At age five, 1954, "the Bishop" (Chicago's Cardinal Stritch) stood over me and said, I had to "stop babbling" about what the priest did to me. It took me 40 years to talk about it again. Today, I babble.

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Thursday, December 03, 2009

Pedophilia is a Privacy Right, and other Appeals arguments of the Catholic Church, as Franciscan Friars fight release of documents

By Kay Ebeling

Part 5: The Franciscans of Santa Barbara are filing mounds of briefs with the Courts of California, fighting release of documents regarding pedophile priests among the friars. The Church is now working to obstruct release of files that would reveal its own crimes, because, as they say in their appeal briefs, the cases settled “without any finding of fact on the plaintiffs’ allegations by the court.” In other words, the cases never went to trial, so the Church never has to release the documents.

Since the sex abuse cases against the Franciscans settled in 2006 before going to trial, documents that would have been evidence in a trial do not now have to be released, even though release of those documents was part of the settlement, church attorneys argue in their appeal. I know, it doesn't make sense, but it doesn't have to. The Church has endless funds, so it can file appeals endlessly, on any twist of logic, even the definition of a word.

We've seen this abuse of the legal system in Connecticut, Oregon, Los Angeles, Santa Barbara, and we'll likely see it in Delaware, even though plaintiffs in Wilmington settled their lawsuits this fall, in a pre-trial decision that includes … release of perpetrator priest personnel files. Don’t hold your breath.

Now the Franciscans and their lawyers are pursuing every legal avenue possible to prevent documents from being released to the public about Franciscan Friars’ sexual felonies. Documents the Franciscans promised to release in May 2006, when pedophile priest civil cases settled in Santa Barbara, have yet to be seen by anyone other than the Franciscan Friars and a reviewing judge. Now the religious order is appealing an April 2009 L.A. Superior Court Order.

So let’s take a break from the graphic details of those two lawsuits in Santa Barbara in Parts 1-4 of this story to look at this appeal, although there are about three more posts left to write based on the two new cases.

Attorneys for the six Franciscan Brothers who were proved to be pedophiles in 2006 but never convicted are now pursuing every avenue possible in the courts to prevent release of parts of their personnel files, thus holding up release of all documents that Santa Barbara plaintiffs thought they would get in May 2006.

The Church Appeals release of documents, surprise, surprise

If this story sounds familiar it’s because last April we covered those hearings and rulings that, “The files were to be publicly released (Order #JA0270-374) following interlocutory rulings on the issues of privacy and jurisdiction.” That quote is from one of the defendant’s own appeal brief. Even with a Court order, even though the Church knows all the arguments have all been made, Church Attorneys just keep going and going with appeals and appeals. Attorneys for the Catholic Church always have the resources to keep going and going. Plaintiff attorneys aren’t even being paid anymore for their work.


From Opening Brief of Appellant Franciscan Friars of California Inc. filed October 9, 2009

“Applicants seek relief from the order releasing their private and privileged records to the public,” begins one of the Church attorney briefs.

An attorney for the plaintiffs in Santa Barbara explained to me, “The next thing we do is file our responses, then they file replies, then oral argument in the Supreme Court of California, probably sometime in spring or summer.”

More from the perpetrators’ appeal:

“All of these appellants have a direct right to appeal given the res judicata impact of the court’s ruling on their protected interests.”

“Appellants who were not parties to the litigation…” ? who do they mean? Who are they protecting?

More from Opening Brief of Appellant Franciscan Friars of California Inc. filed October 9, 2009:

“Plaintiffs in these consolidated cases filed, and later settled, civil lawsuits against the Franciscan Friars of California, St. Anthony’s Seminary high school, and the Santa Barbara Boys’ Choir, alleging that they had been sexually abused while attending these institutions.

Appellants are:

Samuel Charles Cabot
David Johnson
Robert Van Handel
Vario Cimmarusti
Gus Krumm
Gary Pacheco

Franciscans or former Franciscans

The cases settled May 25, 2006 “without any finding of fact on the plaintiffs’ allegations by the court.”

(Court designated Judge Lichtman of Los Angeles the hearing officer. He spent three years reviewing documents, then issued his orders to release. )

“None of the appellants were served with this application.”

(In other words since it was the Franciscans who were sued, and these six guys are ex-Franciscan priests who were perpetrators and caused the lawsuits, the priests themselves aren’t really parties to the lawsuits, so they weren’t part of the settlement, so they can refuse to go along with the settlement agreement to release records. )

See how they twist things around. This circular logic is what you can expect to see on practically every appeal brief I’ve seen that was written by a church attorney:


The cases are settled, so there is no more case. The cases were settled without going to court, so there really is no admission of guilt or responsibility. The Church has just been giving away gazillions of dollars in pretrial settlements out of the goodness of its heart.

The church attorneys claim that during litigation before 2006, Judge Lichtman reviewed the files and “privacy objections by individual clergy members who were the subject of the personnel and confidential files were overruled given the compelling state interest in settlement.”


That's not the reason privacy objections were overruled, it was because of the compelling state interest in protecting children. Not "the state interest in a settlement," the state interest to protect children.

See how they turn things around?


“On November 7, 2005, the cases were released from the stay and all documents had been deposited in the document depository. The document depository was only accessible by the parties to the case. Depositions taken in the case were also the subject of a protective order.”


Here’s where you see the Church’s strategy:

The Church agrees to release documents that “would have been subject to discovery obligations in the litigation of the actions.”

“No third party privacy rights could be claimed by the Franciscans on documents deemed to affect ‘public safety issues relating to childhood sexual abuse’ or knowledge on the part of defendants of suspected childhood sexual abuse or the ‘cover up’ thereof.”

