page 190. -: I have one other question,
and that is, is this church autonomy doctrine
a jurisdictional issue or is it an affirmative defense?
-: It is a matter of subject-matter jurisdiction,
whether the court has the ability to review this,
and it even includes a religious institution's commenting
and public commenting. -: How many cases
that say that this kind of thing is a jurisdictional issue?
-: Yes, I think under Hiles and Petrov,
this court has said that.
And there in Hiles specifically,
that religion held a press conference,
deeming the agreed party from the religious tribunal
and how bad their actions were.
-: Didn't Hiles distinguish.
I understand you may be right
that there may be some pruning based on complaints
about how the internal process of the church
dealt with things, but Hiles drew a distinction
once they made public statements
and they could impose responsibility
once they went outside of the process,
the church went outside of the process
that that could be subject to liability.
Isn't that what happens here
when statements are made to that reporter?
-: No, because the Dallas Norms require the church
to publish its findings publicly,
even in the secular community.
And they require the communications director of the church,
the actor here, to hold objectively
and give due process to accused priests
who have not yet been termed, quote, "credibly accused."
He had to answer
to that one. -: Again,
I wanna push you on this.
So if the Dallas Norms require public statements,
does that mean the church is immune
from any kind of liability for anything it says
so that it can act with total impunity?
I don't know if this is true or not,
what they said to that reporter,
but say it's a out-and-out lie and they know it,
is because the Dallas Statements require a public statement,
they're now protected?
-: It depends on the statement,
if it's about whether a clergy member
was or was not credibly accused,
as defined by the Vatican and the Dallas Norms,
that is protected.
If however, the spokesperson said,
"by the way, this individual, he's murdered three people,
he's committed these frauds," that would not be protected,
that's way afield of the disciplinary system
and abuse victim support system.
Same thing as whether the rabbis were lying
about whether the business
was kosher- -: So, wait.
So wait, so wait.
So if a priest commits a murder,
then that's not under the religious exemption,
they were the, what is it called, again?
I keep losing this phrase, the religious doctrine, right?
It's not under that. -: It's autonomy doctrine.
-: Religious autonomy doctrine.
But if a priest rapes a child,
that is under the autonomy doctrine?
-: No, pardon me
if the example was unclear. -: What are you trying to say?
-: If the comment about the plaintiff was that,
"oh, this plaintiff has not alleged,
his finding has not resulted
in finding him credibly accused."
If they made statements about the plaintiff,
not having nothing to do with the process,
of course that would be non-protected,
but just what they are required on the Dallas Norms
to inform the press,
and this is a list of publicly-accused priest,
and this is why the press reporter contacted the diocese was
"why isn't this Bishop on your list?"
The answer was, "under the Dallas Norms,
he's not yet, quote, 'credibly accused,'
and there has been no finding of that
because the Pope dictates
only the Bishop can make that finding
and we're not there yet."
-: But, okay.
So when you say we're not there yet,
what are you talking about?
Are you talking about the internal process of the church?
Are you talking about the process of this lawsuit?
Michael: The process of the church.
So first- -: So we have to wait
for the church to resolve all that?
-: The church's system,
it operates under its own timeliness
and its own procedures. -: Right.
And so the civil system just waits for that?
-: The individual can always, from step zero,
and the church informs them, sue anyone,
go report to the police
on day one. -: Yeah.
But I wanna know what to do with this motion to dismiss now,
on counts 8 through 14 on the religious, you know,
the religious, whatever, the religious autonomy doctrine.
Where is the religious autonomy,
how does that play out
and how does that relate
to your doctrine of present execution?
-: The way that the Supreme Court has,
and the case law has played out,
is that the individual can appeal
within the religious system
and here the church did reinvestigate everything
in the Beilis Report that is cited in the complaint
and the church ended up agreeing with the plaintiff,
it listed this- -: Okay,
so what does that have to do
with the doctrine or present execution?
-: Because here, that First-Amendment-protected process,
when someone disagrees with the timeliness
or the way that it was implemented,
cannot take that conduct and turn it also into a civil tort
and then sue based upon it.
And so a religious defendant should not be forced
to face the burns of litigation,
and it's a violation of the First Amendment.
-: Can we just talk about that in a little more detail?
Because I certainly understand your argument
about the review board
and the internal process of the church
and the First Amendment, and even perhaps on comments
as it relates to credibility.
But when somebody's out there spinning and saying,
"oh, oh, and by the way, he retracted that,
or he never said that," that's just spinning,
that's not religious doctrine,
that's not what happened with the review board.
