Can victims still come forward with decades old child sex crimes? California Court to decide in Quarry v. Doe 1 (Bishop of Oakland)

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By Kay Ebeling

Two crime victims in Los Angeles, both assaulted by the same Catholic priest - same period of time, same MO, even the same crime scene - are having two different experiences with the civil justice system, an imbalance the California Supreme Court could correct in the coming months in Quarry v. Doe 1. The first victim, Udo, filed a lawsuit during the one-year SOL window in 2003 in the state. So Udo has experienced some justice. The second victim, Ken, did not make the connection between his adult problems and the sexual assaults as a boy until 2008.

Today August 10 is the deadline in the Court for Church Attorneys to file “Opening Brief on the Merits” on Quarry v. Doe 1 (Bishop of Oakland), so briefs much like the justices will be reading, from both plaintiffs and the defense, are Parts 1 and 2 of this post. The remarkable similarities in the stories of Udo and Ken will be part three.

Both men lived through sexual assaults as teenagers at the hands of Rev. Thomas Sullivan while they were students at Loyola High School in the 1950s. Ken is waiting to see the outcome of the Quarry brothers' lawsuit against the Bishop of Oakland, as it will affect whether he, as well as hundreds of other crime victims around the state, will be able to continue pursuing justice. The Catholic Church's main argument to the Court to depublish Quarry is: Otherwise there will be more lawsuits.

Another case, or Appeals Court Decision, up for review regarding the statute of limitations on sex crime lawsuits, where third parties were negligent, in California is “KJ," where the Court website states: “Further briefing is deferred pending disposition in Quarry v. Doe 1, by this court.”

So a lot about the future for adult victims of pedophilia seeking justice hinges on the state Supreme Court decision in Quarry.

At City of Angels we've been perusing briefs filed by Defense and Plaintiffs in Quarry, and we've published select portions here, so readers can see what the State justices will be reading before the Court makes its decision. As is often the case here, between quotes from the documents are ALL CAPS COMMENTS, set apart with asterisk rows (**************) . These comments represent Kay Ebeling going “Aaarrgh” while reading and taking notes. Here at City of Angels we just publish the quotes and the notes together, because that's what makes a blog so much better than a corporate news outlet published story.

First from the law firm of Tobin & Tobin in San Francisco: Letter to the State Supreme Court requesting Depublication:

“We represent the Roman Catholic Archbishop of San Francisco, a corporation sole, and the Bishop of Monterey, in California, a corporation sole.”

Both diocese and archdiocese are named as defendants in Quarry.

“As a result these institutions have found themselves in a position of having to defend against claims that are thirty to forty years old, and in which most, if not all, of the material witnesses essential to defense, have long since died or whereabouts are unknown.”

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SO? THE PLAINTIFFS FACE THE SAME EXACT CHALLENGES, WITH MUCH LESS RESOURCES. It’s been decades since the crimes for the plaintiffs as well, and that's not stopping them…
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Undersigned part of JCCP 4359 aka Judicial Council Coordination Proceeding from Northern California.

TOBIN, continued:

“In addition we also represented several religious orders in The Clergy Cases III, as well as representing several defendants in the Southern California proceedings knows as Clergy Cases I and II. All in all we represented defendants in more than 150 cases in the three proceedings.

“We are writing today to urge the Court to depublish the recent decision of the First Appellate District in Terry Quarry et al v. Doe 1. because the 1st Appellate ignored Shirk v Vista Unified School District And because it ‘squarely contradicted’ the Second Appellate decision in Hightower v Roman Catholic Bishop of Sacramento

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OKAY THAT EXPLAINS THE CHURCH ATTORNEYS’ MOTIVES
Remember: (Nothing to do with Justice, just avoiding more lawsuits.)
REMEMBEER: This is not about plaintiffs suing priests, it’s about suing the corporations (archdioceses) who aided and abetted the priests.
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TOBIN letter continued:

TOBIN says Legislature revived ONLY those claims that had expired before January 1, 2003. “The Legislature drew a clear distinction between claims that were time barred and those that were not.

Church Attorneys at the Tobin firm say the Second District was right in saying: “Claims against a third party were barred on the plaintiff’s 26th birthday, except where conditions allowed filing until December 31, 2003.”

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THE CHURCH WANTS THE SUPREME COURT TO IGNORE AN ENTIRE CLASS OF CRIME VICTIMS. Quarry affects one small population of crime victims, anyone who turned 26 before 2003 and experienced delayed discovery after 2003. Anyone younger than this small population of crime victims would be covered by 340.1, and anyone who experienced delayed discovery before 2003 would be covered by 340.1. Just the older victims would be left out. WHERE IS THE OUTRAGED AARP ON THIS ISSUE?

A State Court Decision to review and change Quarry would result in this small population of aging survivors, who likely need help as bad as anyone, being singled out as one small group inside one large group of crime victims, the rest of whom are able to experience justice.