“Third party objections including those asserted by any defendant who is also an ALLEGED PERPETRATOR, are not bound by this contractual standard.” (Their emphasis)

“As such the Agreement between the parties to allow the hearing officer to consider ‘public interests’ does not apply to any objection raised by individual applicants.”

I think what the Church Attorneys are doing here is once again taking advantage of the overlapping entities of the Catholic Church

It’s set up perfectly to run a crime operation.
The perpetrators were Franciscan Friars, but they aren’t anymore and the party of the lawsuit was the Franciscans, so rulings on the lawsuit don't apply to the perpetrators.

The L.A. Archdiocese did this buck passing endlessly during the Clergy Cases that finally settled in 2007. It was the religious order, no it was the hospital, no it was the nuns, no it was the bishop.

Nobody takes responsibility, and they have endless legal resources to pass the buck and pass thebuck.

Welcome to the world of Catholic Church abuse of the justice system.


(NOTE: Several of these six perpetrators are living and working in communities around the country now. We have their last known addresses, but since this litigation, most of these perpetrators have … just disappeared into the landscape.)

More from the Perpetrators’ Brief, appealing release of documents for six Franciscan Friars who are also known pedophiles:

“Both the Franciscans and these appellants advised the hearing officer (that) their vows of poverty and vows of obedience left them no choice but to participate in psychotherapy if ordered to by their superiors.

“Their treaters had requested Franciscans’ input and oversight and ongoing consultation regarding the progress of these Friars.”

(April 2, 2009, appellants’ privilege objections were overruled and the documents ordered to be publicly released. The April 2, 2009, order overruled these appellants’ objections based on privacy.)

The defense appeal says:

“The psychotherapist-patient and physician-patient privilege objections were overruled.” because the information in the files is not “in rendering psychotherapy or treatment” The individuals knew the information was being released to the Franciscans.

The perpetrator priests appealed release of documents last May: “Expressly for the technical purpose of being added as parties to the litigation for purpose of appeal.”

(NEW TWIST: The perpetrators got their names out of the litigation during the lawsuits, now they want to add their names to the lawsuits, so they can appeal the decision.)

The Church is appealing the April 2009 order:
“In an abundance of caution, specifically to be added as parties to the proceeding in order to eliminate a technical and procedural issue on appeal.

Actually, two of these perps were parties in the original lawsuits.
So for the other four perpetrators who are doing this appeal, this is a back-door attempt to become parties to the lawsuits now.

Appellants filed their notice of appeal on May 26, 2009.


Any person having an interest recognized by law may appeal.

Here is the privacy issues and interests of the “appellants.”

“They are all named as ‘alleged perpetrators’ in the plaintiffs’ complaints.

“They filed various objections to the release of their personnel filesduring the course of the litigation.”

“And again after the litigation was settled.”


They appeared at court ordered hearings relating to their objections.

Pedophilia is a Privacy Right:

The Franciscan Friars pedophiles are appealing release of their files because of: “Their constitutional rights to privacy and enforcement of various privileges relating to highly personal and private records.”

(I.E., they think their pedophilia is private.)

“Privacy and privilege describe rights which require resolution of fact by trial.”

(I.E., these cases settled pre-trial, nothing has been proved.)

The writings in personnel files are a property right.

(Honest, they are bringing that argument out again.)

Church claims a “procedural interest” a “Question of Jurisdiction to decide these constitutional and other rights”

The Court Orders “Automatically deprived” the appellants of their “Substantive and procedural interests in their constitutional rights to privacy.”

That's all from the Church appeals brief.

We're talking about the crime of pedophilia taking place at a high school seminary in Santa Barbara where serial perpetrators molested dozens of children, not just the students. Some of the plaintiffs in the 2006 Franciscan cases were employed at the seminary as well.

And the Church has all the money and power it needs, so they'll probably just keep appealing and appealing, and we'll never see these documents until we're too old to be able to see them.

Such is justice in the United States today. Whoever has the most money wins.

The documents being released in Connecticut this week were sealed when those lawsuits settled, and it took The New York Times and three other newspapers to sue for their release, fighting the Church all the way to the U.S. Supreme Court. Considering that in Southern California you've got maybe two law firms, trying to get documents released. Lawyers for the plaintiffs already got paid all they're ever going to get paid in these cases, while the Church digs into its bottomless briefcase and keeps hiring more attorneys. Church appeals will go on for years.

So I don't believe we'll ever see any papers that the L.A. archdiocese and the Franciscan friars of Santa Barbara want to keep secret.

Unless somebody inside the Church leaks. And City of Angels is here for anyone who wants to leak secret documents.


The Way the Catholic Church has responded to its sex crimes has caused me to begin to lose my belief in everything the Catholic Church has delivered

Including the story of Christ.

The Catholic Church criminal activity will cause people to become totally turned off to Christianity, to Christ in total, as after all, it started in the Catholic Church. Is anyone who is really a Christian in the Vatican paying attention?

I posted this on November 29, 2009, edited a bit here:

Nothing out of the church the last two decades concerning our pedophile priest claims makes sense

The Church often responds by offering to send the victims to Therapy. The bishops are the ones who are sick perverts who didn't recognize sodomy of a six year old is wrong, not us, the crime victims.

Why is the Catholic Church so reverent and faithful towards psychology as the solution to this problem? Isn't that a little bit secular?

It makes a Christian victim truly question the truth about everything that has ever come out of the church, including the story of Christ.

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CER said...

The Bastards!!!

Anonymous said...

Mario Cimmarusti is still a priest and was recently sent to Broken Brother from Danville where he was located for many years.