WEBVTT

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<v ->SJC-13219,</v>

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John Doe v. Roman Catholic Bishop of Springfield.

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<v ->Okay, Attorney McDonough.</v>

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<v ->Chief Justice Budd, may I please the court?</v>

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My name is Michael McDonough on behalf of the appellants.

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This case presents three issues.

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Number one, present execution allows an immediate appeal.

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Number two, the Roman Catholic Diocese of Springfield

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is a charity,

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which is totally immune under counts one through seven,

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from tort claims arising in the 1960s.

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<v ->Are you claiming immunity by suit or of liability?</v>

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<v ->By suit, your Honor.</v>

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Number three, the remaining counts 8 through 14

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are barred by the First Amendment,

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which denies civil courts subject-matter jurisdiction

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over religious determinations.

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In this case, the Roman Catholic Church's determination

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of whether a Bishop was, quote, "credibly accused," unquote,

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as defined by Vatican-approved Catholic doctrine.

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First, present execution is a well established exception

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to the rule that most appeals must await a final judgment

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in the trial court.

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However, the doctrine applies

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when the order interferes with rights

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in a way that cannot be remedied later

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and where the motion judge's order

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is collateral to the underlying dispute.

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Under the first element,

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the rights that cannot be remedied later

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are the defendant's absolute immunities from suit.

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<v ->All right, let's talk about that immunity for suit</v>

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for a minute.

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Are we dealing with anything involving the Immunity Statute,

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the Charitable Immunity Statute?

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or are we concerned with case law

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before the immunity statute?

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<v ->Prior to the statute in-</v>
<v ->So we are dealing</v>

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with the common law?

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<v ->That's correct, Your Honor.</v>

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<v ->All right.</v>

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And where in the common law would you rely

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for the point that the church is immune from suit

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rather than liability?

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<v ->Pre-1971 charitable immunity was an immunity from suit,</v>

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as this court stated,

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"immunity from suit is consistent with possible," excuse me,

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"with public policy as the charitable corporations,"

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that was footnote 17 to the State of Molton.

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And here there was-

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<v ->Could you read the exact quote?</v>

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Read the quote.

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You have the quote,

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or you just doing your summary of it?

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<v ->"Immunity from suit is consistent with public policy</v>

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as the charitable corporations,"

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and that would be footnote 17 of the State of Molton.

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<v ->And what year was that case?</v>

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<v ->2014.</v>

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<v ->Okay, but that's not pre-Immunity Statute.</v>

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I want something before the Immunity Statute

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that would've said

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that this is immunity from suit, not liability.

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<v ->The question, we're not aware of a case</v>

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that addressed that question prior to 1971.

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However, it's important to note that prior to 1971,

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and this is issue two in the case,

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prior to 1971, it was immunity from all torts.

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<v ->Well, but don't the majority of our cases</v>

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out of the common law hold that charitable immunity

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provides immunity from liability, not suit?

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That's how I had read them,

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that there were the cases before then

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in the common law doctrine were about liability, not suits.

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So I need something that says I'm reading this wrong.

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<v ->No, we would disagree that cases</v>

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or immunities arisen from common law

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do not, automatically do not trigger present execution,

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for instance in Lynch v. Crawford, this court held,

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"where absolute or qualified immunity

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is provided by statute or common law,

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we discern whether the right to immunity

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is from suit or liability,

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because only immunity from suit," again, of course,

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entitles a party to present execution.

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Also the Supreme Court in Mitchell v. Forsyth

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looked at the preexisting common law basis

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for the public official immunity,

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and the Fourth Circuit has done the same in a recent case,

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in which, again,

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the court has looked at what existed before.

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This court also did that in the 1980s,

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in the case

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of Breault v. Chairman of the Board

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of the Fire Commissioner's, Springfield case also,

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in which the court looked at the existence of the law

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prior to Massachusett's adoption of the Tort Claims Act

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there, the public, excuse me,

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the common law doctrine of-
<v ->Does this tie in though,</v>

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to whether or not charitable immunity back then

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applied to intentional tort?

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<v ->It does, and specifically this court, excuse me,</v>

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the Appeals Court analyzed that very question

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in a lengthy decision, looking at that question

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and studying all of this court's cases prior to 1971,

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and concluded that it would in fact cover intentional torts

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because it was an immunity from torts, not just negligence.

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And in fact, there was one-

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<v ->Very different kinds of torts, right?</v>

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Not child rape kinds of torts.

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<v ->(Michael) That's correct, yeah.</v>

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<v ->Very different kinds of torts.</v>

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<v ->That's correct.</v>

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But here the defendant is not the individual perpetrator

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but the corporate,

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the charitable corporation.

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<v ->Well, then we get to the second issue where corporation,</v>

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what is the word, sole?

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<v ->It's a corporation sole, Your Honor.</v>

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<v ->Right, it's a corporation in sole</v>

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and that means the person and the person here is the Bishop

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and the Bishop

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is one of the people accused of raping the kids, right?

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<v ->Yes.</v>
<v ->So I find it</v>

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really difficult, if not impossible,

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to separate the Bishop from the corporation in sole,

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when the Bishop is actually engaging

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in the misconduct himself.

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<v ->So the corporation sole</v>

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and the individual person, the Bishop,

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are two absolutely distinct entities under the law.

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<v Scott>How can, then no one's responsible?</v>

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I mean, I don't understand,

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if the Bishop is described as the person,

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as the corporation in sole, right?

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Read me the language,

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the definition of corporation in sole.

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<v ->I don't have the Black's definition.</v>

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<v ->But it basically says whoever the Bishop is,</v>

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of this Bishop of Springfield, right?

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<v ->No, Your Honor, I would disagree.</v>

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A corporation in sole is a red herring in this case-

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<v ->It's not a red herring</v>

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when the Bishop is described as the.

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The bishop in person is described

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as the corporation in sole,

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it's like sophistry to try to distinguish those two.

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<v ->No, Your Honor,</v>

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because it's the same thing as corporation aggregate,

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which would have, perhaps,

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a board of directors of four directors,

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here it's just a one-man director.

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And so if the four directors of a non-profit,

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of the Red Cross, went out and drove their car off duty

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and crashed it negligently, Red Cross wouldn't be liable

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if all four of those directors were involved.

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It's the exact same legal-

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<v Scott>That's right, corporation in sole is different</v>

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because it's one person.

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<v ->That's right.</v>

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<v ->If we're gonna take this, then no person's actions,</v>

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then the corporation has no responsibility for anybody,

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in your view, because that person is the corporation,

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but we're gonna ignore all that person's actions?

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Just-
<v ->No, if those actions</v>

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are within the scope of his-

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<v ->But there's no one, under your view,</v>

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then no one will be responsible for the corporation.

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If when the only person who is the corporation in sole

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is not responsible for the corporation,

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how do we find anyone responsible?

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No person can act for the corporation, in your view.

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<v ->The analysis would be,</v>

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where the actions in furtherance of the corporation,

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within the scope of the duties of this corporate officer

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or multiple officers in the case of a board

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or one officer in the case of a corporate sole?

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And here, all the activities are well afar

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and cannot be, well-afield of the purposes

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of the organization, as stated in the statute forming it,

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which was cited by the plaintiff in his complaint,

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which was for charitable purposes

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to conduct religious activities

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on behalf of the Roman Catholic Church

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in Western Massachusetts.

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<v ->What about the Fells Acre?</v>

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Not the criminal case, the civil Fells Acre case

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that I think it's,

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even though it's in the context of insurance,

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talks about the responsibilities of the corporation

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when there was a sexual abuse allegation.

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Why wouldn't that reasoning apply here

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to the corporate sole?

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<v Michael>Fells Acre found</v>

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that the activities were outside of the scope of authority

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and the same should hold here, that these activities.

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For example, if the board-

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<v ->They talked about the possibility in that case,</v>

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that it could have been part of the,

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perhaps, on further development

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or in different circumstances,

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actually part of the practice of the corporation

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and to serve its purpose.

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That was raised in the case, right?

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<v ->It was, and in this case</v>

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the motion judge rejected that argument,

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saying there could be no inference

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that the general practice of the entity

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was the sexual abuse of minors.

