Petition for Writ of Certiorari — Archdiocese of Milwaukee v. Superior Court of California

Supreme Court brief2004

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S

/ FILED

No, 031444 APR 13 2004

IN THE

SUPREME COURT OF THE UNITED STATES

MARCH TERM, 2004

ARCHDIOCESE OF MILWAUKEE

Petitioner,

VS.

SUPERIOR COURT OF CALIFORNIA,

Respondent,

and

ERIC NATHAN PAINO,

Real Party-In-Interest.

On Petition For Writ Of Certiorari To The Court of Appeals,

Fourth District, Of California

PETITION FOR WRIT OF CERTIORARI

MATTHEW J. FLYNN

Counsel of Record

O. THOMAS ARMSTRONG

DAVID P. MUTH

Counsel for Petitioner

QUARLES & BRADY LLP

411 EAST WISCONSIN AVENUE

MILWAUKEE, WI 53202-4497

(414) 277-5000

—

QUESTIONS PRESENTED FOR REVIEW

i.

DOES THE FREE EXERCISE CLAUSE OF

THE FIRST AMENDMENT PROHIBIT A

STATE FROM EXERCISING SPECIFIC

PERSONAL JURISDICTION OVER A NON-

RESIDENT RELIGIOUS ORGANIZATION

BASED SOLELY ON ITS RELIGIOUS

AUTHORITY TO DENY ITS CLERGY THE

RIGHT TO EMPLOYMENT BY A

SEPARATE RELIGIOUS ORGANIZATION

RESIDING IN THE FORUM STATE?

DOES THE DUE PROCESS CLAUSE

PERMIT THE EXERCISE OF SPECIFIC

PERSONAL JURISDICTION OVER A

NON-RESIDENT EMPLOYER BECAUSE IT

FAILS TO PREVENT OR HINDER AN

EMPLOYEE FROM ACCEPTING

EMPLOYMENT - FROM A_ SEPARATE

FORUM EMPLOYER WHERE MIT IS

FORESEEABLE THAT THE EMPLOYEE

MIGHT COMMIT A SPECIFIC TYPE OF

TORT WHILE EMPLOYED BY THE

SUBSEQUENT FORUM EMPLOYER?

PARTIES TO THE PROCEEDING

The following individuals and entities are parties to the

proceeding in the Court below: the Superior Court of

California, Respondent in this matter as required by California

mandamus procedure; Real Party-in-Interest Eric Nathan Paino,

an individual living in Orange County, California; the Roman

Catholic Bishop of Orange, a Diocese of the Roman Catholic

Church incorporated in California; the Archdiocese of

Milwaukee, an Archdiocese of the Roman Catholic Church

incorporated in Wisconsin; the Estate of Sigfried F. Widera; and

Does | through 100.

Petitioner, the Archdiocese of Milwaukee, has no parent

corporation, and there are no publicly held companies that hold

any stock of the Petitioner.

il

~~

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........cccccccccceccececeees i

PARTIES TO THE PROCEEDING ..........ccecccccesccsseccecesseeeees ii

EP TO INTE sissiseseisrsnsnrsisescscadsessresscenencsovarcerccavene lil

MMS OP PATER Coss csicevenverssosssecencsececencoosecsscensncsesess Vv

PETITION FOR WRIT OF CERTIORARI ........cccccceccscecceseceess |

EES RT en l

STATEMENT OF THE BASIS FOR JURISDICTION ........... 2

CONSTITUTIONAL PROVISIONS AND

BAPE E Re UVLO cnssuscossccsscncsscocsereceacsacossocvorenae 2

I cia ailsbiadsikts sia ld ssniisdssacasennavessananvesvane 3

PEPE RORMITE CF TEER CASE 0.0.....cccececcorscscsossessossscosesessscacones 5

A. Factual Background ..............c..ccceeeee 5

B. Underlying General

Jurisdictional Facts..............cccccccceeee. 11

Cc. Proceedings Below..................ssccssses. 11

REASONS FOR GRANTING THE PETITION ..............0.0-+. 16

I. CALIFORNIA’S EXERCISE OF

PERSONAL JURISDICTION

VIOLATES RIGHTS AFFORDED

RELIGIOUS INSTITUTIONS BY THE

FREE EXERCISE CLAUSE OF THE

FIRST AMENDMENT .............ccccccccccceseseeeees 16

ill

TABLE OF CONTENTS

(Continued)

Page

Il. CALIFORNIA’S EXERCISE OF

SPECIFIC PERSONAL

JURISDICTION OVER THE

MIL\VAUKEE ARCHDIOCESE

CANNOT BE RECONCILED WITH

THE REQUIREMENTS OF DUE

PRR i visrccsatubistssisnasiiagebetaneiesSudedsiciegisasabecebs 20

A. A Non-Resident Defendant

Employer is not Subject to

Personal Jurisdiction Under the

Calder “Effects” Test Where it

Allegedly Fails to Take

Appropriate Steps to Prevent a

Potential Future Tort in the

Forum by a Former Employee

Over Whom the Defendant Has

| IRE nee Pena eee ee 20

B. The Exercise of Personal

Jurisdiction by the State of

California Does Not Comport

With Fundamental Fairness or

Substantial Justice.................0sseee eo

CE IS cisactesitbdesdisendided cates sk eptdaiaklcs Pe idninsexeisesesses 27

iV

TABLE OF AUTHORITIES

Page

CASES

Archdiocese of Milwaukee v. Superior Court

112 Cal. App. 4" 423, 5 Cal. Rptr. 3d 154

Cpa sinsshininniricniiaienssaknlidniaadianicn tie eee passim

Asahi Metal Industry Co. v. Superior Court, 480

Wes WOME CUNT caibdiscviscineniiettidantieateniecienid bose 13, 24

Burger King Corp..v. Rudzewicz, 471 U.S. 462

CRIED wisi scetsicéshdcalie etait ek ah: 13, 21, 25, 27

Calder v. Jones, 465 U.S. 783 (1984) v.ccccccccccsessssssssesoseee passim

; Gonzalez v. Roman Catholic Archbishop of

PT, BIO Te Fic sosccnieteadctrniithsananiiisiassoieseeesas 19

i Helicopteros Nacionales de Columbia v. Hall,

Fe Girls WP i iriascansTbiceadhaniehcestuaiiabeantenieea aes 25

Kedroff v. St. Nicholas Cathedral of Russian O.

Church, 344 U.S. 94 (1952) 0.0.0.0... Spbbcinibesinbserescsrecanceetooas 19

Kulko v. Superior Court, 436 U.S. 84 (1978)...cccccccccccscssseseoce 25

Moran v. Metropolitan District Council of

Philadelphia and Vicinity, 640 F. Supp. 430

CREA. DE: TOR sicvinintantinitipinetieriaiee tite oe 26

i Pritzlaff v. Archdiocese of Milwaukee, 194 Wis.

j 2d 302, 533 N.W.2d 780 (1995)....c.ccccccccscecssssessesceceseseeeees 13

Randi W. v. Muroc Joint Unified Sch. Dist., 14

Cal. App. 4" 1066, 929 P. 2d 582 | SER EET 4

Richelle L. v. Roman Catholic Archbishop of

San Francisco, 106 Cal. App. 4" 257, 130

Sib, BOI. BOW GE Ge hiscsissstecesctesseindscicbecccscécertcosconsovacese 13

Serbian Eastern Orthodox Diocese of America

and Canada v. Milivojevich, 426 U.S. 696

SEF UE wwchissesitebninisbistiiaecaadieediele eksadninceas sie 19

Watson v. Jones, 80 U.S. 879 (1871) v.ccccccccssssessesscsesscsseceececes 18

Wisconsin v. Yoder, 406 U.S. 205 (1972)...ccccccccscssescsssssereeeces 19

; Vv

ere. TTC

OE LLL

TABLE OF AUTHORITIES

(Continued)

World-Wide Volkswagen Corp. v. Woodson, 444

J.B. SOD CG piss inncininicnisaticeksanbniantinnekenedontatdiies

2B ULB... GEZS TED scccsinntevintviuntniedbaaanaiaaibaiiien

California Code of Civ. Proc. $410.1 O.....ccccccccseceeeeeeees

OTHER AUTHORITIES

Former Employer’s or Supervisor’s Tort

Liability to Prospective Employer or Third

Person for Misrepresentation or

Nondisclosure in Employment Reference,

6B ALR: F | icra iia

James T. O’Reilly & Joan M. Strasser, Clergy

Sexual Misconduct: Confronting The

Difficult Constitutional And Institutional

Liability Issues, 7 St. Thomas L. Rev. 31, 44

C SPIED .:sscvcstercassusssvsenciibael sivanaaseeniaanineeaabeaanaiian

Liability of Church or Religious Organization

for Negligent Hiring, Retention, or

Supervision of Priest, Minister or Other

Clergy Based on Sexual Misconduct, 101

POR Ss: | RO Ee

Supreme Court Rule 10(6).....sscsccsssossssccrssssssvesvseceseoeees

v1

No.

IN THE

SUPREME COURT OF THE UNITED STATES

MARCH TERM, 2004

ARCHDIOCESE OF MILWAUKEE

Petitioner,

vs.

SUPERIOR COURT OF CALIFORNIA,

Respondent,

and

ERIC NATHAN PAINO,

Real Party-In-Interest.

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS, FOURTH DISTRICT,

OF CALIFORNIA

PETITION FOR WRIT OF CERTIORARI

Petitioner, the Archdiocese of Milwaukee, (hereinafter

“Milwaukee Archdiocese”) respectfully moves this Honorable

Court to issue a writ of certiorari to review the published

opinion of the California Court of Appeals entered on

October 1, 2003, and the California Supreme Court Decision on

January 14, 2004 denying the Archdiocese’s Petition for

Review.

OPINIONS BELOW

The opinion of the California Court of Appeals, 4"

District, affirming the trial court’s exercise of personal

l

jurisdiction over the Milwaukee Archdiocese is officially

reported at 112 Cal. App. 4" 423, 5 Cal. Rptr. 3d 154 (2003),

and appears in Petitioner’s Appendix at A-1 through A-29. The

California Supreme Court, in an unpublished order, denied the

Archdiocese’s Petition For Review. That denial appears in

Petitioner’s Appendix at B-1.

STATEMENT OF THE BASIS FOR JURISDICTION

3 The opinion of the California Court of Appeals

sought to be reviewed was rendered on October 1, 2003.

2. Petitioner’s timely Petition For Review to the

California Supreme Court was denied on January 14, 2004.

a Petitioner invokes the jurisdiction of this Court

pursuant to 28 U.S.C. §1257(a) and Rule 10(c), Rules of the

Supreme Court of the United States, in that California’s

exercise of jurisdiction over the Milwaukee Archdiocese

violates the Free Exercise Clause of the First Amendment to the .

United States Constitution, and is incompatible with this

Court’s decisions regarding the minimum contacts necessary to

establish specific personal jurisdiction over a non-resident

defendant in violation of the Due Process Clause of the

Fourteenth Amendment to the United States Constitution.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

There are no federal statutes at issue in this Petition.

This Petition questions California’s exercise of personal

jurisdiction over the Milwaukee Archdiocese consistent with

the First and Fourteenth Amendments to the United States

Constitution, and California Code of Civ. Proc. §410.10.

INTRODUCTION

This case questions whether the Free Exercise Clause of

the First Amendment prohibits a state from exercising specific

personal jurisdiction over a non-resident religious organization

predicated upon its failure to prevent a member of its clergy

from pursuing his/her vocation with a separate and distinct

religious organization located in the forum state. Petitioner, the

Milwaukee Archdiocese, respectfully submits that where the

non-resident religious organization has no legal ability to

prevent such prospective employment, but only the religious

authority to do so, a State may not, consistent with the Free

Exercise Clause, impose personal jurisdiction over the non-

resident religious organization.