WHY ARE WE NEGOTIATING AND DISCRIMINATING THE OLDSTERS OUT?

Just like in New York Child Victims Act, the legislators amended the bill to make the cutoff age 53, just wrote into the bill unequal justice for older victims, this same age group and class of crime victims the Catholic Church is fighting so hard to keep from coming forward in California.

MAKES YOU WONDER WHY WOULD THEY WANT SO BADLY TO LEAVE OUT THIS CLASS OF CRIME VICTIMS?

Arbitrarily - or if not arbitrarily, then specifically? To rescue the financial ass-sets of the church in archdioceses around the state, not to consider the needs of the crime victims.

SHOULD THE CALIFORNIA SUPREME COURT BE BLOCKING JUSTICE?

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Tobin letter for the bishops continued:

“The new delayed discovery rule does not revive Hightower’s lapsed claims.”

TOBIN: “Hightower with its “Ambiguous one-year revival window” has provided guidance as to meaning and operation of Section 340.1 for three years.”

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YEAH THAT'S PART OF THE PROBLEM
Local courts are throwing out cases based on Hightower, which is not only not a typical post 2003 case. Hightower was not even a post 2003 case to begin with…
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Tobin Law Firm Letter continued:
“Quarry decision announced an astonishing - and unsupportable - rule that a cause of action for childhood sexual abuse may accrue multiple times.

“Retroactive application means people who discover their adult trauma from the molestation after the effective date of the Bill, will have three years from: the date the victim discovers or should have discovered that trauma was caused by childhood abuse.”

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HMM, TOBIN USES THE ABOVE QUOTE TO PROVE THE LEGISLATURE MEANT TO MAKE A DISTINCTION BETWEEN TIME BARRED AND NOT TIME BARRED,
I think it’s more likely the Legislature recognized there would be more cases after 2003.

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Letter from Tobin & Tobin signed Paul E. Gaspari, Tobin & Tobin San Francisco

NEXT:
For the plaintiffs:

JEFF ANDERSON RESPONDS:

The letterhead of Anderson & Associates in St. Paul, Minnesota, reads: “Attorneys & Counselors at Law, Advocacy Nationwide”
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ANDERSON: April 17 2009

“The Quarry claims didn't accrue until 2006, after the age 26 affirmative defense was taken away by the Legislature. “

“Further Quarry correctly found that statutes of limitations are simply procedural rules.”

There is no need to review Quarry.

“Quarry deals with an important public issue - child sex abuse - and Quarry makes a significant contribution to the legal literature on 340.1. Accordingly it should remain published.”

Anderson writes on behalf of NAPSAC and NCVV:

“NAPSAC is a nonprofit dedicated to legislative and cultural change, protecting victims’ rights through the criminal justice system, and providing resources for survivors of sexual abuse.”

“NAPSAC’s mission of preventing child abuse and protecting victims’ rights gives it a profound interest in this case.”

In Quarry: “The cut off never had a chance to operate on the Quarry plaintiffs’ claims. From 1999 to 2002 340.1 contained an outside limit - the plaintiff’s 26th birthday.

So, “If someone discovered their cause of action and filed suit, the defense had an affirmative defense that the defendant was over 26. As the Quarry plaintiffs didn't file their claims between 1999 and 2002, the age 26 affirmative defense never operated to cut off their claims.”

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NOTICE HOW STRAIGHT FORWARD the Anderson brief is.

Because when you're right, as the plaintiffs are in virtually all these cases against the Catholic Church, you don't have to obfuscate your message in befuddling language, as the Church does in all these cases.

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ANDERSON: “In 2002 the Legislature lifted the age 26 cut off when the institution knew about the sex offender and failed to take appropriate steps to prevent further abuse.”

“Plain language of the 1999 and 2002 amendments dictated that delayed discovery provisions apply, and the age 26 cut off does not apply- If the institution knew about the perpetrators.”

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THAT'S THE CRUCIAL POINT in this California decision: “If the institution knew about the perpetrators.”
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ANDERSON CONT’D:
“Generally, legislatures create the protection of a statute of limitations. SOLs are not, as the Bishop insinuates, something to which everyone has a right.”

“The Bishop was free to and did often raise the age 26 defense in court when the Legislature gave it that protection. After 2002, when the Legislature took that procedural protection away, it can’t be automatically raised against victims of child sex abuse.”

ANDERSON QUOTES UNITED STATES SUPREME COURT RULING 60 YEARS AGO:

“No one has a right to a statute of limitations, they are simply given by legislative grace. The statute of limitations as a “shelter” and “has never been regarded as what now is called a ‘fundamental’ right or what used to be called a ‘natural’ right of the individual. He may, of course, have the protection of the policy while it exists, but the history of please of limitation shows them to be good only by legislative grace, and to be subject to a relatively large degree of legislative control.”

ANDERSON CONTINUED:

“The Quarry defendants no longer have the absolute defense that they had for claims filed before 2002.”