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These actions occurred by individuals outside of,

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and apart from their duties as religious leaders,

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and because of that, they cannot be drawn in.

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Most notably,

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the restatement of agency-
<v ->If we take that</v>

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to the logical conclusion.

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I just wanna make sure I understand it.

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Does that mean the church is never responsible,

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in your view, and I'm accepting what you say, okay?

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If any individual is acting for non-religious purposes

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or non-charitable purposes,

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the church is not responsible, right?

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That's your argument, right?

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<v Michael>If it's outside of the scope-</v>

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<v ->Right.</v>

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If we take that to its conclusion, right?

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That means all of the sexual abuse of kids

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at that Bishop must necessarily,

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the Bishop has no responsibility for it,

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under your view, right?

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If every single priest was doing it,

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the Bishop would have no responsibility

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under your view, right?

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<v ->No, currently we're under a different law right now,</v>

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but prior to 1971,

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with absolute charitable immunity applying-

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<v ->But let's go back</v>

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to that absolute charitable immunity again,

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do you agree with the fact

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that if it is immunity from liability and not suit,

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that present execution doesn't apply?

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<v ->If that's a determination of this court,</v>

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but that would be inconsistent with the court's holdings

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and what the Supreme Court held in Mitchell v. Forsyth,

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looking at total immunities.

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Before 1971 was a total immunity.

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Now, plaintiffs always had the ability

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to sue the underlying tortfeasor directly,

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that wasn't done here,

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they couldn't sue the charitable employer of the tortfeasor.

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And it's alleged that all of those actions occurred

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in the 1960s before the law changed.

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<v ->But what you're saying though is,</v>

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under past law, the church would have no responsibility,

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the individuals alone would be responsible.

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<v ->That's correct.</v>
<v ->And now under current law,</v>

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with a cap, are you saying then

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that the church would only be responsible

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for up to $20,000?

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00:11:20.180 --> 00:11:21.990
Whatever the cap, what is the cap now?

260
00:11:21.990 --> 00:11:23.690
<v ->It is $20,000, Your Honor.</v>

261
00:11:23.690 --> 00:11:26.070
<v ->So for all of this activity,</v>

262
00:11:26.070 --> 00:11:29.430
the only people responsible are the individual priests

263
00:11:29.430 --> 00:11:30.413
and the Bishop.

264
00:11:31.840 --> 00:11:34.110
Prior to the passage of the act

265
00:11:35.080 --> 00:11:38.330
is not responsible for anything, and post,

266
00:11:38.330 --> 00:11:41.120
it's only responsible for $20,000.

267
00:11:41.120 --> 00:11:44.360
I'm just trying to summarize your argument, is that right?

268
00:11:44.360 --> 00:11:46.527
<v ->That would be applying section 231-85K.</v>

269
00:11:46.527 --> 00:11:49.223
<v ->You don't find that somewhat disturbing.</v>

270
00:11:50.140 --> 00:11:54.090
<v ->That is what the legislature has enacted.</v>

271
00:11:54.090 --> 00:11:57.443
And this analysis again, is a pre-1971 analysis.

272
00:11:58.380 --> 00:11:59.367
Moving to the third point-

273
00:11:59.367 --> 00:12:01.190
<v ->Again, post-1971,</v>

274
00:12:01.190 --> 00:12:05.510
the only difference is the Bishop is exposed to $20,000.

275
00:12:05.510 --> 00:12:07.430
<v ->The corporation, not the Bishop, Your Honor.</v>

276
00:12:07.430 --> 00:12:11.140
<v Scott>That's what I'm saying, the corporation sole</v>

277
00:12:11.140 --> 00:12:14.560
is responsible for $20,000.

278
00:12:14.560 --> 00:12:15.393
<v ->That's correct.</v>

279
00:12:15.393 --> 00:12:17.552
<v ->That the cap for all of this?</v>

280
00:12:17.552 --> 00:12:20.090
<v ->That is the cap, yes, Your Honor.</v>

281
00:12:20.090 --> 00:12:20.923
Again-
<v ->If you think</v>

282
00:12:20.923 --> 00:12:22.693
that's what the legislature intended.

283
00:12:24.490 --> 00:12:26.191
<v ->I do think that the legislature-</v>

284
00:12:26.191 --> 00:12:27.973
<v ->For all of this activity,</v>

285
00:12:27.973 --> 00:12:30.920
you think that's what the legislature intended?

286
00:12:30.920 --> 00:12:34.875
That's a harsh judgment on the legislature.

287
00:12:34.875 --> 00:12:37.490
<v ->It has been analyzed</v>

288
00:12:37.490 --> 00:12:39.530
as a continuation of the trust theory.

289
00:12:39.530 --> 00:12:40.363
And again,

290
00:12:40.363 --> 00:12:42.680
none of these counts arise under that fact pattern,

291
00:12:42.680 --> 00:12:45.070
these are pre-1970s counts.

292
00:12:45.070 --> 00:12:47.630
Moving on to the third point, if I may,

293
00:12:47.630 --> 00:12:51.969
counts 8 through 14, invoke a, or make tortious actions

294
00:12:51.969 --> 00:12:54.610
that the church and its employees and volunteers did.

295
00:12:54.610 --> 00:12:57.190
Now moving forward to 2014 to 2019,

296
00:12:57.190 --> 00:12:59.860
not by anyone accused to have committed any physical abuse,

297
00:12:59.860 --> 00:13:01.800
but those working under the churches,

298
00:13:01.800 --> 00:13:05.650
Vatican-approved guidelines and polity

299
00:13:05.650 --> 00:13:07.148
for helping and ministering

300
00:13:07.148 --> 00:13:07.981
to abuse-
<v ->Well,</v>

301
00:13:07.981 --> 00:13:09.400
but that's where the claim is, right?

302
00:13:09.400 --> 00:13:13.200
In the implementation of that policy, correct?

303
00:13:13.200 --> 00:13:14.033
<v ->Yes, Your Honor.</v>

304
00:13:14.033 --> 00:13:15.477
<v ->So the challenge is to,</v>

305
00:13:15.477 --> 00:13:17.370
"Hey, you didn't even follow your own policy

306
00:13:17.370 --> 00:13:19.327
for how to deal with this."

307
00:13:20.202 --> 00:13:22.113
So you're claiming that this is,

308
00:13:23.650 --> 00:13:25.493
what's the phrase again?

309
00:13:26.850 --> 00:13:29.240
The autonomy doctrine, the church autonomy,

310
00:13:29.240 --> 00:13:30.490
how does that work?

311
00:13:30.490 --> 00:13:31.836
<v ->It's the religious autonomy doctrine</v>

312
00:13:31.836 --> 00:13:32.709
under the First Amendment

313
00:13:32.709 --> 00:13:34.420
of the Constitution.
<v ->Right.</v>

314
00:13:34.420 --> 00:13:37.190
<v ->And under Hosanna-Tabor, the Supreme Court said,</v>

315
00:13:37.190 --> 00:13:39.610
even if a religion didn't follow its own rules,

316
00:13:39.610 --> 00:13:42.486
civil courts do not examine or reexamine the issue.

317
00:13:42.486 --> 00:13:45.690
It's the same as this court's decision in the kosher cases,

318
00:13:45.690 --> 00:13:48.480
including United Kosher Wholesalers

319
00:13:48.480 --> 00:13:50.240
versus Associated Synagogues,

320
00:13:50.240 --> 00:13:52.120
where they said that the rabbinical board

321
00:13:52.120 --> 00:13:55.160
had frozen them out by declaring them non-kosher.

322
00:13:55.160 --> 00:13:58.430
This court said, "even if you're alleging that conspiracy,

323
00:13:58.430 --> 00:14:00.920
that your competitors have donated to the synagogues

324
00:14:00.920 --> 00:14:02.440
and you haven't, and now they're freezing out,

325
00:14:02.440 --> 00:14:04.130
even if that looks like has merit,

326
00:14:04.130 --> 00:14:05.460
we will not intervene."

327
00:14:05.460 --> 00:14:06.930
There it was, what is kosher?

328
00:14:06.930 --> 00:14:08.450
It was gonna decide that case.