The California Court of Appeals held that even though

the Milwaukee Archdiocese could not legally prevent its priest,

Sigfried Widera, previously convicted in 1973 of a sexual

molestation offense in Wisconsin, from resigning his affiliation

with the Milwaukee Archdiocese in 1981, and accepting

employment with a separate and distinct California religious

organization, the Archdiocese did have the ecclesiastical

authority to prevent that employment under the religious

doctrine of “excardination,” requiring the Archdiocese to

approve Widera’s new employment with a foreign diocese. The

court then held that the Archdiocese’s failure to. prevent

Widera’s employment with the Diocese of Orange constituted

“purposeful availment” of California’s laws under the “effects”

test for determining a state’s constitutional exercise of specific

personal jurisdiction, established in Calder vy. Jones, 465 U.S.

783 (1984), which permits the exercise of jurisdiction over a

non-resident defendant where it engages in intentional and

potentially harmful conduct expressly aimed at, or targeting, the

forum state.

A second issue posed by this case is whether the Calder

“effects” test permits the exercise of jurisdiction over a non-

resident employer who is alleged to have wrongfully failed to

prevent or deter a wrong subsequently committed in the forum

by a former employee acting in his/her capacity as an employee

of a subsequent forum employer. According to the California

Court of Appeals, the “intentional conduct” requirement in

Calder includes not only affirmative acts expressly aimed at or

targeting the forum, but it also includes a non-resident’s failure

to prevent or hinder a third party from potentially committing a

future wrong in the forum.

The California Court of Appeals held that the

Archdiocese’s failure to prevent Widera’s employment by the

Diocese of Orange satisfied the “effects” test, because the

Archdiocese should have foreseen a repeat of Widera’s prior

sexual offense after becoming an employee of the Diocese of

Orange. The court also held that while not necessary to

establish personal jurisdiction over the Archdiocese, its failure |

to inform the Diocese of Orange about Widera’s 1973 criminal

conviction facilitated Widera’s employment by the Diocese of

Orange, and this omission also satisfied the Calder “effects”

test.' According to the Court of Appeals, any non-resident

former employer that fails to disclose all material information

regarding a former employee in the course of recommending

the former employee to a prospective employer in California,

knowing the former employee poses a distinct risk of harm to

' Under California common law, any employer that voluntarily provides a

prospective employer with information relating to its former employee must

make full and complete disclosure of all material information regarding the

former employee. See Randi W. v. Muroc Joint Unified Sch. Dist., 14 Cal.

App. 4" 1066, 1081-82, 929 P. 2d 582 (1997). Notably, there is a split of

authority on this issue. See “Former Employer’s or Supervisor’s Tort

Liability to Prospective Employer or Third Person for Misrepresentation or

Nondisclosure in Employment Reference,” 68 A.L.R. 5" 1 (2003).

4

ART READE

ane

California residents, is subject to specific personal jurisdiction

in California under the Calder “effects” test.

Petitioner respectfully submits that the Calder “effects”

test cannot be distorted to encompass this type of inaction by a

non-resident former employer; Due Process requires more than

the non-resident’s failure to take action to prevent possible

future harm from occurring in the forum, at least where, as here,

the potential harm is posed by a third party over whom a non-

resident no longer has any control. The Calder “effects” test, at

a minimum, requires some affirmative conduct by a non-

resident defendant that specifically targets the forum, where the

defendant can or should foresee potential harm to forum

residents arising from that affirmative conduct. A _ non-

resident’s failure to act to prevent a potential harm from

occurring in the forum by a third party cannot form the

predicate for the state’s exercise of specific personal jurisdiction

over the non-resident consistent with Due Process.

STATEMENT OF THE CASE

A. Factual Background.

In 1967, Sigfried Widera was canonically incardinated?

within the Milwaukee Archdiocese and received faculties to act

as a priest in Wisconsin. 112 Cal. App. 4 at 427.

Approximately six years later, Widera was criminally convicted

of sexual molestation of a minor and sentenced to probation.

Id. On June 29, 1976, another minor in Wisconsin claimed he

was sexually assaulted by Widera. Jd. at 428.

? Incardination is an ecclesiastical process whereby a priest is formally

assigned to a Bishop in a specific diocese or Archdiocese. 112 Cal. App. 4”

at 427, n. 1.

In August, 1976, Widera told the Milwaukee

Archdiocesan Personnel Board that he planned to visit his

brother in Costa Mesa, California. /d. at 429. In October, 1976,

after spending several months in Costa Mesa, Widera informed

the Board that he was considering asking for a leave of absence,

or working for a California parish. The Personnel Board

responded that the Milwaukee Archdiocese would be amenable

to Widera’s continuing to work within the Archdiocese after his

obtaining significant psychiatric counseling, or it would

consider releasing Widera to the services of another diocese if

that could be arranged, and Widera agreed to continue

counseling. The Board noted that the latter course would

require permission from the Archbishop of Milwaukee, as well

as the Bishop of the diocese selected by Widera. Widera

responded that “The choice of being released to the service of

another diocese has its merits.” Jd. at 430.

On December 3, 1976 the Archbishop of Milwaukee

informed the Archdiocesan Personnel Board that Widera

wished to work temporarily for the Diocese of Orange and that

he would be continuing psychotherapy in California. The

Archbishop informed the Board that he planned to contact

Bishop William Johnson of the Diocese of Orange to see if

there might be something available for Widera. Jd.

In a letter dated December 20, 1976 the Archbishop of

Milwaukee wrote to Bishop Johnson and Father Michael

Driscoll, the secretary/chancellor of the Diocese of Orange:

> As dictated by the hierarchal structure of the Roman Catholic Church, the

religious authority of the Milwaukee Archdiocese is limited to Wisconsin; if

Widera wished to work as a Roman Catholic priest elsewhere, he would need

authorization from the Archbishop of Milwaukee, as well as the Bishop of the

selected diocese. /d. at 430.

ne a

A few days ago I talked by phone to

Bishop Johnson about a_ possible

pastoral assignment for Father Sigfried

Widera of this Archdiocese. The

conversation was very general and the

Bishop suggested that perhaps

something could be done on a

temporary basis. My reason for

approaching Bishop Johnson is

founded in the fact that Father

Widera’s brother and family live in

Costa Mesa, California....

Father Widera was ordained in 1967

and has done good work for the

Diocese in the places to which he was

assigned. In his earlier years there was

a moral probleni having to do with a

boy in school. This seemed adequately

confronted through treatment and an

intense desire upon Fathez’s part to

avoid any repetition of a previous

offense.

More recently, however, there has

been a repetition, and according to our-

State Law further psychiatric treatment

is mandated with the _ strong

recommendation that no immediate

assignment be made in the environs

of the Archdiocese.

Father Widera has cooperated in every

way and is presently under treatment.

His doctor is somewhat in favor of his

leaving the scene but expects that there

7

will be continuing treatment. This has

already been arranged and a doctor in

California will take over at this point.

From all the professional information I

can gather there would seem to be no

great risk in allowing this man to

return to pastoral work, but there are

legal complications at present writing:

Incidentally, these legal technicalities

would permit Father’s going to ancther

State as long as treatment is continued.

There is no thought of incardination

involved, and I’m quite willing to

accept the man back into the

Archdiocese whenever circumstances

would indicate. Though I anticipate no

recurrence of this past aberration, I

would certainly want to be informed if

- the slightest suspicion were to develop.

I would like to show fraternal charity

to a fellow priest, but I cannot be

virtuous at the expense of a fellow

Bishop.

Id. at 430-31.

On January 10, 1977 Widera was appointed by the

Diocese of Orange as an Associate Pastor “in hospitality” at St.

Pius V Parish in Buena Park, California. Jd. at 431. Father

Driscoll wrote to the Archbishop of Milwaukee confirming the

appointment. In response, the Archbishop wrote to Bishop

Johnson informing him that Widera would remain a member of

the Milwaukee Archdiocese:

Permit me to express my _ sincere

thanks to you and those involved for

this consideration of a priest who has

done good wok and whose absence

from the Diocese is predicated upon

the local situation discussed in earlier

letters.

I fully expect that upon the

recommendation of those

professionally helping him at the

present time he will be reassigned in

our Archdiocese. .

Id.

Beginning in January, 1977, with Widera’s appointment

as Associate Pastor at St. Pius V Parish in Buena Park, the

Diocese of Orange began paying Widera’s salary and provided

for his temporal needs. After this date, Widera acted on behalf

of the Diocese of Orange, which had complete control over his

assignments and supervision; although Widera continued to be

incardinated with the Milwaukee Archdiocese until 1981, upon

receiving his assignment in California from the Diocese of

Orange, all responsibilities to and for Widera were placed upon

the Diocese of Orange as if Widera were incardinated there.

(PA 00952 at 35:20-25, 36:1).*

While the Diocese of Orange assumed all

responsibilities for Widera in the period 1977 through 1981,

“ As explained by the Bishop of the Diocese of Orange, it is not unusual that

a priest will remain incardinated in one diocese even when working in

another diocese and that it is customary for a priest to ave worked “at least

three years” and “received two assignments before [the new diocese]

consider(s) incardinating the priest.” (PA 00933 at 67:1-13).

9

because Widera remained incardinated by the Milwaukee

Archdiocese, as a matter of Canon Law, he was still subject to

the authority of the Archbishop of Milwaukee. The Archbishop

had the authority to recall Widera to Wisconsin, to remove his

faculties as a priest, to investigate whether he had committed

acts of molestation, and to petition the Pope to laicize him. 112

Cal. App. 4" at 432.

Widera worked at St. Justin Martyr Parish in Anaheim,

California from April, 1997 to July, 1981. Widera was then

transferred to St. Edward’s Parish in Dana Point, California

because the policy of the Diocese of Orange was to rotate

associate pastors every four years. Jd.

In October, 1981 Widera sought incardination into the

Orange Diocese. Under Canon Law, a diocesan priest cannot

be incardinated in two dioceses at the same time. The proper

canonical process was to excardinate Widera from the

Milwaukee Archdiocese and to incardinate him into the Orange

Diocese. Once a diocesan priest becomes incardinated in a new

diocese, his relationships, obligations, and connections with the

former diocese are terminated. Jd. At such time, the former

diocese no longer has any authority over the priest, and has no

right to restrict or terminate his activities as a priest. (PA

00966).

Widera was excardinated from the Milwaukee

Archdiocese and incardinated in the Orange Diocese on

November 23, 1981. As of this date, Widera was removed from

the Milwaukee Archdiocesan priest fund, personnel role,

pension plan, priest senate, and payroll; as of this date, there

was no longer any legal relationship between Widera and the

Milwaukee Archdiocese. 112 Cal. App. 4" at 432.

After incardination in the Orange Diocese, Widera

worked at several parishes until he was assigned to St. Martin

10

de Porres in Yorba Linda, California in July, 1985. Real party-

in-interest, Eric Paino, attended St. Martin de Porres. The

incident giving rise to the underlying litigation is Paino’s claim

that shortly after Widera came to St. Martin de Porres, he began

molesting Paino. /d. at 433.

B. Underlying General Jurisdictional Facts.

The Milwaukee Archdiocese is a religious corporation

organized under Wisconsin’s law and is located in Milwaukee,

Wisconsin. (PA 00003 at 93). It is a separate, distinct

corporate entity from the Diocese of Orange which is

incorporated in California. (/d., 42). Both entities keep

separate books, and only the Diocese of Orange has a presence

in California. Jd.

The Milwaukee Archdiocese is presided over by a

different Bishop or Archbishop than the Diocese of Orange.

The Archbishop of Milwaukee exercises no control or influence

over any activities in the Diocese of Orange. (PA 00062, {[§/2-

3). The Milwaukee Archdiocese owns no real or personal

property in California, pays no California taxes, holds no

California bank accounts, maintains no California offices, has

no California telephone listings or mailing addresses, and has

no registered agent for the service of process in California. Jd.