And there's contentions here
that some of statements are,
"well, he acknowledged that there was no abuse,"
that's not review board,
that's just trying to get a good soundbite
in the (audio distorts)
-: Again, though, that analysis is stepping
into how the church interprets the evidence
before its poured.
And specifically the plaintiff in this case,
alleged in the complaint that, in fact,
the investigator did have a report
that said that the victim did recant
as to this third cleric.
Remember, the church immediately found credible
the first two clergy members who were accused,
the confusion was over the third
and then the church did reinvestigate that
after the press response,
it took a year-long investigation
and then ended up siding with the plaintiff.
Also on disparaging comments,
the plaintiff was never named,
his anonymity was kept
in all of these comments to the press.
So a defamation claim without even naming the intended
or the defamed person.
And again, the norms require, the name Weldon was shared,
and at that time,
there had not been a finding of the,
quote, "credibly accused," or a kosher determination,
or a determination of another religious board.
Here they hadn't made that determination yet.
And reviewing the church's review of its own evidence
through its process, forgive me,
but the plaintiff's complaint is asking this court
to trade its judicial robes
for the vestments of a Bishop or a pontiff
and to reinterpret these doctrines,
which the First Amendment, the Supreme Court
and this court have all held, it will not do,
even if it sees an aggrieved party
and perhaps otherwise a meritorious claim
based on the complaint,
it will not do so because that calls into question
separation of church and state, which we find fundamental
going back to the Adams Constitution,
duplicated in the Federal Constitution
and upheld in Hiles, Petrov,
and the many First Amendment cases of the Supreme Court.
This program also provides therapy payments,
medical payments, payments for compensation,
which is under the religious program here.
And it's perfectly fine for the plaintiff to go there
and report to the police,
as the diocese here in the complaint
and in the Beilis Report attached to the complaint,
did forward everything in 2018
to the district attorney's office.
However, when someone is upset
with the outcome of religious board,
they cannot go sue the religion
for the timeliness with which it came to its decision
and the decision is- -: That's not
what's going on here.
What's going on here
is counts 8 through 13 should be dismissed,
not because they're going to litigate
what the review board did, but they have to be dismissed,
even though there were statements made to the press
that didn't relate to the mission of the review board,
but were commenting on statements
that the victim allegedly made.
And it's not whether that it falls into it,
or doesn't fall into First Amendment protection.
It said, you are saying,
"no, 8 through 13, be dismissed."
Not- -: That-
-: It shouldn't be litigated
whether or not those statements exist.
-: That's correct, because the religious guidelines here
on record of appendix volume 2,
it's 119 through 138, and specifically page 129,
provides that the religion
or the diocese here must communicate its findings
to the press- -: What if it said,
"you must yell fire in a crowded theater?"
You can just have anything in there
that eliminates a defamation to it?
-: No, that would cross over
into the conduct cases and analysis.
Here, it's simply, and in Hiles, the religious group there,
the Episcopal Church went out on their own
and held a press conference
and said the misdeeds of how bad the actor was
in that case and said,
and then was sued for that defamation
and this court said it is perfectly natural
for a religion to have formed the community on discipline
concerning its senior members.
And in the Catholic Church discipline survives even death.
This individual was exhumed,
his body was moved out the state,
monuments were taken down,
a hospital named after him was renamed,
the disciplinary process,
people are canonized and disciplined even after death.
This is a disciplinary process.
Disciplinary systems have always been found to be protected
and even comments on them, as this court said in Hiles.
Again, here, just response to a reporter,
Hiles, an affirmative press conference
describing the immorality in the findings, not defamatory,
even when alleged one to be conspiratorial there,
there was a million dollar bequest
to that clergy member's church, and he said,
"this is all fixed to take it up to the diocese."
This court said, "We're not gonna get into that,
we're not gonna examine
whether it was a right or wrong determination
even if we can read your principles
and understand them clearly,
we're gonna follow the Supreme Court,
we're not getting involved, just like in the kosher cases,
the divorce gett cases, Petrov and Hiles,
we will not embroil this court
in matters when there's any ecclesiastic concern."
Unlike a property dispute,
here this is a disciplinary system,
and it can't be reexamined.
For that reason,
counts 8 through 14 should also be dismissed
and the decision of the motion judge should be reversed.
Thank you.
-: Thank you.
(clears throat) Attorney Pelletier.
-: Morning.