329
00:14:08.450 --> 00:14:12.430
Here it is, who is and how is a clergy member,

330
00:14:12.430 --> 00:14:13.840
quote, "credibly accused,"

331
00:14:13.840 --> 00:14:15.640
not the layman's use of those words,

332
00:14:15.640 --> 00:14:17.881
but the Pope's guided use of those words

333
00:14:17.881 --> 00:14:20.275
under Catholic Canon Law, which this court,

334
00:14:20.275 --> 00:14:23.520
the Supreme Court just said, "may not examine."

335
00:14:23.520 --> 00:14:24.353
<v ->How do you-</v>
<v ->So, because-</v>

336
00:14:24.353 --> 00:14:26.000
Oh, go ahead.
<v ->No, go ahead, go ahead.</v>

337
00:14:26.000 --> 00:14:31.000
<v ->Because the complainant's complaint alleges things</v>

338
00:14:31.000 --> 00:14:33.210
that use similar language

339
00:14:33.210 --> 00:14:36.160
to the Pope's order on how you're gonna handle this,

340
00:14:36.160 --> 00:14:39.630
this brings it into the religious doctrine?

341
00:14:39.630 --> 00:14:41.530
<v ->That, and in addition to that, Your Honor,</v>

342
00:14:41.530 --> 00:14:44.380
the plaintiff was voluntarily participating

343
00:14:44.380 --> 00:14:48.110
in that religiously-created program for five years,

344
00:14:48.110 --> 00:14:51.070
and then disagreed with the religions findings

345
00:14:51.070 --> 00:14:53.160
of a religious board, the review board,

346
00:14:53.160 --> 00:14:56.360
as it's falling its procedures under the Dallas Norms,

347
00:14:56.360 --> 00:14:58.890
which is enacted by the Vatican

348
00:14:58.890 --> 00:15:00.510
and the US Conference of Catholic Bishops.

349
00:15:00.510 --> 00:15:03.050
And I encourage the justices to read those norms

350
00:15:03.050 --> 00:15:04.710
because they control every act

351
00:15:04.710 --> 00:15:07.030
that has been deemed tortious, counts 8 through 14.

352
00:15:07.030 --> 00:15:08.330
<v ->That's in your record, appendix, right?</v>

353
00:15:08.330 --> 00:15:09.163
<v ->Yes, it is,</v>

354
00:15:09.163 --> 00:15:09.996
volume two.
<v ->Okay.</v>

355
00:15:09.996 --> 00:15:10.829
<v ->Page 190.</v>
<v ->I have one other question,</v>

356
00:15:10.829 --> 00:15:14.800
and that is, is this church autonomy doctrine

357
00:15:14.800 --> 00:15:19.800
a jurisdictional issue or is it an affirmative defense?

358
00:15:20.130 --> 00:15:21.644
<v ->It is a matter of subject-matter jurisdiction,</v>

359
00:15:21.644 --> 00:15:24.230
whether the court has the ability to review this,

360
00:15:24.230 --> 00:15:27.011
and it even includes a religious institution's commenting

361
00:15:27.011 --> 00:15:29.440
and public commenting.
<v ->How many cases</v>

362
00:15:29.440 --> 00:15:33.853
that say that this kind of thing is a jurisdictional issue?

363
00:15:36.700 --> 00:15:38.890
<v ->Yes, I think under Hiles and Petrov,</v>

364
00:15:38.890 --> 00:15:40.130
this court has said that.

365
00:15:40.130 --> 00:15:42.620
And there in Hiles specifically,

366
00:15:42.620 --> 00:15:44.440
that religion held a press conference,

367
00:15:44.440 --> 00:15:47.020
deeming the agreed party from the religious tribunal

368
00:15:47.020 --> 00:15:47.853
and how bad their actions were.

369
00:15:47.853 --> 00:15:50.450
<v ->Didn't Hiles distinguish.</v>

370
00:15:50.450 --> 00:15:52.840
I understand you may be right

371
00:15:52.840 --> 00:15:56.010
that there may be some pruning based on complaints

372
00:15:56.010 --> 00:15:58.630
about how the internal process of the church

373
00:15:58.630 --> 00:16:01.330
dealt with things, but Hiles drew a distinction

374
00:16:01.330 --> 00:16:03.860
once they made public statements

375
00:16:03.860 --> 00:16:07.600
and they could impose responsibility

376
00:16:07.600 --> 00:16:09.340
once they went outside of the process,

377
00:16:09.340 --> 00:16:11.770
the church went outside of the process

378
00:16:11.770 --> 00:16:14.180
that that could be subject to liability.

379
00:16:14.180 --> 00:16:16.120
Isn't that what happens here

380
00:16:16.120 --> 00:16:18.780
when statements are made to that reporter?

381
00:16:18.780 --> 00:16:21.120
<v ->No, because the Dallas Norms require the church</v>

382
00:16:21.120 --> 00:16:22.940
to publish its findings publicly,

383
00:16:22.940 --> 00:16:24.420
even in the secular community.

384
00:16:24.420 --> 00:16:26.610
And they require the communications director of the church,

385
00:16:26.610 --> 00:16:28.435
the actor here, to hold objectively

386
00:16:28.435 --> 00:16:31.220
and give due process to accused priests

387
00:16:31.220 --> 00:16:33.830
who have not yet been termed, quote, "credibly accused."

388
00:16:33.830 --> 00:16:34.663
He had to answer

389
00:16:34.663 --> 00:16:35.496
to that one.
<v ->Again,</v>

390
00:16:35.496 --> 00:16:36.750
I wanna push you on this.

391
00:16:36.750 --> 00:16:41.130
So if the Dallas Norms require public statements,

392
00:16:41.130 --> 00:16:45.020
does that mean the church is immune

393
00:16:46.088 --> 00:16:49.300
from any kind of liability for anything it says

394
00:16:49.300 --> 00:16:52.993
so that it can act with total impunity?

395
00:16:54.300 --> 00:16:56.030
I don't know if this is true or not,

396
00:16:56.030 --> 00:16:57.440
what they said to that reporter,

397
00:16:57.440 --> 00:17:01.950
but say it's a out-and-out lie and they know it,

398
00:17:01.950 --> 00:17:06.870
is because the Dallas Statements require a public statement,

399
00:17:06.870 --> 00:17:08.500
they're now protected?

400
00:17:08.500 --> 00:17:09.860
<v ->It depends on the statement,</v>

401
00:17:09.860 --> 00:17:11.052
if it's about whether a clergy member

402
00:17:11.052 --> 00:17:12.828
was or was not credibly accused,

403
00:17:12.828 --> 00:17:15.550
as defined by the Vatican and the Dallas Norms,

404
00:17:15.550 --> 00:17:16.650
that is protected.

405
00:17:16.650 --> 00:17:19.037
If however, the spokesperson said,

406
00:17:19.037 --> 00:17:20.926
"by the way, this individual, he's murdered three people,

407
00:17:20.926 --> 00:17:24.080
he's committed these frauds," that would not be protected,

408
00:17:24.080 --> 00:17:26.110
that's way afield of the disciplinary system

409
00:17:26.110 --> 00:17:28.230
and abuse victim support system.

410
00:17:28.230 --> 00:17:30.165
Same thing as whether the rabbis were lying

411
00:17:30.165 --> 00:17:31.123
about whether the business

412
00:17:31.123 --> 00:17:31.956
was kosher-
<v ->So, wait.</v>

413
00:17:31.956 --> 00:17:32.960
So wait, so wait.

414
00:17:32.960 --> 00:17:36.013
So if a priest commits a murder,

415
00:17:37.090 --> 00:17:40.750
then that's not under the religious exemption,

416
00:17:40.750 --> 00:17:42.830
they were the, what is it called, again?

417
00:17:42.830 --> 00:17:47.370
I keep losing this phrase, the religious doctrine, right?

418
00:17:47.370 --> 00:17:49.070
It's not under that.
<v ->It's autonomy doctrine.</v>

419
00:17:49.070 --> 00:17:50.520
<v ->Religious autonomy doctrine.</v>

420
00:17:50.520 --> 00:17:52.210
But if a priest rapes a child,

421
00:17:52.210 --> 00:17:53.818
that is under the autonomy doctrine?