It also has not signed any contracts in California, nor has it

performed any religious services, sold any goods, or derived

any substantial revenue from goods used or consumed in

California. Jd. The Milwaukee Archdiocese conducts no

business in California. Jd.

C. Proceedings Below.

In April, 2002, Paino filed a complaint against the

Orange Diocese, the Milwaukee Archdiocese, and Widera,

asserting eleven causes of action based upon alleged acts of

11

sexual abuse by Widera occurring in California in 1985. Paino

alleged that:

Even though the Defendants Dioceses

knew and should have known that

Father Widera had molested and

sexually abused minors, and even

though the Defendants Dioceses had

actual and constructive knowledge of

the molestations and sexual abuses, the

Defendants Dioceses covered up the

molestations and abuses by Father

Widera, continued to allow Father

Widera to act as a Catholic priest

within the Defendants Dioceses,

continued to hold Father Widera out as

a Catholic priest who could be trusted

with minor parishioners and minor

students, continued to allow Father

Widera to work with minor

parishioners and minor students on a

daily basis, and continued to move

Father Widera around to different

Catholic churches’ within the

Defendants Dioceses.

114 Cal. App. 4" at 433.°

* The essence of the cause of action asserted against the Milwaukee

Archdiocese and the Diocese of Orange is that each wrongfully failed to

terminate Widera because he was unfit to be a priest. Courts are divided on

the issue of whether the Free Exercise Clause permits a civil tort action

against a religious institution for failing to terminate or adequately supervise

a member of its clergy. See “Liability of Church or Religious Organization

for Negligent Hiring, Retention, or Supervision of Priest, Minister or Other

Clergy Based on Sexual Misconduct,” 101 A.L.R. 5" (2003). The Supreme

Court of Wisconsin has held that there is no such tort liability under the First

12

The Milwaukee Archdiocese moved to quash the action

for lack of personal jurisdiction; the trial court denied the

Archdiocese’s motion. The Archdiocese then filed a Petition

For Writ of Mandate challenging the trial court’s order. Jd. In

a Decision dated October 1, 2003, the California Court of

Appeals affirmed the trial court’s decision, holding that while

California did not have “general jurisdiction” over the

Milwaukee Archdiocese, i.e., the Archdiocese had no

“substantial ... continuous and systematic contact with

California,” it did have “specific jurisdiction” because: (1) the

Milwaukee Archdiocese had “purposefully availed itself of

forum benefits with respect to the matter in controversy,” (2)

the controversy was “related to or arose out of the Archdiocese

contacts with the forum,” and (3) the exercise of jurisdiction

“comported with fair play and substantial justice.” Jd. at 435-

36, citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472,

476 (1985). -

The Court then held that under Calder v. Jones, 465

U.S. 783 (1984) and Asahi Metal Industry Co. v. Superior

Court, 480 U.S. 102 (1987), the “purposeful availment”

standard is met where a non-resident defendant purposefully

directs or aims its actions toward the forum state, knowing that

its conduct could potentially cause harm to forum residents.

The Court found the “effects” test satisfied here:

Amendment. See Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302,

533 N.W.2d 780 (1995). The California appellate courts have not resolved

this issue. See Richelle L. v. Roman Catholic Archbishop of San Francisco,

106 Cal. App. 4" 257, 130 Cal. Rptr. 2d 601 (2003). Because this issue is a

“merits” issue and not a jurisdictional one, it is not ripe for determination by

this Court. See Calder v. Jones, 465 U.S. 783, 790 (1984).

13

The evidence supports the conclusion

the Milwaukee Archdiocese

intentionally sent Widera to California

to get him out of Wisconsin where he

had been convicted of sexual

perversion. . .and could create further

problems for the Milwaukee

Archdiocese. . .[T]he Milwaukee

Archdiocese knew Widera was a

pedophile and posed a serious threat of

sexually abusing boys in California ....

Having sent Widera into California

knowing he was a convicted child

abuser and a pedophile, the Milwaukee

Archdiocese reasonably could expect

to be haled into court in California to

answer for the consequences of its

actions.

Once Widera was in California, the

Milwaukee Archdiocese never recalled

him, although it had the power to do

so, never questioned him, never

monitored his treatment, and never

conducted an_ investigation to

determine whether he continued to

molest boys. The Milwaukee

Archdiocese allowed Widera to be

excardinated so he could' be

incardinated in the Orange Diocese.

Id, at 438-39.

Although the court found that the Milwaukee

Archdiocese’s religious authority to prevent Widera’s 1981

employment by the Diocese of Orange was sufficient to satisfy

14

the “effects” test,° the court also concluded that jurisdiction

could be predicated on the Archdiocese’s failure to disclose

Widera’s 1973 criminal conviction to the Diocese of Orange:

“Is it relevant to the “effects” test

whether or not the Milwaukee

Archdiocese disclosed Widera’s prior

misconduct to the Diocese of Orange?

No. The Milwaukee Archdiocese rid

itself of Widera by sending him into

California, knowing he was a

pedophile and had been convicted of

perversion with a boy. The Milwaukee

Archdiocese’s conduct was intentional

and was expressly aimed at California.

The Milwaukee Archdiocese knew its

intentional conduct would cause harm

in California. Thus, the Milwaukee

Archdiocese’s conduct satisfied the

“effects” test, regardless of whether it

gave Orange Diocese “fair warning” of

Widera’s prior misconduct.

Even if considered, [the Milwaukee

Archdiocese letter] ... supports the

conclusion the Milwaukee

Archdiocese engaged in express

aiming at or targeting California. The

° While the court stated that the Archdiocese “sent” Widera to California in

1976 (which is manifestly untrue, see pages 16-17 infra.), and permitted him

to work as a temporary or “loaned” employee with the Diocese of Orange in

the period 1977-1981, none of these “facts” is jurisdictionally relevant

because the wrong at issue here, the alleged 1985 molestation of plaintiff by

Widera, occurred four years after Widera became employed (incardinated) by

the Diocese of Orange. Whatever the Milwaukee Archdiocese did or did not

do before 1981 is jurisdictionally irrelevant.

15

letter appears to be intentionally vague

and incomplete; it does not describe

what is meant by ‘a moral problem,’

does not disclose when the ‘moral

problem’ occurred, does not identify

the repetition, and, most importantly,

does not disclose Widera’s criminal

conviction for sexual perversion.

112 Cal. App. 4" at 439-440.

REASONS FOR GRANTING THE PETITION

I. CALIFORNIA’S EXERCISE OF PERSONAL

JURISDICTION VIOLATES RIGHTS AFFORDED

RELIGIOUS INSTITUTIONS BY THE FREE

EXERCISE CLAUSE OF THE ~ FIRST

AMENDMENT.

If the Milwaukee Archdiocese had actually sent Widera

to California in 1976, and if Widera had committed the alleged

offense against plaintiff while still an employee of the

Milwaukee Archdiocese, California’s exercise of jurisdiction

over the Milwaukee Archdiocese likely would pose no

constitutional issue. But that is not what occurred here. First,

the Milwaukee Archdiocese did not “send” Widera to

California. The lengthy correspondence quoted by the

California Court of Appeals, pages 7-9 supra, discloses that

Widera first had the idea of moving the California and seeking

temporary association with a California diocese, that Widera

was free to seek a “temporary assignment” anywhere in the

United States with the approval of the Milwaukee Archdiocese,

that Widera chose California because he had family there, that

Widera sought permanent employment with the Diocese of

Orange, and that the Milwaukee Archdiocese had no legal or

16

eee

ecclesiastical power to require the Diocese of Orange, or any

other diocese, to employ Widera in any capacity.

Second, even if the Milwaukee Archdiocese had “sent”

Widera to California in 1976, thereby arguably subjecting the

Archdiocese to California’s exercise of personal jurisdiction for

any wrong committed by Widera while still employed by the

Milwaukee Archdiocese, i.e., as a “loaned” employee with the

Diocese of Orange,’ that employment undisputedly ended in

November, 1981 when. the Milwaukee Archdiocese

excardinated Widera and the Diocese of Orange incardinated

him. Because the alleged offense giving rise to the cause of

action at issue in this case occurred in 1985, California’s

exercise of jurisdiction over the Milwaukee Archdiocese is

necessarily predicated upon the Archdiocese’s “complicity” in

permitting Widera to become a permanent employee of the

Diocese of Orange, thereby allegedly exposing California

juveniles to an increased risk of harm from Widera while acting

as a priest permanently employed by the Orange Diocese. It is

this alleged wrongful failure to prevent Widera’s employment

by the Diocese of Orange that collides with the First

Amendment’s Free Exercise Clause.

It is undisputed that when Widera sought permanent

employment with the Diocese of Orange, the Milwaukee

Archdiocese had no legal right to foreclose that employment,

and that after Widera became an employee of the Diocese of

Orange in 1981, the Milwaukee Archdiocese no longer had any

legal relationship to Widera—it had no right to supervise or

discipline Widera, nor did it have any right to restrict or

terminate his activities as a priest. None of this mattered to the

” The California Court of Appeals analogized Widera’s status to that of a

“loaned employee” in the years 1977-1981, when only the Diocese of Orange

was directing Widera’s employment and supervising him while Widera

continued to be incardinated in Wisconsin. 114 Cal. App. 4" at 438.

17

California Court of Appeals, however, because under Roman

Catholic religious doctrine, i.e., Canon Law, the Diocese of

Orange would not employ Widera absent his being excardinated

from the Milwaukee Archdiocese. Accordingly, although the

Milwaukee Archdiocese had no legal nght to prevent that

employment, its religious authority to do so was sufficient to

permit California to exercise jurisdiction over the Archdiocese.

Can the state of California exercise specific personal

jurisdiction over a religious institution or organization because,

as a matter of religious doctrine, as opposed to civil legal

authority, it can prevent an allegedly unfit member of its clergy

from becoming employed by a separate and distinct religious

organization incorporated in the forum state? Petitioner

respectfully submits that the First Amendment precludes the

exercise of personal jurisdiction in such a case. The

Archdiocese’s exercise of its religious authority, i.e., its

excardination of Widera, in 1981, cannot justify California’s

exercise of specific personal jurisdiction. ®

Thomas Jefferson wrote in 1808 that the government is

interdicted by the Constitution from intermeddling with

religious institutions, their doctrines, disciplines or exercises.

James T. O’Reilly & Joan M. Strasser, Clergy Sexual

Misconduct: Confronting The Difficult Constitutional And

Institutional Liability Issues, 7 St. Thomas L. Rev: 31, 44

(1994). Sixty-three years later, this Court in Watson v. Jones,

80 U.S. 879 (1871), found that civil courts have no jurisdiction

when the matter in dispute is “ecclesiastical in character’, or

where the matter concerns “theological controversy, church

discipline, or ecclesiastical government.” Jd. at 733.

* Although. the Milwaukee Archdiocese argued that its religious authority

over Widera could not provide California with a basis for the exercise of

jurisdiction consistent with the First Amendment, the Court of Appeals

ignored this issue.

18

Subsequently, the Court held that it is the function of

church authorities, not civil courts, to assess the qualifications

of clergy and act upon such an assessment. Gonzalez v. Roman

Catholic Archbishop of Manila, 280 U.S. 1 (1929). More

recently, the Court held that decisions based upon religious

doctrine and policy, such as the selection and utilization of

clergy “have federal constitution protection as part of the free

_ exercise of religion against state interference.” Kedroff v. St.

Nicholas Cathedral of Russian O. Church, 344 U.S. 94, 116

(1952).

The Court also discussed church autonomy in Serbian

Eastern Orthodox Diocese of America and Canada vy.