Chief Justice Budd, members of the court.
I'm here on behalf of John Doe.
I'm gonna begin with premise
that one of the justices raised,
and that is that according to the defendants,
the issue involving religious autonomy,
they perceive to be one of subject-matter jurisdiction.
This court has said very clearly
that the issue of subject-matter jurisdiction
is not subject to interlocutory appeal
even after summary judgment record has been developed.
Certainly, the very limited doctrine of present execution
should not apply under the circumstances of this case
when they are alleging
that the issue is one of subject-matter jurisdiction.
Frankly, that should end the inquiry, because-
-: Don't we have to wrestle with the issue
of whether it's immunity from suit
or immunity from liability?
'Cause if it's immunity from suit,
then it would fit within present execution doctrine.
-: That's the first series of claims,
I'm referring to the second series of claims,
which is the religious autonomy portion.
And if the second set of claims,
those related to the communications with the press
are subject to subject-matter jurisdiction arguments,
which is their argument,
once that determination is made,
that that portion of the complaint
is not subject to the doctrine of present execution,
the diocese will remain in the case
and the case will proceed.
And under those circumstances, rather than foster,
it would foster piecemeal appellate litigation
rather than restrict it.
In terms of your inquiry on the first,
what I'm calling the first set of claims, there is no suit,
there is no case anywhere in the Commonwealth
that addresses the issue of the common law determination
of charitable immunity in a way that would suggest
that its immunity from- (microphone thuds)
-: He read a footnote,
I don't have the footnote in front of me,
but he read a footnote
that talked about immunity from suit, didn't it?
-: He read a footnote that talked about immunity from suit,
I believe, referencing not a situation such as this,
in a situation that post dates chapter 231, section 85K.
-: So it's loose language that was wrong,
is that what you're saying?
-: I'm saying it's a footnote in a case
that has no application, frankly,
to the issue of common law immunity
under the circumstances that we have before us.
And as I believe you noted,
the concept that this common law immunity would be so global
as to apply to the circumstances of this case.
Also addressing the issue of intentional tort
is extremely questionable, but it has not been decided.
-: Well, the SJC is not decided whether the intentional torts
would fall within the pre-1971 immunity, right?
-: That's correct.
Any intentional tort, nevermind the types of torts
that we're talking about in this case.
-: The second issue they raise
is more complicated tough, right?
There's a lot in the complaint
that's caught up with the internal disciplinary process
and timing and you know, back and forth.
Don't they have a point that some of that
is beyond our jurisdiction
and will get us excessively entangled
in the church disciplinary and investigatory process?
-: No, because the complaint contains the detail
of what happened at the review board process
so that you can understand what happens thereafter.
-: But again, it looks like it fits
within what Hiles talks about, which is,
we don't want the civil courts to be caught up
in policing the internal.
You can go to the civil courts, and you know,
I find the first part of this not without basis,
that you should be able.
If priests are raping, you know, children,
the civil courts can investigate those
and prosecute them and hold the Bishop by,
that part I don't have any trouble with,
the second part though,
they seem to have a pretty good point,
which is, "we don't want the civil courts
reviewing how the church's own processes went,"
that's separate, we should stay out of that.
-: I don't disagree,
I think the problem is the analysis
that that's what the theory of liability is.
The theory of liability in this case
is not with respect to what happened
at the review board itself,
but what happened when an inquiry was made,
and this is different than them going out
and presenting a press conference,
an inquiry was made by an outside individual
as to what happened
and why certain things weren't done.
The response to that inquiry was documented in emails,
the response to that inquiry is where the defamation lies,
not in what happened- -: But again,
it's based on what's going on in their own processes
and whether they're telling the truth
about their own processes, I guess.
It seems like Hiles seems to cover that though,
doesn't it? -: Well, the process
had theoretically been completed.
The process had been completed
as far as they were concerned.
There was a letter that was written by the review board
and I believe, in the letter itself the chairman says,
"we're done, now this goes to the Bishop."
-: Right. -: And then it was done
as far as the church was concerned.
-: But let me, along these lines
where I'm getting a little bit confused on this
is that you basically have two types of statements, right?
That those based in counts 8 through 14 on,
one is the statement regarding the findings
of the review board, and then the second one
is the statements regarding the substance
of those allegations.
And it seems what I'm struggling with
is that this first class would seem to require
that we determine whether that review board made a finding,
in which case we would be rendering an opinion
on what the Board did or didn't do
within their own processes.