422
00:17:53.818 --> 00:17:54.651
<v ->No, pardon me</v>

423
00:17:54.651 --> 00:17:56.070
if the example was unclear.
<v ->What are you trying to say?</v>

424
00:17:56.070 --> 00:17:58.497
<v ->If the comment about the plaintiff was that,</v>

425
00:17:58.497 --> 00:18:01.702
"oh, this plaintiff has not alleged,

426
00:18:01.702 --> 00:18:03.600
his finding has not resulted

427
00:18:03.600 --> 00:18:04.790
in finding him credibly accused."

428
00:18:04.790 --> 00:18:06.350
If they made statements about the plaintiff,

429
00:18:06.350 --> 00:18:08.150
not having nothing to do with the process,

430
00:18:08.150 --> 00:18:09.720
of course that would be non-protected,

431
00:18:09.720 --> 00:18:11.880
but just what they are required on the Dallas Norms

432
00:18:11.880 --> 00:18:13.367
to inform the press,

433
00:18:13.367 --> 00:18:16.517
and this is a list of publicly-accused priest,

434
00:18:16.517 --> 00:18:19.877
and this is why the press reporter contacted the diocese was

435
00:18:19.877 --> 00:18:21.660
"why isn't this Bishop on your list?"

436
00:18:21.660 --> 00:18:23.240
The answer was, "under the Dallas Norms,

437
00:18:23.240 --> 00:18:25.370
he's not yet, quote, 'credibly accused,'

438
00:18:25.370 --> 00:18:26.770
and there has been no finding of that

439
00:18:26.770 --> 00:18:28.220
because the Pope dictates

440
00:18:28.220 --> 00:18:29.580
only the Bishop can make that finding

441
00:18:29.580 --> 00:18:30.960
and we're not there yet."

442
00:18:30.960 --> 00:18:31.793
<v ->But, okay.</v>

443
00:18:31.793 --> 00:18:33.460
So when you say we're not there yet,

444
00:18:34.690 --> 00:18:35.776
what are you talking about?

445
00:18:35.776 --> 00:18:37.720
Are you talking about the internal process of the church?

446
00:18:37.720 --> 00:18:40.830
Are you talking about the process of this lawsuit?

447
00:18:40.830 --> 00:18:41.900
<v Michael>The process of the church.</v>

448
00:18:41.900 --> 00:18:42.733
So first-
<v ->So we have to wait</v>

449
00:18:42.733 --> 00:18:45.390
for the church to resolve all that?

450
00:18:45.390 --> 00:18:46.750
<v ->The church's system,</v>

451
00:18:46.750 --> 00:18:47.843
it operates under its own timeliness

452
00:18:47.843 --> 00:18:49.387
and its own procedures.
<v ->Right.</v>

453
00:18:49.387 --> 00:18:51.913
And so the civil system just waits for that?

454
00:18:52.910 --> 00:18:55.020
<v ->The individual can always, from step zero,</v>

455
00:18:55.020 --> 00:18:57.330
and the church informs them, sue anyone,

456
00:18:57.330 --> 00:18:58.163
go report to the police

457
00:18:58.163 --> 00:18:58.996
on day one.
<v ->Yeah.</v>

458
00:18:58.996 --> 00:19:01.550
But I wanna know what to do with this motion to dismiss now,

459
00:19:01.550 --> 00:19:05.531
on counts 8 through 14 on the religious, you know,

460
00:19:05.531 --> 00:19:08.381
the religious, whatever, the religious autonomy doctrine.

461
00:19:09.580 --> 00:19:13.740
Where is the religious autonomy,

462
00:19:13.740 --> 00:19:14.730
how does that play out

463
00:19:14.730 --> 00:19:16.000
and how does that relate

464
00:19:16.000 --> 00:19:18.340
to your doctrine of present execution?

465
00:19:18.340 --> 00:19:19.600
<v ->The way that the Supreme Court has,</v>

466
00:19:19.600 --> 00:19:22.160
and the case law has played out,

467
00:19:22.160 --> 00:19:23.980
is that the individual can appeal

468
00:19:23.980 --> 00:19:25.000
within the religious system

469
00:19:25.000 --> 00:19:27.080
and here the church did reinvestigate everything

470
00:19:27.080 --> 00:19:29.680
in the Beilis Report that is cited in the complaint

471
00:19:29.680 --> 00:19:30.635
and the church ended up agreeing with the plaintiff,

472
00:19:30.635 --> 00:19:31.520
it listed this-
<v ->Okay,</v>

473
00:19:31.520 --> 00:19:32.900
so what does that have to do

474
00:19:32.900 --> 00:19:35.000
with the doctrine or present execution?

475
00:19:35.000 --> 00:19:39.200
<v ->Because here, that First-Amendment-protected process,</v>

476
00:19:39.200 --> 00:19:40.920
when someone disagrees with the timeliness

477
00:19:40.920 --> 00:19:42.540
or the way that it was implemented,

478
00:19:42.540 --> 00:19:46.680
cannot take that conduct and turn it also into a civil tort

479
00:19:46.680 --> 00:19:48.080
and then sue based upon it.

480
00:19:48.080 --> 00:19:51.160
And so a religious defendant should not be forced

481
00:19:51.160 --> 00:19:52.840
to face the burns of litigation,

482
00:19:52.840 --> 00:19:54.445
and it's a violation of the First Amendment.

483
00:19:54.445 --> 00:19:56.513
<v ->Can we just talk about that in a little more detail?</v>

484
00:19:56.513 --> 00:19:58.900
Because I certainly understand your argument

485
00:19:58.900 --> 00:20:00.820
about the review board

486
00:20:00.820 --> 00:20:03.540
and the internal process of the church

487
00:20:03.540 --> 00:20:08.250
and the First Amendment, and even perhaps on comments

488
00:20:10.080 --> 00:20:12.670
as it relates to credibility.

489
00:20:12.670 --> 00:20:17.223
But when somebody's out there spinning and saying,

490
00:20:17.223 --> 00:20:20.020
"oh, oh, and by the way, he retracted that,

491
00:20:20.020 --> 00:20:22.480
or he never said that," that's just spinning,

492
00:20:22.480 --> 00:20:25.023
that's not religious doctrine,

493
00:20:25.023 --> 00:20:27.980
that's not what happened with the review board.

494
00:20:27.980 --> 00:20:29.970
And there's contentions here

495
00:20:30.810 --> 00:20:33.347
that some of statements are,

496
00:20:33.347 --> 00:20:37.284
"well, he acknowledged that there was no abuse,"

497
00:20:37.284 --> 00:20:38.480
that's not review board,

498
00:20:38.480 --> 00:20:41.650
that's just trying to get a good soundbite

499
00:20:41.650 --> 00:20:42.697
in the (audio distorts)

500
00:20:42.697 --> 00:20:44.720
<v ->Again, though, that analysis is stepping</v>

501
00:20:44.720 --> 00:20:46.520
into how the church interprets the evidence

502
00:20:46.520 --> 00:20:47.353
before its poured.

503
00:20:47.353 --> 00:20:49.200
And specifically the plaintiff in this case,

504
00:20:49.200 --> 00:20:50.930
alleged in the complaint that, in fact,

505
00:20:50.930 --> 00:20:52.045
the investigator did have a report

506
00:20:52.045 --> 00:20:53.320
that said that the victim did recant

507
00:20:53.320 --> 00:20:55.260
as to this third cleric.

508
00:20:55.260 --> 00:20:56.812
Remember, the church immediately found credible

509
00:20:56.812 --> 00:20:59.570
the first two clergy members who were accused,

510
00:20:59.570 --> 00:21:01.310
the confusion was over the third

511
00:21:01.310 --> 00:21:03.170
and then the church did reinvestigate that

512
00:21:03.170 --> 00:21:04.790
after the press response,

513
00:21:04.790 --> 00:21:06.370
it took a year-long investigation

514
00:21:06.370 --> 00:21:08.050
and then ended up siding with the plaintiff.

515
00:21:08.050 --> 00:21:10.440
Also on disparaging comments,

516
00:21:10.440 --> 00:21:11.690
the plaintiff was never named,

517
00:21:11.690 --> 00:21:12.541
his anonymity was kept

518
00:21:12.541 --> 00:21:14.640
in all of these comments to the press.

519
00:21:14.640 --> 00:21:17.830
So a defamation claim without even naming the intended

520
00:21:17.830 --> 00:21:19.113
or the defamed person.