Mitivojevich, 426 U.S. 696 (1976), finding that a Bishop could

not seek redress in a civil court to challenge his defrockment

because the First Amendment precludes civil courts from

delving into the interpretation of church governance in order to

decide legal issues. Jd. at 708-709. Specifically, the Court

found that when resolution of a dispute requires extensive

inquiry by a civil court into religion and polity, the First and

Fourteenth Amendments mandate that civil courts cannot

disturb the decisions of an ecclesiastical tribunal, but must

accept such decisions as binding. Jd. at 709; see also

Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that it would

be unconstitutional for the state of Wisconsin, as parens

patriae, to compel mandatory education of Amish children

because it would require a threshold inquiry by the court into a

deeply rooted religious belief).

Reliance upon Canon Law, or religious doctrine, to

support a finding of specific personal jurisdiction raises the

same kinds of First Amendment problems, involving the court’s

application of religious doctrine rather than principles of civil

law, to sustain jurisdiction over a non-resident religious

institution. The ability of one religious organization to prevent

a member of its clergy from assuming employment with a

19

separate and distinct religious organization located in the forum

cannot provide the basis for the exercise of specific personal

jurisdiction where that ability derives from the former’s

religious authority or control rather than its legal

authority/control. Because the Milwaukee Archdiocese had no

such legal authority or control over Widera’s employment by

the Diocese of Orange, and because it had no control

whatsoever over Widera at the time of his alleged wrongdoing,

California cannot constitutionally base its exercise of

jurisdiction on the Archdiocese’s 1981 excardination of Widera

in order to permit his incardination by the Diocese of Orage.

California may not, consistent with the First Amendment, hale

the Archdiocese into California’s courts to answer for a wrong

committed by its former priest four years later, while employed,

supervised, and controlled by the Diocese of Orange.

Il. | CALIFORNIA’S EXERCISE OF SPECIFIC

PERSONAL JURISDICTION OVER THE

MILWAUKEE ARCHDIOCESE CANNOT BE

RECONCILED WITH THE REQUIREMENTS OF

DUE PROCESS. ;

A. A Non-Resident Defendant Employer is not

Subject to Personal Jurisdiction Under the

Calder “Effects” Test Where it Allegedly

Fails to Take Appropriate Steps to Prevent a

Potential Future Tort in the Forum by a

Former Employee Over Whom __ the

Defendant Has No Control.

Assuming, arguendo, that in order to establish specific

personal jurisdiction, a state may, consistent with the First

Amendment, rely upon a non-resident religious institution’s

religious authority to prevent a member of its clergy from

becoming employed by a separate and distinct religious

20

institution within the forum, does this ability permit the state to

exercise jurisdiction over the non-resident former employer

under the Due Process Clause of the Fourteenth Amendment?

The California Court of Appeals said yes—that a non-resident

employer of a individual allegedly unfit for employment by a

subsequent forum employer can be subjected to personal

jurisdiction in the forum where its failure to prever* or hinder

the subsequent employment creates a foreseeable risk of future

harm to forum residents, perpetrated by the former employee

acting in his capacity as an employee of the subsequent forum

employer. The Court of Appeals held that it was

jurisdictionally irrelevant that the non-resident former employer

has no control or tie to the former employee when he/she

commits a wrong in the forum while an employee of the

subsequent forum employer.

: Petitioner respectfully submits that neither Calder nor

any other decision of this Court permits jurisdiction to attach in

such a case; Due Process does not permit a state to exercise

jurisdiction simply because a non-resident allegedly fails to

prevent possible future harm in the forum caused by a third

party over whom the non-resident no longer has any control or

other legal relationship.

In Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-

72, 474-78 (1985), the Court reviewed the requirements for a

state’s exercise of specific personal jurisdiction over a non-

resident defendant:

“The Due Process clause protects and

individual’s liberty interest in not

being subject to the binding judgments

of a forum with which he has

established no meaningful ‘contacts,

ties, or relations.’ ....by requiring that

individuals have ‘fair warning that a

21

particular activity may subject them to

the jurisdiction of a foreign sovereign’.

Where a forum seeks to assert specific

jurisdiction over an_ out-of-state

defendant who has not consented to

suit there, this ‘fair warning’

requirement is_ Satisfied if the

defendant has ‘purposefully directed’

his activities at residents of the

forum...and the litigation results from

alleged injuries that ‘arise out of or

relate to’ those activities.... (citations

omitted)...

[T]he constitutional touchstone

remains whether the defendant

purposefully established ‘minimum

contacts’ in the forum state.... [T]he

Court has consistently held that ...

foreseeability [of causing injury] is not

a ‘sufficient benchmark’ for exercising

personal jurisdiction.... - Instead, ‘the

foreseeability that is critical to due

process analysis is that the defendant's

conduct and connection with the forum

State are such that he should

reasonably anticipate being haled into

Court there.’ (Citations omitted)....

This ‘purposeful availment’

requirement ensures that a defendant

will not be haled into a jurisdiction

solely as the result of ‘random,’

‘fortuitous,’ or ‘attenuated’ contacts ...

22

or the ‘unilateral’ activity of another

party or a third person ....

Once it has been decided that a

defendant purposefully established

minimum contacts within the forum

State, these contacts may be

considered in light of other factors to

determine whether the assertion of

personal jurisdiction would comport

with ‘fair play and _ substantial

justice.'.... [Mjinimum requirements

inherent in the concept of ‘fair play and

substantial justice’ may defeat tie

reasonableness of jurisdiction even if

the defendant has _ purposefully

engaged in forum activities."

In Calder, supra, the Court applied these principles of

Due Process to a case involving a professional entertainer

residing in California who brought an action in California

Superior Court claiming that she had been libeled in an article

written and edited by defendants residing in Florida, and

published by the National Enquirer, a national magazine having

its largest circulation in California. This Court held that where

a non-resident defendant is the "primary participant" in alleged

wrongdoing intentionaliy directed at a California resident,

specific jurisdiction over ihe non-resident is appropriate. The

Court emphasized that the non-iesident defendants in Ca/der

were the primary participants in a wrong actively committed

upon a California resident; they were not, as defendants argued,

individuals who had no control over the wrong committed

simply because the National Enquirer published the article in

California, nor could they claim that they did not benefit

economically from the wrong they committed.

23

Nothing could be further from the case here. The

Milwaukee Archdiocese, like any other former employer

providing references or background information regarding a

former employee to a prospective employer, derives no

financial benefit from providing the information,’ nor is the

former employer an active wrongdoer simply because it

allegedly omits to supply all material information to the

prospective employer in the forum. Most importantly, the

former employer has no control over the possible commission

of future wrongs by the former employee. The primary

participant, indeed the only participant, in the subsequent

wrongdoing is the former employee, who is under the

supervision and control of the subsequent forum employer.

Additionally, the failure to prevent or hinder the

commission of a future tort by a former employee does not

constitute the "targeting" of forum residents required by the

Calder "effects" test. In Asahi Metal Industry Co. v. Superior

Court, 480 US 102 (1987), this Court held that California could

not exercise personal jurisdiction over a foreign valve

manufacturer who sold valves to an independent third party

even when it knew the product would be incorporated into tire

tubes sold in California. The Court held that the non-resident

defendant’s awareness that some of the valves would end up in

California was not, in and of itself, enough to show that the

defendant purposefully availed itself of the California market.

The Court held that the defendant did not specifically "target"

California, and thus the exercise of personal jurisdiction by the

Superior Court of California exceeded the limits of due process.

Asahi, 480 US at 113.

* Whatever benefit is derived by the former employee in the forum cannot be

imputed to the non-resident former employer. See e.g. Kulko v. Superior

Court, 436 US 84 (1978), and Calder, 465 US at 790.

24

Here, while the Milwaukee Archdiocese knew that

Widera was seeking permanent employment with the Diocese

of Orange, and that Widera might pose a risk of harm to

California juveniles in his capacity as a priest associated with

the Diocese of Orange, such knowledge no more constitutes the

"targeting" of forum residents than the conduct of the defendant

in Asahi. It is undisputed that Widera chose to seek

employment with the Diocese of Orange, and that the

Milwaukee Archdiocese did not direct Widera to travel to

California nor did it direct Widera to seek employment w:th the

Diocese of Orange. Moreover it is undisputed that the

Milwaukee Archdiocese had no conceivable reason to

encourage Widera to seek employment in California, as

opposed to the remaining 48 states. The Archdiocese, like any

other employer willing to provide references to a soon to be

former employee, would have provided the same information to

any other diocese inclined to hire Widera. Widera’s selection

of California was a unilateral one by a third party which was

“random,” “fortuitous” and “attenuated” so far as_ the

Archdiocese was concerned. This Court has held that these

factors preclude the exercise of jurisdiction over a non-resident.

See Kulko v. Superior Court, 436 U.S. 8&4, 93 (1978);

Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408,

417 (1984); World-Wide Volkswagen Corp. v. Woodson, 444

U.S. 286, 296 (1980); Burger King, supra, 471 U.S. at 475.

Indeed, if the California Court of Appeals correctly

applied the Calder “effects" test in this case, then any non-

resident employer of an employee who might be deemed to be

unfit in some way, or to pose some increased risk harm to

others, would be subject to personal jurisdiction in any state

where the employee later unilaterally chooses to become

employed if the non-resident employer facilitates that

subsequent employment in any way, such as by failing to make

full and complete disclosure of all material information

pertaining to the employee in any reference provided to a

25

prospective employer. Such non-disclosure would always

constitute a “targeting” of the forum sufficient to allow a state

to exercise specific personal jurisdiction over the non-resident

former employer, despite the fact that the former employee

unilaterally chose the state in which he/she desired to work in a

given employment.

Petitioner submits that personal jurisdiction over non-

resident employers cannot, consistent with Due Process, be

predicated upon inadequate disclosures or other failures to take

steps to prevent or hinder the possibility of a future tort in a

given forum committed by prior employees or agents over

whom the non-resident has no further controi. As the District

Court in Moran v. Metropolitan District Council of

Philadelphia and Vicinity, 640 F. Supp. 430, 434 (E.D. Pa.

1986) appropriately observed: “Omissions can cause tortious

harm just as affirmative acts can, but a failure to act presents a

less convincing case of purposefully availing oneself of the

privilege of conducting activity in the state than an affirmative

act with specific foreseeable harm” (holding that an alleged

failure to act to prevent tortious harm in the forum by a third

party insufficient to satisfy due process). Petitioner respectfully

submits that the California Court of Appeals misapplied the

Calder “effects” test.

B. The Exercise of Personal Jurisdiction by the

State of California Does Not Comport With

Fundamental Fairness or Substantial Justice.

Even if a non-resident employer's failure to take

appropriate action to attempt to hinder or prevent future

wrongdoing by a former employee in the forum is sufficient

under the Calder "effects" test, personal jurisdiction cannot be

exercised where it would deprive the non-resident defendant of

substantial justice, where the exercise of jurisdiction is

26

inconsistent with the notions of fair play. See e.g. Burger King

Corp., supra, 471 US at 477-78, 485-86.

The imposition of jurisdiction in this case means that

the State of California would have perpetual jurisdiction over

the Milwaukee Archdiocese, or any other non-resident

employer alleged to have unreasonably permitted or facilitated

its employee’s employment by a subsequent forum employer,

for any future misconduct by a former employee acting in his

capacity as an employee of the subsequent forum employer,

regardless of when that alleged misconduct might occur. This

exercise of jurisdiction would be permissible despite the fact

that the employer no longer exercises any supervision or control

over the former employee.'? Such “perpetual” jurisdiction over

a non-resident former employer, who is alleged to have failed to

prevent possible future wrongdoing by a former employee, after

it relinquishes all rights to supervise and control the actions of

that individual, offends traditional notions of fair play and

substantial justice.

CONCLUSION

For each of the foregoing reasons, the Milwaukee

Archdiocese respectfully asks the Court to grant this Petition for

Review.