-: The review board wrote a letter that was very simple.
We're not asking the court
to consider what the review board said.
There is a letter and it is very simple
and that is what was given to the Bishop,
that is what is before the court,
the efforts now to say the letter doesn't say what it says,
is essentially attempting to change the terminology
in the letter, but the letter is there
and the letter is evidence.
Add on to that the fact that the church itself engaged,
retired Justice Peter Villas conducted an investigation
and he made an determination which was adopted by the church
and adopted by the bishop,
which clearly says that Bishop Weldon was credibly accused.
-: I'm looking at paragraph 40 in your complaint.
"Defendants owed or assumed duties
to report plaintiff's allegation," that part's easy,
"properly investigate the complaint,
accurately document their investigation,"
that seems problematic, "refrain from falsifying
or altering the documentation relevant
to their investigation.
Accurately convey the results of their investigation,
refrain from misrepresenting allegations or results
of their investigation to the public and the press."
Isn't that what we're not supposed to get involved in?
'Cause it's like redoing their,
it's basically talking about how they did it
and how they described it,
that seems like that's Hiles, why am I wrong there?
I just don't get it.
-: Again, because I suppose there's some language in there
that might be problematic to the extent
that it purports to suggest that-
-: Well, isn't all of what I just read, problematic?
-: Not in my view, Your Honor, because again,
we're not talking about the process itself which,
according to Judge Lewis, wasn't followed.
Scott: But you are talking
about accurately document their investigation,
refrain from- -: But that-
Scott: Falsifying or altering
the documentation relevant to the-
-: That- -: Accurately convey
the results of their investigation,
it seems like it's all about their investigation.
-: To the extent that the term investigation is utilized,
a portion of that relates to what happened
and perhaps investigation is not the proper term.
Once Mr. Parnass made his inquiry,
there was then an entirely separate scenario,
which involved counsel, it wasn't the review board,
it was counsel, the director of communications,
the director of safety for the church,
it was a new person.
They allegedly conducted some form of investigation
so as to allow them to respond
to the inquiries of Mr. Parnass,
that's completely independent of what happened
at the review board.
And nowhere in their-
-: Well, Mr. Parnass,
is he the reporter from the-
-: Yes, yes.
-: Very good.
He wants to know what the church has found
about the Bishop. -: Right.
-: He may have a business in that, but the courts are,
we don't create liability out of that, right?
Because we wanna keep ourselves separate
from their investigatory processes.
I mean, the reporter may wanna see
whether they're living up to their own terms,
but that's different than the civil court system, isn't it?
-: I think there's a separation once they begin to respond
and create a false narrative.
-: It isn't, doesn't Hiles say the exact,
I mean, I may misreading Hiles, but I just went back to it.
Doesn't Hiles say the exact opposite?
They can make statements about it
and they can even make untrue statements about it, right?
Nancy: In this situation
and in response to the specific inquiry
and making statements which are defamatory
as to Mr. Doe, which is what they did,
if they simply said, "no, that isn't what we found."
-: But isn't that what Hiles said they can do?
Am I misreading Hiles or are you saying Hiles is wrong?
-: I'm not saying Hiles is wrong,
I'm saying that this takes one step beyond.
Scott: Why?
-: Because it's outside of the process that they-
Scott: Hiles's statement
is also outside of the process, right?
In Hiles, don't they make some kind
of potentially defamatory statement outside of the process?
I don't remember in detail.
-: I don't think it's outside of the process,
the same way that this is, even assuming-
-: It's a statement- -: You can figure out-
Scott: It's a statement to a reporter, isn't it?
-: It's a statement made from the church out
as opposed to in response to an inquiry.
So I think that- -: So to you
that's the big difference,
that one- -: I think
there's a distinction to be made.
The cases where the diocese
through its communication director puts out information,
arguably falls within their process
but in response to an inquiry from the outside-
Scott: The inquiry is a about their process.
-: Well, but that would mean that anybody
that asked a question about anything that goes on-
-: No, the reporter's free to ask the question,
the reporter is free to call him a liar
and do whatever he or she wants.
The question is,
do the judicial system create a remedy for that?
-: And our position is yes, it does,
if you get to that level, but again,
I'm going all the way back to the issue
of whether this is an issue of subject-matter jurisdiction.
We would be addressing this at this point-
-: Mm-hmm. -: Because it shouldn't be
before this court under the doctrine of present execution.
The court has no further questions?
-: Everybody else?
Thank you very much.
Nancy: Thank you.