Quarry conclusions came about because

“The Legislature amended 340.1 in recognition that the effects of childhood sexual abuse make it almost impossible for victims to come forward until years after the abuse.”

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AH, THAT'S WHAT THE ILLINOIS STATE SUPREME COURT MAY BE HEARING IN THE NEAR FUTURE AS WELL that you can’t have an SOL on child sex crimes because that plays right into the criminals’ MO.
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ANDERSON law firm letter continued:

“The Legislature recognized that child sex abuse victims suffer tremendous damage, and experience delayed onset of their injuries, both of which made the previous age 26 affirmative defense harsh. The (California) Legislature amended 340.1 to provide victims of childhood sexual abuse additional time to seek justice, to help prevent other children from being sexually abused, and to help ensure that the persons or entities responsible for the abuse - rather than the California taxpayer - bear the responsibility for the crimes of sex offenders.

“In enacting this amendment, the legislature recognized the profound physical and emotional impact that childhood sexual abuse has on its victims - e.g. severe depression, psychosomatic disorders, depression, and post traumatic stress disorder (“PTSD”)

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ME: HEY, JEFF, why did you put PTSD in quotation marks?
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Anderson: “Quarry correctly determined that the Legislature examined these impacts.”

“The Legislature in amending 340.1 also acknowledged that:

“Victims frequently do not connect their abuse to the harm that they have suffered as a result of such abuse.

This is confirmed through numerous studies which conclude that there is a delayed onset of injuries for childhood sexual abuse victims.

“This leaves a huge time bap between the abuse and the injuries.”

Other reasons for delayed discovery:

“Shame, guilt, threats by abuser, promises by abuser, confusion about the true nature of the abuse (thinking it was love instead of abuse), and lack of knowledge about an institutional defendant’s involvement.

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LACK OF KNOWLEDGE ABOUT AN INSTITUTIONAL INVOLVEMENT
There’s the clincher
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ANDERSON CONTINUED:

“Quarry correctly recognized that the Legislature amended 340.1 because of delayed discovery and the harsh results that an automatic age 26 cut off affirmative defense created

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“BECAUSE OF DELAYED DISCOVERY and the harsh results that an automatic age 26 cut off affirmative defense created”

IN OTHER WORDS THE PERPETRATORS CAN SCARE THEIR VICTIMS INTO NOT RESPONDING UNTIL WAY AFTER AGE 26. So any age cutoff date is weighted too heavily in favor of the criminals over their victims.
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ANDERSON letter re HIGHTOWER:

“The Hightower victim attempted to report the abuse to his Bishop in 1975. In Hightower the victim stated in his own criminal proceedings in 1982 that he suffered depression as a result of the abuse and that he sexually molested children because of his own abuse.”

“Hightower was not confronted with the same situation as Quarry”

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NOR IS HIGHTOWER LIKE ANY OTHER DELAYED DISCOVERY CASE THAT WOULD COME UP IN THE NEXT TWO DECADES TO WHICH THIS SUPREME COURT DECISION TO REVIEW OR NOT APPLIES
Anyone else is covered automatically, it’s just this small class who turned 26 before 2003 that the church is trying stupendously to keep from being able to file suit.
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Anderson: Quarry meets criteria to remain published:

“Quarry involves a legal issue of continuing public interest. The prevention of childhood sexual abuse is one of the paramount legal issues of our time. One of the tools to prevent childhood sexual abuse is an environment of laws which allow children and adults abused as children to come forward and expose those that hurt them.

“NAPSAC and the National Center for Victims of Crime are actively working in numerous states around the country, including California, in order to strengthen laws which prevent child sexual abuse. The numerous changes made to the statute of limitations for childhood sexual abuse is evidence that this is a legal issue of continuing interest.

“There have been no less than five separate major amendments to CCP 340.1 (California Civil Procedures law that is opened up these rights for victims), since it was enacted in 1986.

“These changes were made because of the public’s interest in this issue.

2ND CRITERIA OF QUARRY per Anderson:

It was “first decision where the Court was directly confronted with the issue of the impact of the 2002 amendments. Since Quarry another case JD has also interpreted these decisions.

QUARRY, says Anderson:

“Makes a significant contribution to the legal literature on childhood sexual abuse and particularly on California Civil Procedure 340.1, its history and application” to delayed discovery.

Signed on behalf of “NAPSAC and the National Center for the Victims of Crime”

By Michael Finnegan of Jeff Anderson’s firm in St. Paul Minnesota.

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CONTINUED at City of Angels 11 IN A MATTER OF COSMIC MOMENTS, after I get back from a doctor appointment this afternoon.

With more and more quotes from briefs the state Supreme Court will be reading, beginning with Church Attorney Lee Potts chiming in for the Archbishop of Los Angeles, Roger Mahony.

The Cardinal, of course, has an interest in Quarry...
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