'° For example, under the Court of Appeals holding, the Milwaukee

Archdiocese would be required to defend itself against any act of molestation

allegedly committed by Father Widera in California while acting as a priest

for the Diocese of Orange, even if that act occurred 10, 20 or 30 or more

years after the Archdiocese terminated any and all legal relationship with

Widera, and no longer had any authority to control, supervise or terminate

him.

27

Respectfully submitted this 13th day of April, 2004.

MATTHEW J. FLYNN,

Counsel of Record

O. THOMAS ARMSTRONG

DAVID P. MUTH

QUARLES & BRADY LLP

411 East Wisconsin Avenue

Suite 2040

Milwaukee, WI 53202-4497

Attorneys for Petitioner

Archdiocese of Milwaukee

QBMKE\5542035.3

APPENDIX

California Court of Appeal, 4" Circuit, Division 3 Al

Decision, Dated October 1, 2003, denying

Petitioner’s Request for Petition for Writ of

Mandamus

Supreme Court of California’s Order, dated January Bl

14, 2004, denying Petition for Review :

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

Court of Appeal, Fourth District, Division 3, California.

The ARCHDIOCESE OF MILWAUKEE, Petitioner,

V.

The SUPERIOR COURT of Orange County, Respondent,

Eric Nathan Paino, Real Party in Interest.

No. G031386.

Oct. 1, 2003.

Review Denied Jan. 14, 2004.

Background: Alleged victim of sexual molestation by priest

sued Milwaukee Archdiocese, which had transferred priest to

California. The Superior Court, Orange County, No.

02CC06293, Ronald L. Bauer, J. denied Archdiocese's

motion to quash service of summons for lack of personal

jurisdiction, and Archdiocese petitioned for writ of mandate.

Holdings: The Court of Appeal, Fybel, J., held that:

(1) conduct of Archdiocese in sending priest into California

met purposeful availment requirement for specific

jurisdiction under "effects" test;

(2) alleged victim's claims bore substantial connection to

Axrchdiocese's contacts with forum state; and

(3) exercise of jurisdiction over Archdiocese would

comport with fair play and substantial justice.

Petition denied.

FYBEL, J.

I.

INTRODUCTION

In Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 127

Cal.Rptr.2d 329, 58 P.3d 2 (Pavlovich ), the California

Al

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

Supreme Court **158 held an out-of-state defendant may be

subject to personal jurisdiction in California based upon

evidence establishing the defendant engaged in intentional

conduct expressly aimed at or targeting California and the

defendant knew the intentional conduct would cause harm in

this state. In this case, we apply this "effects" test, as

expressed in Pavlovich, and conclude the Roman Catholic

Archdiocese of Milwaukee (the Milwaukee Archdiocese) is

subject to specific personal jurisdiction in California.

Plaintiff Eric Nathan Paino alleged and declared under oath

“that when he was a boy, Fr. Siegfried Widera (Widera), a

Roman Catholic priest, molested him. Widera was working

at a parish in Orange County when the alleged molestation

occurred. Paino sued the Milwaukee Archdiocese, the

Roman Catholic Bishop of Orange (the Orange Diocese), and

Widera. Paino alleged the Milwaukee Archdiocese engaged

in a cover-up of Widera's prior misconduct, which included a

conviction in Wisconsin for sexual perversion against a boy,

and arranged for Widera to move to California in 1973.

The evidence showed the Milwaukee Archdiocese sought to

rid itself of Widera by sending him into California knowing

he was a pedophile and had been convicted in Wisconsin of

sexual perversion against a boy. Paino met his burden of

proving, for purposes of establishing specific personal

jurisdiction, the Milwaukee Archdiocese engaged in

intentional conduct expressly aimed at California and knew

its conduct would cause harm in this state. We therefore

deny the Milwaukee Archdiocese's petition for writ of

mandate challenging the order denying the Milwaukee

Archdiocese's motion to quash service of summons.

Our opinion resolves only the Milwaukee Archdivcese's writ

petition and reviews only jurisdictional facts. We do not

address the merit of any claims or defenses.

A2

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

*427 II.

ALLEGATIONS AND JURISDICTIONAL FACTS

A. Widera is Convicted of Child Molestation in Wisconsin.

Widera was ordained as a Roman Catholic priest in 1967

and was incardinated in the Milwaukee Archdiocese. [FN1]

He died in 2003.

FN1. Incardination is a formal state by which a

Roman Catholic priest is made subject to the

authority of a bishop. (See Stevens _v. Roman

Catholic Bishop of Fresno (1975) 49 Cal.App.3d

877, 885, 123 Cal.Rptr. 171.)

On July 2, 1973, a criminal complaint against Widera for

sexual perversion was filed in Wisconsin Circuit Court. The

complaint alleged: "Frank Siegfried Widera, [minor boy]

and [minor boy] went from Port Washington to Random

Lake on Sat. June 30 and in the course of traveling to

Random Lake on or near the iniersection of State Highway

57 and County Highway K in the Township of Fredonia,

Ozaukee County [minor boy] placed his mouth over the

pen{iJs of Frank Siegfried Widera." On August 13, 1973,

Widera pleaded guilty and was sentenced to three years'

probation.

At the time of arrest, Widera was a priest at St. Mary's

Parish in Port Washington, Wisconsin. On July 31, 1973, the

Romani Catholic Archbishop of Milwaukee, William Cousins

(Cousins), determined Widera had to be _ transferred

immediately from St. Mary's. Both Cousins and the

Milwaukee Archdiocesan Personnel Board _[FN2] knew

about the criminal conviction **159 and knew Widera was a

pedophile. An August 14, 1973 document on _ the

Archdiocesan Personnel Board's letterhead _ states:

"Communication from Archbishop William E. Cousins to J.

A3

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

Theisen, Exec. Sec. of Priests' Personnel Board [§ ] ... [{ ]

Father Widera was arrested for, as the Milwaukee Sentinel

stated it, sexual perversion with young boys. He appeared in

the Ozaukee County Court yesterday, August 13, 1973 and

was sentenced to three years probation. The Judge, who

imposed the sentence, also ordered that Father Widera may

not return to the Port Washington area. [{ ] Father Widera is

presently seeing Dr. Leo F. Graham twice a week." Fr. John

Theisen (Theisen), director of the Archdiocesan Personnel

Board, testified in deposition he knew as of 1973 that Widera

was a pedophile and had been criminally convicted of child

molestation.

FN2. The Archdiocesan Personnel Board's primary

purpose was to make recommendaticns to the

Archbishop for placing diocesan priests.

B. Other Incidents of Child Molestation by Widera in

Wisconsin

The Milwaukee Archdiocese also knew the child

molestation resulting in Widera's conviction was not an

isolated incident. Fr. Rolland Glass (Glass) *428 was the

pastor at St. Mary's Parish, where Widera had served from

1972 through 1973. On September 3, 1973, Fr. Paul Esser

had a conversation with Glass about Widera. ‘Esser's

memorandum of the interview stated: "[Widera] was a

‘loner.’ He had difficulty relating with adults. He had instant

rapport with young boys and spent a lot of time with them. [4]

] ... [J ] 7. A male grade school teacher saw Fr. Widera

fooling around with the boys of another teacher. He said to

father that if he fooled around in the same way with his

students, he would punch Father in the face. [§ ] 8. Fr. Glass

had reports for some time from within and without the parish

that something was wrong. [J ] 9. He coached the boys in

basketball. He would be in the shower with the boys--all in

A4

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

the nude. When an adult male entered the shower, Fr.

[Widera] covered himself with a towel. [] ] 10. Fr. [Widera]

took boys swimming at a motel in Milwaukee. Father knew

the owner and could use the pool. This happened over a

period of time. [§] ] 11. Parishioners came forward after the

fact and indicated incidents they had noticed and warnings

they had given their own children about not letting Father

touch them. [9 ] Fr. Glass' mother told Glass that Fr.

{Widera] on at least one occasion had a boy sleep with him

overnight in the rectory. [§ ] 13. Fr. Glass did confront Fr.

[Widera]: ‘Circumstances are forcing me to draw certain

conclusions about you and your conduct with little boys.' Fr.

[Widera] stopped seeing boys for a time but then went back

to it. [| ] 14. There was a pattern of contact with small

belys]."

In early September of 1973, Widera was assigned to "help[ ]

out" at St. Andrew's Parish in Delavan, Wisconsin. Widera

was allowed to work with children. In February 1974, the

vice-president of the St. Andrew's school board wrote to

Theisen, "I'm writing to tell you how pleased we are to have

Fr. Sig Widera here in St. Andrew's Parish. He has endeared

himself to all who have had contact with him. [§ ] The

children in our school literally follow him around; he is so

kind and shows so much interest in them." Several St.

Andrew's parishioners wrote to the Archdiocesan Personnel

Board praising Widera's abilities with children. Although

Theisen responded to each of these letters, he did not

disclose Widera's conviction or other reports of possible

child molestation.

On June 29, 1976, Cousins contacted the archdiocese's

ombudsman [FN3] to infonn him **160 another allegation

had been made against Widera. The ombudsman's notes had

this entry for June 29: "Archbishop calied--Mike Short, a

therapist in Elkhorn, had called in to Bob Sampon--Short is a

AS

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

counselor and now advocate for [redacted text]. She

repoited to Short that her son had been sexually molested by

Fr. Widera while on a weekend fishing outing--Son is

[redacted name] age 13, an altar boy at Parish. Archbishop

suggested I call Widera first, then Short, assuring

complainants that W. will be removed from *429 parish and

-will receive in-patient treatment, if necessary." The

ombudsman's notes for July had this entry: "Widera

admitted that he made ‘a slip'. He took boy fishing alone

about 3 weeks ago. He had heard nothing about the

incident." The ombudsman told Widera he would "try to

keep the lid on the thing, so no police record weuld be

made," but Widera probably would be transferred ana would

need inpatient treatment.

FN3. The ombudsman assisted and _ represented

priests vis-a-vis the bishop and other church officials

in addressing problems and concerns, such as

allegations of sexual abuse.

The ombudsman then contacted Widera's therapist, Mike

Short. Short stated he would contact the boy's mother and

"convince her not to act with police, if Church remeves W.

from parish, and gets him help, as weli as counsels the boy."

On July 8, 1976, the ombudsman told Widera “anticipate

moving from Delavan after [your] probation.is over [§ ] not

to tell Fr. Henke [the pastor of St. Andrew's] at this time [§ ]

stay away from [redacted name] [{] ] also stay away from

another boy [you are] seen with frequently." Widera could

not be transferred until after Labor Day because of

"replacement problems."

On August 20, 1976, Fr. Henke (Henke) reported allegations

made againsi Widera to the Archdiocesan Persomiel Board.

Notes from the Archdiocesan Personnel Board stated,

"8/20/76--telephone--E. Henke--informed that S. Widera has

A6

112 Cal.App.4th 423, 5 Cal.Rpur.3d 154

had an incident with an 11 year old boy a couple of months

ago. Henke is concerned ‘iat the talk may become vicicus

against him in such a small town because news travels fast."

It is not clear whether the allegations reported by Henke

were the same as those reported to the ombudsman by Short.

Henke wanted Widera removed.

©. Widera Goes "On Vacation" to California and Takes

Faculties in the Orange Diocese.

On August 20, 1976, the ombudsman spoke with Henke and

Widera. The ombudsman wrete in his notes: "Called Henk<

and Widera--they agreed that W. would go ‘on vacation'

(California!) as soon as Waldbauer [_[FN4]] would find

supply help. Then [Widera] would be transferred. W.

should tell people only that he's going on vacation." Widera

told the Archdiocesan Personnel Board he "plans to leave St.

Andrew Parish, Delavan, on Monday, Aug. 23; he plans to

go to his brother's place" in Costa Mesa, California. On

August 23, the ombudsman told Cousins of these

"developments." Widera soon left for California.