521
00:21:20.170 --> 00:21:23.640
And again, the norms require, the name Weldon was shared,

522
00:21:23.640 --> 00:21:24.630
and at that time,

523
00:21:24.630 --> 00:21:26.100
there had not been a finding of the,

524
00:21:26.100 --> 00:21:28.810
quote, "credibly accused," or a kosher determination,

525
00:21:28.810 --> 00:21:30.950
or a determination of another religious board.

526
00:21:30.950 --> 00:21:33.500
Here they hadn't made that determination yet.

527
00:21:33.500 --> 00:21:36.960
And reviewing the church's review of its own evidence

528
00:21:36.960 --> 00:21:39.440
through its process, forgive me,

529
00:21:39.440 --> 00:21:41.000
but the plaintiff's complaint is asking this court

530
00:21:41.000 --> 00:21:42.320
to trade its judicial robes

531
00:21:42.320 --> 00:21:44.680
for the vestments of a Bishop or a pontiff

532
00:21:44.680 --> 00:21:46.820
and to reinterpret these doctrines,

533
00:21:46.820 --> 00:21:48.147
which the First Amendment, the Supreme Court

534
00:21:48.147 --> 00:21:50.140
and this court have all held, it will not do,

535
00:21:50.140 --> 00:21:52.310
even if it sees an aggrieved party

536
00:21:52.310 --> 00:21:56.010
and perhaps otherwise a meritorious claim

537
00:21:56.010 --> 00:21:56.980
based on the complaint,

538
00:21:56.980 --> 00:21:59.730
it will not do so because that calls into question

539
00:21:59.730 --> 00:22:02.630
separation of church and state, which we find fundamental

540
00:22:02.630 --> 00:22:04.530
going back to the Adams Constitution,

541
00:22:04.530 --> 00:22:06.170
duplicated in the Federal Constitution

542
00:22:06.170 --> 00:22:08.359
and upheld in Hiles, Petrov,

543
00:22:08.359 --> 00:22:13.359
and the many First Amendment cases of the Supreme Court.

544
00:22:13.520 --> 00:22:17.030
This program also provides therapy payments,

545
00:22:17.030 --> 00:22:19.840
medical payments, payments for compensation,

546
00:22:19.840 --> 00:22:22.020
which is under the religious program here.

547
00:22:22.020 --> 00:22:24.300
And it's perfectly fine for the plaintiff to go there

548
00:22:24.300 --> 00:22:25.410
and report to the police,

549
00:22:25.410 --> 00:22:27.480
as the diocese here in the complaint

550
00:22:27.480 --> 00:22:29.590
and in the Beilis Report attached to the complaint,

551
00:22:29.590 --> 00:22:31.847
did forward everything in 2018

552
00:22:31.847 --> 00:22:34.160
to the district attorney's office.

553
00:22:34.160 --> 00:22:36.210
However, when someone is upset

554
00:22:36.210 --> 00:22:37.840
with the outcome of religious board,

555
00:22:37.840 --> 00:22:39.850
they cannot go sue the religion

556
00:22:39.850 --> 00:22:41.763
for the timeliness with which it came to its decision

557
00:22:41.763 --> 00:22:42.596
and the decision is-
<v ->That's not</v>

558
00:22:42.596 --> 00:22:43.970
what's going on here.

559
00:22:43.970 --> 00:22:44.880
What's going on here

560
00:22:44.880 --> 00:22:49.880
is counts 8 through 13 should be dismissed,

561
00:22:51.900 --> 00:22:55.400
not because they're going to litigate

562
00:22:55.400 --> 00:22:58.253
what the review board did, but they have to be dismissed,

563
00:22:58.253 --> 00:23:02.860
even though there were statements made to the press

564
00:23:02.860 --> 00:23:06.480
that didn't relate to the mission of the review board,

565
00:23:06.480 --> 00:23:09.193
but were commenting on statements

566
00:23:09.193 --> 00:23:12.100
that the victim allegedly made.

567
00:23:12.100 --> 00:23:14.710
And it's not whether that it falls into it,

568
00:23:14.710 --> 00:23:18.000
or doesn't fall into First Amendment protection.

569
00:23:18.000 --> 00:23:19.187
It said, you are saying,

570
00:23:19.187 --> 00:23:22.620
"no, 8 through 13, be dismissed."

571
00:23:22.620 --> 00:23:23.720
Not-
<v ->That-</v>

572
00:23:23.720 --> 00:23:24.800
<v ->It shouldn't be litigated</v>

573
00:23:24.800 --> 00:23:29.320
whether or not those statements exist.

574
00:23:29.320 --> 00:23:31.590
<v ->That's correct, because the religious guidelines here</v>

575
00:23:31.590 --> 00:23:33.790
on record of appendix volume 2,

576
00:23:33.790 --> 00:23:37.900
it's 119 through 138, and specifically page 129,

577
00:23:37.900 --> 00:23:39.730
provides that the religion

578
00:23:39.730 --> 00:23:42.250
or the diocese here must communicate its findings

579
00:23:42.250 --> 00:23:45.117
to the press-
<v ->What if it said,</v>

580
00:23:45.117 --> 00:23:48.717
"you must yell fire in a crowded theater?"

581
00:23:49.620 --> 00:23:53.490
You can just have anything in there

582
00:23:53.490 --> 00:23:56.800
that eliminates a defamation to it?

583
00:23:56.800 --> 00:23:57.890
<v ->No, that would cross over</v>

584
00:23:57.890 --> 00:23:59.598
into the conduct cases and analysis.

585
00:23:59.598 --> 00:24:03.460
Here, it's simply, and in Hiles, the religious group there,

586
00:24:03.460 --> 00:24:05.810
the Episcopal Church went out on their own

587
00:24:05.810 --> 00:24:07.350
and held a press conference

588
00:24:07.350 --> 00:24:10.520
and said the misdeeds of how bad the actor was

589
00:24:10.520 --> 00:24:12.220
in that case and said,

590
00:24:12.220 --> 00:24:13.770
and then was sued for that defamation

591
00:24:13.770 --> 00:24:16.380
and this court said it is perfectly natural

592
00:24:16.380 --> 00:24:18.930
for a religion to have formed the community on discipline

593
00:24:18.930 --> 00:24:20.270
concerning its senior members.

594
00:24:20.270 --> 00:24:22.940
And in the Catholic Church discipline survives even death.

595
00:24:22.940 --> 00:24:24.530
This individual was exhumed,

596
00:24:24.530 --> 00:24:26.440
his body was moved out the state,

597
00:24:26.440 --> 00:24:27.790
monuments were taken down,

598
00:24:27.790 --> 00:24:29.730
a hospital named after him was renamed,

599
00:24:29.730 --> 00:24:31.170
the disciplinary process,

600
00:24:31.170 --> 00:24:33.810
people are canonized and disciplined even after death.

601
00:24:33.810 --> 00:24:35.620
This is a disciplinary process.

602
00:24:35.620 --> 00:24:39.420
Disciplinary systems have always been found to be protected

603
00:24:39.420 --> 00:24:41.770
and even comments on them, as this court said in Hiles.

604
00:24:41.770 --> 00:24:43.780
Again, here, just response to a reporter,

605
00:24:43.780 --> 00:24:46.050
Hiles, an affirmative press conference

606
00:24:46.050 --> 00:24:49.450
describing the immorality in the findings, not defamatory,

607
00:24:49.450 --> 00:24:52.240
even when alleged one to be conspiratorial there,

608
00:24:52.240 --> 00:24:53.580
there was a million dollar bequest

609
00:24:53.580 --> 00:24:55.967
to that clergy member's church, and he said,

610
00:24:55.967 --> 00:24:59.010
"this is all fixed to take it up to the diocese."

611
00:24:59.010 --> 00:25:01.130
This court said, "We're not gonna get into that,

612
00:25:01.130 --> 00:25:02.010
we're not gonna examine

613
00:25:02.010 --> 00:25:04.050
whether it was a right or wrong determination

614
00:25:04.050 --> 00:25:05.810
even if we can read your principles

615
00:25:05.810 --> 00:25:07.510
and understand them clearly,

616
00:25:07.510 --> 00:25:09.460
we're gonna follow the Supreme Court,

617
00:25:09.460 --> 00:25:12.280
we're not getting involved, just like in the kosher cases,

618
00:25:12.280 --> 00:25:15.350
the divorce gett cases, Petrov and Hiles,

619
00:25:15.350 --> 00:25:17.180
we will not embroil this court

620
00:25:17.180 --> 00:25:20.040
in matters when there's any ecclesiastic concern."

621
00:25:20.040 --> 00:25:22.040
Unlike a property dispute,

622
00:25:22.040 --> 00:25:23.680
here this is a disciplinary system,

623
00:25:23.680 --> 00:25:25.750
and it can't be reexamined.

624
00:25:25.750 --> 00:25:26.700
For that reason,

625
00:25:26.700 --> 00:25:29.740
counts 8 through 14 should also be dismissed

626
00:25:29.740 --> 00:25:33.010
and the decision of the motion judge should be reversed.

627
00:25:33.010 --> 00:25:33.983
Thank you.

628
00:25:33.983 --> 00:25:35.127
<v ->Thank you.</v>

629
00:25:35.127 --> 00:25:36.877
(clears throat) Attorney Pelletier.

630
00:25:38.390 --> 00:25:39.223
<v ->Morning.</v>

631
00:25:40.420 --> 00:25:42.950
Chief Justice Budd, members of the court.

632
00:25:42.950 --> 00:25:46.220
I'm here on behalf of John Doe.

633
00:25:46.220 --> 00:25:48.048
I'm gonna begin with premise

634
00:25:48.048 --> 00:25:49.877
that one of the justices raised,

635
00:25:49.877 --> 00:25:53.380
and that is that according to the defendants,

636
00:25:53.380 --> 00:25:56.800
the issue involving religious autonomy,

637
00:25:56.800 --> 00:26:00.360
they perceive to be one of subject-matter jurisdiction.

638
00:26:00.360 --> 00:26:03.210
This court has said very clearly

639
00:26:03.210 --> 00:26:05.840
that the issue of subject-matter jurisdiction

640
00:26:05.840 --> 00:26:08.690
is not subject to interlocutory appeal

641
00:26:08.690 --> 00:26:12.950
even after summary judgment record has been developed.

642
00:26:12.950 --> 00:26:17.950
Certainly, the very limited doctrine of present execution

643
00:26:19.070 --> 00:26:23.410
should not apply under the circumstances of this case

644
00:26:23.410 --> 00:26:24.830
when they are alleging

645
00:26:24.830 --> 00:26:27.890
that the issue is one of subject-matter jurisdiction.

646
00:26:27.890 --> 00:26:30.960
Frankly, that should end the inquiry, because-

647
00:26:30.960 --> 00:26:32.420
<v ->Don't we have to wrestle with the issue</v>

648
00:26:32.420 --> 00:26:35.020
of whether it's immunity from suit

649
00:26:35.020 --> 00:26:37.060
or immunity from liability?

650
00:26:37.060 --> 00:26:39.670
'Cause if it's immunity from suit,

651
00:26:39.670 --> 00:26:42.287
then it would fit within present execution doctrine.

652
00:26:42.287 --> 00:26:44.719
<v ->That's the first series of claims,</v>

653
00:26:44.719 --> 00:26:47.051
I'm referring to the second series of claims,

654
00:26:47.051 --> 00:26:50.530
which is the religious autonomy portion.

655
00:26:50.530 --> 00:26:55.340
And if the second set of claims,

656
00:26:55.340 --> 00:26:59.380
those related to the communications with the press

657
00:26:59.380 --> 00:27:02.910
are subject to subject-matter jurisdiction arguments,

658
00:27:02.910 --> 00:27:04.329
which is their argument,

659
00:27:04.329 --> 00:27:06.530
once that determination is made,

660
00:27:06.530 --> 00:27:09.040
that that portion of the complaint

661
00:27:09.040 --> 00:27:12.230
is not subject to the doctrine of present execution,

662
00:27:12.230 --> 00:27:14.620
the diocese will remain in the case

663
00:27:14.620 --> 00:27:16.630
and the case will proceed.

664
00:27:16.630 --> 00:27:21.630
And under those circumstances, rather than foster,

665
00:27:21.840 --> 00:27:26.840
it would foster piecemeal appellate litigation

666
00:27:28.310 --> 00:27:30.980
rather than restrict it.

667
00:27:30.980 --> 00:27:33.900
In terms of your inquiry on the first,

668
00:27:33.900 --> 00:27:38.470
what I'm calling the first set of claims, there is no suit,

669
00:27:38.470 --> 00:27:42.580
there is no case anywhere in the Commonwealth

670
00:27:42.580 --> 00:27:47.580
that addresses the issue of the common law determination

671
00:27:48.700 --> 00:27:52.160
of charitable immunity in a way that would suggest

672
00:27:52.160 --> 00:27:53.650
that its immunity from-
(microphone thuds)

673
00:27:53.650 --> 00:27:54.730
<v ->He read a footnote,</v>

674
00:27:54.730 --> 00:27:56.550
I don't have the footnote in front of me,

675
00:27:56.550 --> 00:27:57.500
but he read a footnote

676
00:27:57.500 --> 00:28:00.960
that talked about immunity from suit, didn't it?

677
00:28:00.960 --> 00:28:03.640
<v ->He read a footnote that talked about immunity from suit,</v>

678
00:28:03.640 --> 00:28:07.405
I believe, referencing not a situation such as this,

679
00:28:07.405 --> 00:28:12.405
in a situation that post dates chapter 231, section 85K.

680
00:28:13.660 --> 00:28:15.590
<v ->So it's loose language that was wrong,</v>

681
00:28:15.590 --> 00:28:16.542
is that what you're saying?

682
00:28:16.542 --> 00:28:18.170
<v ->I'm saying it's a footnote in a case</v>

683
00:28:18.170 --> 00:28:20.460
that has no application, frankly,

684
00:28:20.460 --> 00:28:22.710
to the issue of common law immunity

685
00:28:22.710 --> 00:28:25.800
under the circumstances that we have before us.

686
00:28:25.800 --> 00:28:28.300
And as I believe you noted,

687
00:28:28.300 --> 00:28:33.200
the concept that this common law immunity would be so global

688
00:28:33.200 --> 00:28:37.560
as to apply to the circumstances of this case.

689
00:28:37.560 --> 00:28:40.390
Also addressing the issue of intentional tort

690
00:28:40.390 --> 00:28:45.220
is extremely questionable, but it has not been decided.

691
00:28:45.220 --> 00:28:50.220
<v ->Well, the SJC is not decided whether the intentional torts</v>

692
00:28:52.130 --> 00:28:56.200
would fall within the pre-1971 immunity, right?

693
00:28:56.200 --> 00:28:57.260
<v ->That's correct.</v>

694
00:28:57.260 --> 00:29:00.751
Any intentional tort, nevermind the types of torts

695
00:29:00.751 --> 00:29:02.943
that we're talking about in this case.

696
00:29:03.930 --> 00:29:05.550
<v ->The second issue they raise</v>

697
00:29:05.550 --> 00:29:07.413
is more complicated tough, right?

698
00:29:08.480 --> 00:29:10.920
There's a lot in the complaint

699
00:29:10.920 --> 00:29:15.870
that's caught up with the internal disciplinary process

700
00:29:15.870 --> 00:29:20.010
and timing and you know, back and forth.

701
00:29:20.010 --> 00:29:22.820
Don't they have a point that some of that

702
00:29:22.820 --> 00:29:24.914
is beyond our jurisdiction

703
00:29:24.914 --> 00:29:29.200
and will get us excessively entangled

704
00:29:29.200 --> 00:29:33.390
in the church disciplinary and investigatory process?

705
00:29:33.390 --> 00:29:36.916
<v ->No, because the complaint contains the detail</v>

706
00:29:36.916 --> 00:29:40.330
of what happened at the review board process

707
00:29:40.330 --> 00:29:43.460
so that you can understand what happens thereafter.

708
00:29:43.460 --> 00:29:46.610
<v ->But again, it looks like it fits</v>

709
00:29:46.610 --> 00:29:49.453
within what Hiles talks about, which is,

710
00:29:51.204 --> 00:29:53.730
we don't want the civil courts to be caught up

711
00:29:53.730 --> 00:29:57.110
in policing the internal.