FN4. Fr. John Waldbauer (Waldbauer) was the

executive secretary of the Archdiocesan Personnel

Board.

On August 27, 1976, the ombudsman wrote in his notes:

"Approached Esser about above--the Personnel Board has

heard nothing from anyone--*430 Archbishop has not spoken

to Personnel Board about this matter [§ ] ... [9] ] Paul [Esser]

would have a problem in conscience to re-assign Siegfried--

When? and should they really--in view of Widera's record? ?

Y ed

**161 In October 1976, Widera contacted the Archdiocesan

A7

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

Personnel Board and asked what positions would be open if

he returned to Wisconsin. Widera considered asking for a

leave of absence or for work in a California parish.

On October 29, 1976, Waldbauer sent Widera a letter

stating: "This letter is written to you to follow our telephone

conversation Wednesday morning. This relates to the

recommendation of the Personnel Board at its meeting of

October 26th. After I spoke with you, I called the

Archbishop, who is aware of this direction and supports its

intent. [| ] The Personnel Board recommends a choice.

First, that you pursue significant counseling to assist you in

coming in touch with yourself about the action that has

brought about a hasty exit from your last two assignments....

Subsequent to such therapy, you would be considered for an

appoiniment within the Archdiocese. The alternative would

be for you to be released to the services of another diocese;

with the permission of the Archbishop, you would request to

minister elsewhere. Should you select the second alternative,

the Board would ask periodic reports about your status."

In response, Widera wrote, "the choice of being released to

the service of another diocese has its merits." Widera

announced he would travel to Milwaukee in November to

personally discuss the situation. Widera also wrote: "As to

my present situation, I was in contact with Dr. Graham and

[the ombudsman] before I left Wisconsin. It was on advice

that I left the area. But think that it is time for me to return."

On December 3, 1976, Cousins :.:formed the Archdiocesan

Personnel Board that "S. Widera--wiil spend some time with

his parents in Florida and then go to California to continue

psychotherapy" and that Cousins "plans to contact Bishop

Johnson of Orange to see if there might be something

available for Widera." Cousins's authorization was necessary

for Widera to work as a priest cutside of the Milwaukee

A8

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

Archdiocese. On December 17, 1976, Cousins informed the

board he had "called Bishop Johnson in Orange about

possibility for S. Widera."

In a letter dated December 20, 1976, Cousins wrote to

Bishop William Johnson (Johnson) and _ the

secretary/chancellor of the Diocese of Orange, Fr. Michael

Driscoll (Driscoll). Cousins wrote: "A few days ago I talked

by phone to Bishop Johnson about a possible pastoral

assignment for Father Siegfried Widera of this Archdiocese.

The conversation was very general and the Bishop suggested

that perhaps something could be done on a temporary *431

basis. My reason for approaching Bishop Johnson is founded

in the fact that Father Widera's brother and family live in

Costa Mesa, California.... [§ ] ... [| ] Father Widera was

ordained in 1967 and has done good work for the Diocese in

the places to which he was assigned. In his earlier years

there was a moral problem having to do with a boy in school.

This seemed adequately confronted through treatment and an

intense desire upon Father's part to avoid any repetition of a

previous offense. [| ] More recently, however, there has

been a repetition, and according to our State Laws further

psychiatric treatment is mandated with the strong

recommendation that no immediate assignment be made in

the environs of the Archdiocese. [| ] Father Widera has

cooperated in every way and is presently under treatment.

His doctor is somewhat in favor of his leaving the scene but

expects that there will be continuing treatment. This has

already been arranged and a doctor in California will take

over at this point. From all the professional information I

can gather there would seem no **162 great risk in allowing

this man to return to pastoral work, but there are legal

complications at present writing. Incidentally, these legal

technicalities would permit Father's going to another State as

long as treatment is continued. [{ ] ... [| ] There is no

thought of incardination involved, and I am quite willing to

A9

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

accept the man back into the Archdiocese whenever

circumstances would indicate. Though I anticipate no

recurrence of this past aberration, I would certainly want to

be informed if the slightest suspicion were to develop. I

would like to show fraternal charity to a fellow priest but I

cannot be virtuous at the expense of a fellow Bishop."

On January 10, 1977, Widera was appointed as associate

pastor "in hospitality" at St. Pius V Parish in Buena Park.

Driscoll wrote to Cousins confirming the appointment. in

response, Cousins wrote a letter to Johnson confizming

Widera would remain « member of the Milwaukee

Archdiocese and stating: "Permit me to express my sincere

thanks to you and those involved for this consideration of a

priest who has done good work and whose absence from the

Diocese is predicated upon the local situation discussed in

earlier letters. [| ] I fully expect that upon the

recommendation of those professionally helping him at the

present time he will be reassigned in our Archdiocese."

Cousins also wrote to Widera telling him: "According to our

earlier conversations, your stay in California will be

determined by the doctor recommended to you before your

departure and to whom I confidently trust you have

committed yourself for necessary help. Treatment is

important to you and essential to your future assignment, but

I have every reason to believe that you will accept this

condition and work towards an early return."

The Milwaukee Archdiocese did not inform the Orange

Diocese of Widera's criminal conviction for sexual

perversion, provided no specific information regarding any

of the molestation allegations, and did not warn that Widera

might be a danger among children. Driscoll testified he

would not *432 have recommended accepting into the

Orange Diocese any priest who had a criminal conviction or

who posed a danger to minors.

Al10

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

During the period in which Widera worked in California but

was incardinated in Wisconsin, he remained subject to the

jurisdiction, authority, and control of the Archbishop of

Milwaukee. The Archbishop of Milwaukee had the authority

to recall Widera to Wisconsin, to remove his faculties as a

priest, to investigate whether he had committed acts of

molestation, and to petition the Pope to laicize him.

Widera worked.-at St. Justin Martyr Parish in Anaheim from

April 1977 to July 1981. Widera allegedly molested two

boys while serving at St. Justin Martyr. There is no evidence

these allegations were reported at the time to any church

officials. In July 1981, Widera was transferred to St.

Edward's Parish in Dana Point because diocesan policy was

to rotate associate pastors every four years.

D. Widera Is Excardinated from the Milwaukee Archdiocese

and Incardinated in the Orange Diocese.

In October of 1981, Widera sought incardination into the

Orange Diocese. Under Canon Law, a diocesan priest cannot

be incardinated in two dioceses at the same time. (See

Stevens _v. Roman Catholic Bishop of Fresno, supra, 49

Cal.App.3d 877 at p. 885, 123 Cal.Rptr. 171.) The proper

canonical process was to excardinate Widera from the

Milwaukee Archdiocese and to incardinate him into the

Orange Diocese. Once a diocesan priest becomes

incardinated in a new diocese, his **163 relationships,

obligations, and connections with the former diocese cease.

Widera was excardinated from the Milwaukee Archdiocese

and incardinated in the Orange Diocese on November 23,

1981. Widera accordingly was removed from the Milwaukee

Archdiocesan priest fund, personnel roll, pension plan, priest

senate, and payroll.

All

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

Correspondence between the Milwaukee Archdiocese and

the Orange Diocese was exchanged during the process of

Widera's excardination and incardination. In a letter dated

October 27, 1981, Driscoll formally requested the

Archbishop of Milwaukee to excardinate Widera. Driscoll

wrote, "Father Widera came to the Diocese for medical

reasons and [Cousins] wrote [Johnson], regarding the

possibility of extending the Hospitality of the Diocese of

Orange to Father Widera while he was on leave from the

Archdiocese of Milwaukee." (Italics added.) In a letter

dated November 23, 1981, enclosing the letter of

excardination, Msgr. Sylvester Gass, the Milwaukee

Archdiocese's Vicar General, wrote to Driscoll: "Canon 117, -

2° *433 mentions that testimonials regarding the priest's

birth, life, moral character and studies are to be provided by

the excardinating bishop. If you have need of any or all of

this pertinent information, we shall be happy to provide it."

In a letter to Gass dated December 4, 1981, Driscoll thanked

the Archbishop of Milwaukee for granting Widera's request

for excardination and stated, "[rjegarding the materials on

file in your Chancery Office concerning testimonials of

Father Widera, we believe that these testimonials can remain

on file in the archives of the Archdiocese of Milwaukee and

it is not necessary to forward them to us." None of the

correspondence from the Milwaukee Archdiocese mentioned

Widera's criminal conviction.

Widera's decree of incardination in the Orange Diocese

stated the diocese was "officially advised that you [Widera]

have [received] a decree of excardination from THE

ARCHDIOCESE OF MILWAUKEE with assurance of your

good character, your course of studies and your good

example." (Italics added.)

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

After incardination in the Orange Diocese, Widera worked

at several parishes until he was assigned to St. Martin de

Porres in Yorba Linda in July 1985. Paino attended St.

Martin de Porres. Paino declared under oath: "When Father

Widera was transferred to St. Martin de Porres, he

immediately began to befriend me and my family. [ ] ... In

1985, shortly after he came to St. Martin de Porres, and when

I was 8 years old, Father Widera began to molest me."

II.

PROCEEDINGS IN THE TRIAL COURT

In April 2002, Paino filed a complaint against the Orange

Diocese, the Milwaukee Archdiocese, and Widera, alleging

11 causes of action based upon alleged acts of sexual abuse.

Paino alleged that "[e]ven though the Defendants Dioceses

knew and should have known that Father Widera had

molested and sexually abused minors, and even though the

Defendant Dioceses had actual and constructive knowledge

of the molestations and sexual abuses, the Defendants

Dioceses[ ] covered up the molestations and abuses by Father

Widera, continued to allow Father Widera to act as a

Catholic priest within the Defendants Dioceses[ ], continued

to hold Father Widera out as a Catholic priest who could be

trusted with minor parishioners and minor students,

continued to allow Father Widera to work with minor

parishioners and minor students on a daily basis, and

continued to move Father Widera around to **164 different

Catholic churches within the Defendants Dioceses[ ]."

The Milwaukee Archdiocese moved to quash service of

summons for lack of personal jurisdiction. Paino opposed

the motion.

*434 At the hearing on October 21, 2002, the court denied

the motion to quash, stating: "I'm going to deny the motion.

Al3

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

I believe that the critical issue of whether this moving party

deliberately and purposefully availed itself of the jurisdiction

of the State of California is one that requires that I deny the

motion. [{ ] The evidence is certainly sufficient to show that

the Archdiocese in Milwaukee chose to place this

troublesome member of its clergy here in California as a sort

of lend-lease program with the hope that he would be out of

their sight and out of their jurisdiction. [| ] But the danger

may or may not have been adequately explained. Even if the

danger was fully explained, I think the issue there doesn't

alter the court's conclusion about the Archdiocese of

Milwaukee's deliberate and intentional availing of the

facilities here in California. [{] ] That may well pass the

responsibility on to the Diocese of Orange, but it doesn't

mean that the Archdiocese of Milwaukee did not

intentionally avail itself of the facilities here in California. [4

] So I have to deny the motion."

The Milwaukee Archdiocese filed a petition for writ of

mandate challenging the order denying its motion to quash.

We issued an order to show cause, asked for a response to

the petition, and heard oral argument.

IV,

BURDEN OF PROOF AND STANDARD OF REVIEW

{1}[2][3] “When a nonresident defendant challenges

personal jurisdiction, the plaintiff bears the burden of proof

by a preponderance of the evidence to demonstrate the

defendant has sufficient minimum contacts with the forum

state to justify jurisdiction." (DVI, Inc. v. Superior Court

(2002) 104 Cal.App.4th 1080, 1090, 128 Cal.Rptr.2d 683;

see also Vons Companies, Inc. v. Seabest Foods, Inc- (1996)

14 Cal.4th 434, 449, 58 Cal.Rptr.2d 899, 926 P.2d 1085

(Vons ).) The plaintiff must " 'present facts demonstrating

that the conduct of defendants related to the pleaded causes

Al4

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

is such as to constitute constitutionally cognizable "minimum

contacts." [Citation.]' " (DVI, Inc. v. Superior Court, supra,

104 Cal.App.4th at pp. 1090-1091, 128 Cal.Rptr.2d 683.)

"An unverified complaint has no evidentiary value in

meeting the plaintiff's burden of proving minimum contacts."