712
00:29:57.110 --> 00:30:01.250
You can go to the civil courts, and you know,

713
00:30:01.250 --> 00:30:05.480
I find the first part of this not without basis,

714
00:30:05.480 --> 00:30:06.910
that you should be able.

715
00:30:06.910 --> 00:30:10.610
If priests are raping, you know, children,

716
00:30:10.610 --> 00:30:14.060
the civil courts can investigate those

717
00:30:14.060 --> 00:30:18.315
and prosecute them and hold the Bishop by,

718
00:30:18.315 --> 00:30:19.900
that part I don't have any trouble with,

719
00:30:19.900 --> 00:30:20.750
the second part though,

720
00:30:20.750 --> 00:30:22.820
they seem to have a pretty good point,

721
00:30:22.820 --> 00:30:25.770
which is, "we don't want the civil courts

722
00:30:25.770 --> 00:30:30.030
reviewing how the church's own processes went,"

723
00:30:30.030 --> 00:30:32.342
that's separate, we should stay out of that.

724
00:30:32.342 --> 00:30:33.364
<v ->I don't disagree,</v>

725
00:30:33.364 --> 00:30:36.266
I think the problem is the analysis

726
00:30:36.266 --> 00:30:39.140
that that's what the theory of liability is.

727
00:30:39.140 --> 00:30:41.520
The theory of liability in this case

728
00:30:41.520 --> 00:30:43.372
is not with respect to what happened

729
00:30:43.372 --> 00:30:45.840
at the review board itself,

730
00:30:45.840 --> 00:30:49.700
but what happened when an inquiry was made,

731
00:30:49.700 --> 00:30:51.530
and this is different than them going out

732
00:30:51.530 --> 00:30:53.900
and presenting a press conference,

733
00:30:53.900 --> 00:30:58.240
an inquiry was made by an outside individual

734
00:30:58.240 --> 00:31:00.040
as to what happened

735
00:31:00.040 --> 00:31:02.620
and why certain things weren't done.

736
00:31:02.620 --> 00:31:07.620
The response to that inquiry was documented in emails,

737
00:31:08.420 --> 00:31:12.100
the response to that inquiry is where the defamation lies,

738
00:31:12.100 --> 00:31:14.230
not in what happened-
<v ->But again,</v>

739
00:31:14.230 --> 00:31:19.140
it's based on what's going on in their own processes

740
00:31:19.140 --> 00:31:20.940
and whether they're telling the truth

741
00:31:20.940 --> 00:31:23.093
about their own processes, I guess.

742
00:31:25.640 --> 00:31:28.850
It seems like Hiles seems to cover that though,

743
00:31:28.850 --> 00:31:29.683
doesn't it?
<v ->Well, the process</v>

744
00:31:29.683 --> 00:31:33.190
had theoretically been completed.

745
00:31:33.190 --> 00:31:34.310
The process had been completed

746
00:31:34.310 --> 00:31:36.740
as far as they were concerned.

747
00:31:36.740 --> 00:31:39.620
There was a letter that was written by the review board

748
00:31:39.620 --> 00:31:43.237
and I believe, in the letter itself the chairman says,

749
00:31:43.237 --> 00:31:45.950
"we're done, now this goes to the Bishop."

750
00:31:45.950 --> 00:31:48.080
<v ->Right.</v>
<v ->And then it was done</v>

751
00:31:48.080 --> 00:31:49.425
as far as the church was concerned.

752
00:31:49.425 --> 00:31:52.200
<v ->But let me, along these lines</v>

753
00:31:53.410 --> 00:31:57.720
where I'm getting a little bit confused on this

754
00:31:57.720 --> 00:32:01.740
is that you basically have two types of statements, right?

755
00:32:01.740 --> 00:32:05.520
That those based in counts 8 through 14 on,

756
00:32:05.520 --> 00:32:09.730
one is the statement regarding the findings

757
00:32:11.475 --> 00:32:14.910
of the review board, and then the second one

758
00:32:14.910 --> 00:32:16.900
is the statements regarding the substance

759
00:32:16.900 --> 00:32:18.313
of those allegations.

760
00:32:19.150 --> 00:32:22.060
And it seems what I'm struggling with

761
00:32:22.060 --> 00:32:24.730
is that this first class would seem to require

762
00:32:24.730 --> 00:32:28.570
that we determine whether that review board made a finding,

763
00:32:28.570 --> 00:32:31.160
in which case we would be rendering an opinion

764
00:32:31.160 --> 00:32:35.370
on what the Board did or didn't do

765
00:32:35.370 --> 00:32:37.403
within their own processes.

766
00:32:38.740 --> 00:32:41.610
<v ->The review board wrote a letter that was very simple.</v>

767
00:32:41.610 --> 00:32:43.080
We're not asking the court

768
00:32:43.080 --> 00:32:46.863
to consider what the review board said.

769
00:32:47.740 --> 00:32:51.130
There is a letter and it is very simple

770
00:32:51.130 --> 00:32:53.823
and that is what was given to the Bishop,

771
00:32:55.210 --> 00:32:57.640
that is what is before the court,

772
00:32:57.640 --> 00:33:01.970
the efforts now to say the letter doesn't say what it says,

773
00:33:01.970 --> 00:33:05.631
is essentially attempting to change the terminology

774
00:33:05.631 --> 00:33:08.067
in the letter, but the letter is there

775
00:33:08.067 --> 00:33:10.490
and the letter is evidence.

776
00:33:10.490 --> 00:33:15.230
Add on to that the fact that the church itself engaged,

777
00:33:15.230 --> 00:33:19.490
retired Justice Peter Villas conducted an investigation

778
00:33:19.490 --> 00:33:24.490
and he made an determination which was adopted by the church

779
00:33:25.020 --> 00:33:27.130
and adopted by the bishop,

780
00:33:27.130 --> 00:33:32.130
which clearly says that Bishop Weldon was credibly accused.

781
00:33:34.190 --> 00:33:37.857
<v ->I'm looking at paragraph 40 in your complaint.</v>

782
00:33:37.857 --> 00:33:40.890
"Defendants owed or assumed duties

783
00:33:40.890 --> 00:33:43.267
to report plaintiff's allegation," that part's easy,

784
00:33:43.267 --> 00:33:45.650
"properly investigate the complaint,

785
00:33:45.650 --> 00:33:48.390
accurately document their investigation,"

786
00:33:48.390 --> 00:33:51.680
that seems problematic, "refrain from falsifying

787
00:33:51.680 --> 00:33:54.040
or altering the documentation relevant

788
00:33:54.040 --> 00:33:55.650
to their investigation.

789
00:33:55.650 --> 00:33:58.610
Accurately convey the results of their investigation,

790
00:33:58.610 --> 00:34:01.490
refrain from misrepresenting allegations or results

791
00:34:01.490 --> 00:34:04.900
of their investigation to the public and the press."

792
00:34:04.900 --> 00:34:09.030
Isn't that what we're not supposed to get involved in?

793
00:34:09.030 --> 00:34:11.570
'Cause it's like redoing their,

794
00:34:11.570 --> 00:34:14.690
it's basically talking about how they did it

795
00:34:15.610 --> 00:34:17.003
and how they described it,

796
00:34:17.951 --> 00:34:21.500
that seems like that's Hiles, why am I wrong there?

797
00:34:21.500 --> 00:34:23.200
I just don't get it.

798
00:34:23.200 --> 00:34:26.180
<v ->Again, because I suppose there's some language in there</v>

799
00:34:26.180 --> 00:34:28.080
that might be problematic to the extent

800
00:34:28.080 --> 00:34:30.770
that it purports to suggest that-

801
00:34:30.770 --> 00:34:33.540
<v ->Well, isn't all of what I just read, problematic?</v>

802
00:34:33.540 --> 00:34:35.353
<v ->Not in my view, Your Honor, because again,</v>

803
00:34:35.353 --> 00:34:38.580
we're not talking about the process itself which,

804
00:34:38.580 --> 00:34:41.734
according to Judge Lewis, wasn't followed.