(/d. at p. 1091, 128 Cal.Rptr.2d 683.)

[4][S5][6][7] When the evidence of jurisdictional facts is not

in dispute, whether the defendant is subject to personal

jurisdiction is a legal question subject to de novo review.

(Vons, supra, 14 Cal.4th at p. 449, 58 Cal.Rptr.2d 899, 926

P.2d 1085.) When evidence of jurisdiction is in dispute, the

triai court's determination of factual issues is reviewed for

substantial evidence. (/bid.; see also DVI, Inc. v. Superior

Court, supra, 104 Cal.App.4th at p. 1091, 128 Cal.Rptr.2d

683.) We must accept the trial court's resolution of factual

issues and draw all reasonable inferences in support of *435

the trial court's order. (J/ntegral Development Corp. v.

Weissenbach (2002) 99 Cal.App.4th 576, 584, 122

Cal.Rptr.2d 24.) "The ultimate question whether jurisdiction

is fair and reasonable under all of the circumstances, based

on the facts which are undisputed and those resolved by the

court in favor of the prevailing party, is a legal determination

warranting our independent review." (Jd. at _p. 585, 122

Cal.Rptr.2d 24.)

**165 V.

JURISDICTIONAL REQUIREMENTS

[8] Califormia courts may exercise jurisdiction over

nonresidents "on any basis not inconsistent with the

Constitution of this state or of the United States." (Code Civ.

Proc., § 410.10.) The statute "manifests an intent to exercise

the broadest possible jurisdiction, limited only by

constitutional considerations." (Sibley v. Superior Court

(1976) 16 Cal.3d 442, 445, 128 Cal.Rptr. 34, 546 P.2d 322.)

Al5

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

[9][10] Ti:> federal Constitution permits a state to exercise

jurisdiction cver a nonresident defendant if the defendant has

sufficient "minimum contacts" with the forum such that

"maintenance of the suit does not offend ‘traditional notions

of fair play and substantial justice.’ [Citations.}" (/nternat.

Shoe Co. v. Washington (1945) 326 U.S. 310, 316, 66 S.Ct.

154, 90 L.Ed. 95.) "The ‘substantial connection,' [citations],

between the defendant and the forum State necessary for a

finding of minimum contacts must come about by an action

of the defendant purposefully directed toward the forum

State. [Citations.]" (Asahi Metal Industry Ce v. Superior

Court (1987) 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d

92.)

[11][12][13] "Personal jurisdiction may be either general or

specific." (Vons, supra, 14 Cal.4th at p. 445, 58 Cal.Rptr.2d

899, 926 P.2d 1085.) A nonresident defendant is subject to

the forum's general jurisdiction where the defendant's

contacts are " ‘substantial ... continuous and systematic.’ "

(Ibid., quoting Perkins v. Benguet Consol. Mining Co. (1952)

342 U.S. 437, 445, 446, 72 S.Ct. 413, 96 L.Ed. 485.) In that

situation, the cause of action need not be related to the

cefendant's contacts. (Vons, supra, 14 Cal.4th at p. 445, 58

Cal.Rptr.2d_ 899, 926 P.2d 1085; Cornelison_v. Chaney

(1976) 16 Cal.3d 143, 147, 127 Cal.Rptr. 352, 545 P.2d 264.)

"Such a defendant's contacts with the forum are so wide-

rangin,’ that they take the place of physical presence in the

forum as a basis for jurisdiction." (Vons, supra, 14 Cal.4th at

p. 446, 58 Cal.Rptr.2d 899, 926 P.2d 1085.)

[14] If the nonresident defendant does not have substantial

and systematic contacts with the forum state, the defendant

may be subject to specific jurisdiction if (1) " 'the defendant

has purposefully availed himself or herself of forum benefits'

" with respect to the matter in controversy, (2) " 'the *436

Al6

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

"controversy is related to or ‘arises out of' [the] defendant's

contacts with the forum," ' " and (3) the exercise of

jurisdiction would comport with fair play and substantial

justice. (Pavlovich, supra, 29 Cal.4th at p. 269, 127

Cal.Rptr.2d 329, 58 P.3d 2; Vons, supra, 14 Cal.4th at pp.

446, 447, 58 Cal.Rptr.2d 899, 926 P.2d 1085; see also

Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472,

476, 105 S.Ct. 2174, 85 L.Ed.2d 528.)

VI.

DISCUSSION

Paino does not assert the Milwaukee Archdiocese is subject

to general jurisdiction in California. He contends the trial

court was correct in concluding the Milwaukee Archdiocese

was subject to specific jurisdiction because the Milwaukee

Archdiocese purposefully availed itself of forum benefits by

taking actions to move Widera, a known pedophile, into

California, where he continued to molest boys.

A. Purposeful Availment

[15][16][17] The purposeful availment inquiry focuses on

the defendant's " ‘intentionality’ " and is satisfied " 'when the

defendant purpesefully and voluntarily directs his activities

toward the forum so that he should expect, by virtue of the

**166 benefit he receives, to be subject to the court's

jurisdiction based on' his contacts with the forum."

(Pavlovich, supra, 29 Cal.4th at p. 269, 127 Cal.Rptr.2d 329,

58 P.3d 2.) The purposeful availment requirement is intended

to ensure a defendant will not be haled into a jurisdiction

solely as a result of " 'random,' 'fortuitous,' or ‘attenuated’ "

contacts, or as a result of the " ‘unilateral activity’ " of

another party or a third person. (/bid.) Purposeful availment

asks whether the defendant's "conduct and connection with

the forum State are such that he should reasonably anticipate

aL

Al7

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

being ha’ed into court there." (World-Wide Volkswagen

Corp. v. Vi'vodson (1980) 444 U.S. 286, 297, 100 S.Ct. 559,

62 L.Ed.2c 490.)

1. Express Aiming or Targeting

[18] Under the "effects" test for determining purposeful

availment, a defendant might be subject to jurisdiction in the

forum state if the defendant engaged in intentional conduct

"expressly aimed at or targeting the forum state," and the

defendant knew the intentional conduct would cause harm in

the forum. (Pavlovich, supra, 29 Cal.4th at p. 271, 127

Cal.Rptr.2d 329, 58 P.3d 2.)

In Pavlovich, supra, 29 Cal.4th at page 262, 127 Cal.Rptr.2d

329, 58 P.3d 2, the Supreme Court cozsidered whether a

California court properly exercised personal jurisdiction over

a defendant based upon the posting of an Internet Web site.

Pavlovich was a *437 Texas resident and had no contacts

with California. (/d. at p. 266, 127 Cal.Rptr.2d 329, 58 P.3d

2.) He founded and was leader of a video project which

operated a Web site that posted the source code of a program

named DeCSS. (Jd. at pp. 266-267, 127 Cal.Rptr.2d 329, 58

P.3d 2.) DeCSS allowed a user to circumvent the Content

Scrambling System (CSS), which prevents the playing or

copying of copyrighted motion pictures recorded on digital

versatile discs (DVD's). (ibid.) In short, DeCSS allowed a

user to download copyrighted movies onto the user's hard

drive or other storage media. (/bid.)

DVD Copy Control Association, Inc. (DVD CAA), is a

nonprofit trade organization organized under Delaware law

with its principal place of business in California. (Pavlovich,

supra, 29 Cal.4th at p. 266, 127 Cal.Rptr.2d 329, 58 P.3d 2.)

DVD CAA's purpose was to control and administer licensing

of CSS technology. (/bid.) DVD CAA sued Pavlovich in

Als

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

California, alleging he misappropriated its trade secreis by

posting the DeCSS program on his Web site. (/d. at p. 267,

127 Cal.Rptr.2d 329, 58 P.3d 2.) The evidence showed

Pavlovich knew of an organization which controlled the use

of CSS technology, but did not learn that organization was

DVD CAA or that DVD CAA had its principal place of

business in California until after the lawsuit was filed. (/bid.)

DVD CAA asserted personal jurisdiction on the ground

Pavlovich knew his actions would harm California

businesses.

The California Supreme Court examined and clarified the

effects test for determining purposeful availment.

(Pavlovich, supra, 29 Cal.4th 262, 127 Cal.Rptr.2d 329, 58

P.3d 2.) The court turned first to Calder v. Jones (1984) 465

U.S. 783, 104 §.Ct. 1482, 79 L.Ed.2d 804 (Calder ) in which

the United States Supreme Court described the " ‘effects test'

" in the defamation context. (Pavlovich, supra, 29 Cal.4th at

p. 269, 127 Cal.Rptr.2d 329, 58 P.3d 2.) In Calder, a

reporter in Florida wrote an article for the National Enquirer

about Shirley Jones, a well-known actress who lived and

worked in California. Jones sued the reporter and the editor

for libel in California. They moved to quash service of

process on the ground they **167 lacked minimum contacts

with California. (Calder, supra, 465 U.S. at pp. 785-786,

104 S.Ct. 1482.) The United States Supreme Court

disagreed, and upheld jurisdiction because "[t]he allegediy

libelous story concerned the California activities of a

California resident. It impugned the professionalism of an

entertainer whose television career was centered in

California.... [T]he brunt of the harm, in terms both of

respondent's emotional distress and the injury to her

professional reputation, was suffered in California. In sum,

California is the focal point both of the story and of the harm

suffered. Jurisdiction over petitioners is therefore proper in

California based on the ‘effects' of their Florida conduct in

Al9

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

California." (Jd. at pp. 788-789, 104 S.Ct. 1482, fn.

omitted.) The defendants' intentional conduct was "expressly

aimed at California," where the defendants knew it

potentially would harm Jones. (Jd. at p. 789, 104 S.Ct. 1482.)

The Pavlovich court recognized the lack of uniformity in

applying the Calder test. (Pavlovich, supra, 29 Cal.4th at p.

270, 127 Cal.Rptr.2d 329, 58 P.3d 2.) In particular, the *438

Pavlovich court acknowledged that courts have struggled

over whether Calder stands for the broad proposition that a

foreign act with foreseeable effects in the forum state always

gives rise to specific jurisdiction. (Jbid.) The Pavlovich court

reviewed federal and out-of-state cases and concluded,

"virtually every jurisdiction has held that the Calder effects

test requires intentional conduct expressly aimed at or

targeting the forum state in addition to the defendant's

knowledge that his intentional conduct would cause harm in

the forum." (/d. at p. 271, 127 Cal.Rptr.2d 329, 58 P.3d 2,

fn. omitted.) The Pavlovich court "join[ed] with those

jurisdictions that require additional evidence of express

aiming or intentional targeting." (/d. at p. 273, 127

Cal.Rptr.2d 329, 58 P.3d 2.)

Applying the effects test, the Pavlovich court concluded

Pavlovich was not subject to California jurisdiction because

there was no evidence the Web site targeted California or

any California resident visited the Web site. (Pavlovich,

supra, 29 Cal.4th at p. 274, 127 Cal.Rptr.2d 329, 58 P.3d 2.)

The court concluded Pavlovich's knowledge that his tortious

conduct might harm certain industries centered in California,

though relevant to any determination of personal jurisdiction,

"alone is insufficient to establish express aiming at the forum

state as required by the effects test." (/d. at p. 278, 127

Cal.Rptr.2d 329, 58 P.3d 2.)