805
00:34:41.734 --> 00:34:42.690
<v Scott>But you are talking</v>

806
00:34:42.690 --> 00:34:46.360
about accurately document their investigation,

807
00:34:46.360 --> 00:34:47.290
refrain from-
<v ->But that-</v>

808
00:34:47.290 --> 00:34:48.559
<v Scott>Falsifying or altering</v>

809
00:34:48.559 --> 00:34:51.660
the documentation relevant to the-

810
00:34:51.660 --> 00:34:52.493
<v ->That-</v>
<v ->Accurately convey</v>

811
00:34:52.493 --> 00:34:54.586
the results of their investigation,

812
00:34:54.586 --> 00:34:58.000
it seems like it's all about their investigation.

813
00:34:58.000 --> 00:35:01.690
<v ->To the extent that the term investigation is utilized,</v>

814
00:35:01.690 --> 00:35:04.910
a portion of that relates to what happened

815
00:35:04.910 --> 00:35:08.040
and perhaps investigation is not the proper term.

816
00:35:08.040 --> 00:35:11.920
Once Mr. Parnass made his inquiry,

817
00:35:11.920 --> 00:35:16.611
there was then an entirely separate scenario,

818
00:35:16.611 --> 00:35:20.800
which involved counsel, it wasn't the review board,

819
00:35:20.800 --> 00:35:24.300
it was counsel, the director of communications,

820
00:35:24.300 --> 00:35:26.700
the director of safety for the church,

821
00:35:26.700 --> 00:35:28.410
it was a new person.

822
00:35:28.410 --> 00:35:33.410
They allegedly conducted some form of investigation

823
00:35:33.630 --> 00:35:36.420
so as to allow them to respond

824
00:35:36.420 --> 00:35:39.200
to the inquiries of Mr. Parnass,

825
00:35:39.200 --> 00:35:41.710
that's completely independent of what happened

826
00:35:41.710 --> 00:35:42.920
at the review board.

827
00:35:42.920 --> 00:35:44.840
And nowhere in their-

828
00:35:44.840 --> 00:35:46.250
<v ->Well, Mr. Parnass,</v>

829
00:35:46.250 --> 00:35:47.510
is he the reporter from the-

830
00:35:47.510 --> 00:35:48.343
<v ->Yes, yes.</v>

831
00:35:48.343 --> 00:35:49.176
<v ->Very good.</v>

832
00:35:49.176 --> 00:35:52.570
He wants to know what the church has found

833
00:35:52.570 --> 00:35:55.050
about the Bishop.
<v ->Right.</v>

834
00:35:55.050 --> 00:35:58.057
<v ->He may have a business in that, but the courts are,</v>

835
00:36:00.976 --> 00:36:04.210
we don't create liability out of that, right?

836
00:36:04.210 --> 00:36:07.210
Because we wanna keep ourselves separate

837
00:36:07.210 --> 00:36:09.320
from their investigatory processes.

838
00:36:09.320 --> 00:36:10.780
I mean, the reporter may wanna see

839
00:36:10.780 --> 00:36:14.280
whether they're living up to their own terms,

840
00:36:14.280 --> 00:36:18.058
but that's different than the civil court system, isn't it?

841
00:36:18.058 --> 00:36:21.407
<v ->I think there's a separation once they begin to respond</v>

842
00:36:21.407 --> 00:36:23.831
and create a false narrative.

843
00:36:23.831 --> 00:36:25.684
<v ->It isn't, doesn't Hiles say the exact,</v>

844
00:36:25.684 --> 00:36:29.750
I mean, I may misreading Hiles, but I just went back to it.

845
00:36:29.750 --> 00:36:30.998
Doesn't Hiles say the exact opposite?

846
00:36:30.998 --> 00:36:33.892
They can make statements about it

847
00:36:33.892 --> 00:36:37.373
and they can even make untrue statements about it, right?

848
00:36:39.350 --> 00:36:40.560
<v Nancy>In this situation</v>

849
00:36:40.560 --> 00:36:42.898
and in response to the specific inquiry

850
00:36:42.898 --> 00:36:47.240
and making statements which are defamatory

851
00:36:47.240 --> 00:36:50.370
as to Mr. Doe, which is what they did,

852
00:36:50.370 --> 00:36:53.910
if they simply said, "no, that isn't what we found."

853
00:36:53.910 --> 00:36:56.563
<v ->But isn't that what Hiles said they can do?</v>

854
00:36:57.910 --> 00:37:02.360
Am I misreading Hiles or are you saying Hiles is wrong?

855
00:37:02.360 --> 00:37:03.720
<v ->I'm not saying Hiles is wrong,</v>

856
00:37:03.720 --> 00:37:08.410
I'm saying that this takes one step beyond.

857
00:37:08.410 --> 00:37:09.243
<v Scott>Why?</v>

858
00:37:09.243 --> 00:37:11.713
<v ->Because it's outside of the process that they-</v>

859
00:37:11.713 --> 00:37:12.930
<v Scott>Hiles's statement</v>

860
00:37:12.930 --> 00:37:15.313
is also outside of the process, right?

861
00:37:17.920 --> 00:37:20.300
In Hiles, don't they make some kind

862
00:37:20.300 --> 00:37:25.300
of potentially defamatory statement outside of the process?

863
00:37:25.504 --> 00:37:27.393
I don't remember in detail.

864
00:37:27.393 --> 00:37:29.590
<v ->I don't think it's outside of the process,</v>

865
00:37:29.590 --> 00:37:32.553
the same way that this is, even assuming-

866
00:37:32.553 --> 00:37:33.476
<v ->It's a statement-</v>
<v ->You can figure out-</v>

867
00:37:33.476 --> 00:37:36.400
<v Scott>It's a statement to a reporter, isn't it?</v>

868
00:37:36.400 --> 00:37:38.610
<v ->It's a statement made from the church out</v>

869
00:37:38.610 --> 00:37:41.220
as opposed to in response to an inquiry.

870
00:37:41.220 --> 00:37:42.079
So I think that-
<v ->So to you</v>

871
00:37:42.079 --> 00:37:42.912
that's the big difference,

872
00:37:42.912 --> 00:37:43.840
that one-
<v ->I think</v>

873
00:37:43.840 --> 00:37:46.270
there's a distinction to be made.

874
00:37:46.270 --> 00:37:49.200
The cases where the diocese

875
00:37:49.200 --> 00:37:53.240
through its communication director puts out information,

876
00:37:53.240 --> 00:37:56.840
arguably falls within their process

877
00:37:56.840 --> 00:37:59.630
but in response to an inquiry from the outside-

878
00:37:59.630 --> 00:38:02.270
<v Scott>The inquiry is a about their process.</v>

879
00:38:02.270 --> 00:38:04.510
<v ->Well, but that would mean that anybody</v>

880
00:38:04.510 --> 00:38:08.460
that asked a question about anything that goes on-

881
00:38:08.460 --> 00:38:10.790
<v ->No, the reporter's free to ask the question,</v>

882
00:38:10.790 --> 00:38:12.830
the reporter is free to call him a liar

883
00:38:12.830 --> 00:38:15.020
and do whatever he or she wants.

884
00:38:15.020 --> 00:38:15.853
The question is,

885
00:38:15.853 --> 00:38:20.853
do the judicial system create a remedy for that?

886
00:38:21.320 --> 00:38:23.120
<v ->And our position is yes, it does,</v>

887
00:38:23.120 --> 00:38:25.140
if you get to that level, but again,

888
00:38:25.140 --> 00:38:26.932
I'm going all the way back to the issue

889
00:38:26.932 --> 00:38:30.520
of whether this is an issue of subject-matter jurisdiction.

890
00:38:30.520 --> 00:38:32.630
We would be addressing this at this point-

891
00:38:32.630 --> 00:38:34.387
<v ->Mm-hmm.</v>
<v ->Because it shouldn't be</v>

892
00:38:34.387 --> 00:38:38.393
before this court under the doctrine of present execution.

893
00:38:42.400 --> 00:38:45.110
The court has no further questions?

894
00:38:45.110 --> 00:38:45.960
<v ->Everybody else?</v>

895
00:38:47.350 --> 00:38:48.183
Thank you very much.

896
00:38:48.183 --> 00:38:49.016
<v Nancy>Thank you.</v>