2. Application of Effects Test

A20

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

[19] Did the Milwaukee Archdiocese engage in intentional

conduct expressly aimed at or targeting California, knowing

the intentiona! conduct would cause harm in this state? The

evidence supports the conclusion the Milwaukee

Archdiocese intentionally sent Widera to California to get

him out of Wisconsin where he had been convicted of sexual

perversion against a boy and could create further problems

for the Milwaukee Archdiocese. As the trial court

cencluded, "the evidence is certainly sufficient to show that

the Archdiocese of Milwaukee chose to place this

troublesome member of its clergy here in California as a sot

of lend-le2. program with the hope that he would be out of

their sight and out of their jurisdiction." The evidence

supported the conclusion the Milwaukee Archdiocese knew

Widera was a pedophile and posed a serious threat of

sexually abusing boys in California. By sending a known

pedophile into California, the Milwaukee Archdiocese aimed

its intentional conduct directly at this state. The brunt of the

harin, indeed all of the harm, resulted in California. Having

sent Widera into California knowing he was a convicted

child abuser and a pedophile, the Milwaukee **168

Archdiocese reasonably could expect to be haled into court

in California to answer for the consequences of its actions.

The Milwaukee Archdiocese contends the evidence does not

support a finding of purposeful availment. The Milwaukee

Archdiocese contends Widera voluntarily moved to

California in 1976 because he had family here. *439 The

evidence supports a contrary conclusion. As part of his

sentence for sexual perversion, Widera was ordered not to

return to the Port Washington, Wisconsin area. Henke, the

pastor of St. Andrew's Parish, wanted Widera removed.

Concerns were raised over whether Widera could "in

conscience" be reassigned within the Milwaukee

Archdiocese "in view of Widera's record." A cover story

A21

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

was created: Widera would go " 'on vacation’ " to California.

In the ombudsman's notes, the words "on vacation" were set

off by quotation marks. When asked why he was leaving,

Widera was instructed to say "only that he's going on

vacation." After going to California, Widera wrote: "It was

on advice that I left the area."

Once Widera was in California, the Milwaukee Archdiocese

never recalled him, although it had the power to do so, never

questioned him, never monitored his treatment, and never

conducted an investigation to determine whether he

continued to molest boys. The Milwaukee Archdiocese

allowed Widera to be excardinated so he could be

incardinated in the Orange Diocese. Accepting the trial

court's resolution of factual issues and drawing all reasonable

inferences in support of the trial court's order (/ntegral

Development Corp. v. Weissenbach, supra, 99 Cal.App.4th at

p. 584, 122 Cal.Rptr.2d 24), we conclude the evidence

supports the finding that the Milwaukee Archdiocese made

and enacted a concerted plan to nid itself of Widera by

intentionally placing him in California.

The Milwaukee Archdiocese contends it sufficiently

disclosed Widera's prior misconduct to the Orange Diocese.

The Milwaukee Archdiocese points to Cousins's letter of

December 20, 1976, in which Cousins wrote that Widera

"{iJn his earlier years" had "a moral problem having to do

with a boy in school" and that "{[mJore recently ... there has

been a repetition." |

Is it relevant to the "effects" test whether or not the

Milwaukee Archdiocese disclosed Widera's prior misconduct

to the Orange Diocese? No. The Milwaukee Archdiocese rid

itself of Widera by sending him into California, knowing he

was a pedophile and had been convicted of perversion with a

boy. The Milwaukee Archdiocese's conduct was intentional

A22

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

and was expressly aimed at California. The Milwaukee

Archdiocese knew its intentional conduct would cause harm

in California. Thus, the Milwaukee Archdiocese's conduct

satisfied the "effects" test, regardless whether it gave the

Orange Diocese "fair warning" of Widera's prior misconduct.

Even if considered, Cousins's letter, with all reasonable

inferences favoring the trial court's order (/ntegral

Development Corp. v. Weissenbach, supra, 99 Cal.App.4th at

p. 584, 122 Cal.Rptr.2d 24), supports the conclusion the

Milwaukee Archdiocese engaged in express aiming at or

targeting California. The letter appears to be intentionally

vague and incomplete; it does not describe what is meant by

"a *440 moral problem," does not disclose when the "moral

problem" occurred, does not identify the repetition, and, most

importantly, does not disclose Widera's criminal conviction

for sexual perversion. The letter states, "there would seem no

great risk in allowing [Widera] to return to pastoral work"

when, in fact, there was great risk in allowing Widera to be

near boys. In fact, the record contains no evidence the

Milwaukee Archdiocese ever informed the Orange Diocese

**169 of Widera's criminal conviction or specifically

described his misconduct.

Another issue remains in applying the effects test. In

Pavlovich, supra, 29 Cal.4th 262, 127 Cal.Rptr.2d 329, 58

P.3d 2, the court concluded Pavlovich's knowledge that his

tortious conduct might harm certain industries centered in

California was not dispositive of jurisdiction. "Because the

only evidence in the record even suggesting express aiming

is Pavlovich's knowledge that his conduct may harm

industries centered in California, due process requires us to

decline jurisdiction over his person." (Jd. at p. 278, 127

Cal.Rptr.2d 329, 58 P.3d 2.) Some federal courts, in

formulating the effects test, have concluded " ‘express

aiming’ encompasses wrongful conduct individually targeting

A23

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

a known forum resident." (Bancroft & Masters, Inc. v.

Augusta Nat. Inc. (9th Cir.2000) 223 F.3d 1082, 1087; see

also, e.g., Cybersell, Inc. v. Cybersell, Inc. (9th Cir.1997)

130 F.3d 414, 416.)

Here, the Milwaukee Archdiocese did not know who Paino

was and could not have expressly aimed its conduct at him.

However, we do not believe the effects test required the

Milwaukee Archdiocese to know the identities of Widera's

future victims. This is not a situation, as in Pavlovich, where

the defendant's conduct could harm any of a number of

industries and businesses, some of which might be centered

in California. The nature of the Milwaukee Archdiocese's

conduct--sending a pedophile priest directly into California--

meant the Milwaukee Archdiocese's conduct would harm

California residents. In other words, the Milwaukee

Archdiocese's conduct targeted a known group of California

residents--boys, specifically, Roman Catholic boys-- as a

means of getting Widera out of the Milwaukee Archdiocese.

Such targeting is, we believe, sufficiently individualized to

satisfy due process because the Milwaukee Archdiocese

could reasonably anticipate being haled into court in

California.

The Milwaukee Archdiocese argues the case of Doe v.

Roman Catholic Diocese of Boise, Inc. (N.M.Ct.App.1996)

121 N.M. 738, 918 P.2d 17 is "strikingly similar" and

supports quashing service of summons. We disagree. In that

case, the Roman Catholic Bishop of Boise granted a priest's

request to leave Idaho and seek assignment as a priest

elsewhere. (/d. at p. 740, 918 P.2d 17.) The priest went to

New Mexico, where he was accused of molesting a boy.

(Ibid.) The New Mexico Court of Appeals held the Roman

Catholic Diocese of Boise was not subject to jurisdiction in

New Mexico *441 because the diocese played no part in the

priest's decision to settle in New Mexico, but only granted

A24

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

the priest permission to leave Idaho. "The fact that after the

Boise Diocese gave Father Garcia permission to leave Idaho,

Father Garcia subsequently selected New Mexico from

among several other possible diocesan destinations in which

to seek employment as a priest does not constitute a

purposeful act by the Boise Diocese to avail itself of the

benefits and protections of New Mexico law." (/d. at p. 744,

918 P.2d 17.)

Here, in stark contrast, the Milwaukee Archdiocese did not

merely approve a request to work outside the Milwaukee

Archdiocese or acquiesce in Widera's move. Rather, the

evidence supports the finding the Milwaukee Archdiocese

sought to rid itself of Widera by intentionally sending him

into California.

We conclude Paino met his burden of proving by a

preponderance of the evidence that under the effects test, the

Milwaukee Archdiocese's conduct met the purposeful

availment requirement for specific jurisdiction in California.

In reaching this conclusion, we do not, and need not, **170

consider Canon Law; accordingly, we deny Paino's request

for judicial notice.

B. Relationship Between the Milwaukee Archdiocese's

Contacts and the Forum

[20][21] We next determine whether Paino's claims are

related to or arise out of the Milwaukee Archdiocese's forum

contacts. (Pavlovich, supra, 29 Cal.4th at p. 269, 127

Cal.Rptr.2d 329, 58 P.3d 2.) "A claim need not arise directly

from the defendant's forum contacts in order to be

sufficiently related to the contact to warrant the exercise of

specific jurisdiction. Rather, as long as the claim bears a

substantial connection to the nonresident's forum contacts,

the exercise of specific jurisdiction is appropriate." (Vons,

A25

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

supra, 14 Cal.4th 434, 452, 58 Cal.Rptr.2d 899, 926 P.2d

1085; see also Cornelison v. Chaney, supra, 16 Cal.3d 143,

148, 127 Cal.Rptr. 352, 545 P.2d 264 ["The crucial inquiry

concerns ... whether the cause of action arises out of or has a

substantial connection with [the forum] activity"].)

Paino alleged, "[i]n or about 1985, when Plaintiff was about

8 years old, and continuing through when Plaintiff was 9

years old, Father Widera molested Plaintiff and Plaintiff's

brother." Paino alleged the Milwaukee Archdiocese knew

Widera had sexually abused boys but "covered up the

molestations and abuses," continued to allow Widera to act

as a Catholic priest, held out Widera as a priest who could be

trusted with minors, and continued to allow Widera to work

with minors.

Paino's claims bear a_ substantial connection to the

Milwaukee Archdiocese's forum contacts. As explained

above, the evidence supports the *442 conclusion the

Milwaukee Archdiocese purposefully availed itself of forum

benefits by engaging in intentional conduct expressly aimed

at California. That conduct consisted of ridding itself of

Widera by sending him to California. Paino alleged Widera-

-the man whom the Milwaukee Archdiocese sent to

California--molested him. Paino's claims for sexual abuse

arise out of the same kind of conduct that prompted the

Milwaukee Archdiocese to send Widera to California.

The Milwaukee Archdiocese argues it had no connection

with California at the time Paino was allegedly molested. As

the Milwaukee Archdiocese argues, the Orange Diocese was

responsible for Widera's assignments after 1977, Widera was

incardinated in the Orange Diocese in 1981, and Paino was

not allegedly molested until four years later. In essence, the

Milwaukee Archdiocese is asserting its conduct could not

have caused Paino's injuries because, at least by 1981, the

A26

112 Cal.App.4th 423, 5 Cel. Rptr.3d 154

Orange Diocese had assumed responsibility for Widera. In

Vons, supra, 14 Cal.4th at pages 460-467, 58 Cal.Rptr.2d

899, 926 P.2d 1085, the California Supreme Court firmly

rejected a proximate cause test for analyzing the relation

between the defendant's forum contacts and the plaintiff's

claims in determining specific jurisdiction. "To require that

the injury be proximately caused by the forum contact is to

require that the injury ‘arise out of' the forum contact in the

strictest sense. Such a requirement is inconsistent with the

formulation that appears in [United States Supreme Court

authority].... [Citations.] ... [and] is inconsistent with the

relevant standard in Cornelison [v. Chaney }...." (Id. at p.

462, 58 Cal.Rptr.2d 899, 926 P.2d 1085.)

[22] Thus, for jurisdiction purposes, the question is not

whether the Milwaukee Archdiocese's forum contacts were

the proximate cause of Paino's injuries, but whether Paino's

claims "bear[ ] a substantial connection" to those contacts.

(Vons, supra, 14 Cal.4th at p. 452, 58 Cal.Rptr.2d 899, 926

P.2d 1085.) We conclude Paino's **171 claims are

substantially connected to the Milwaukee Archdiocese's

intentional conduct expressly aimed at California.

C. Fair Play and Substantial Justice

[23][24][25| Having determined the Milwaukee

Archdiocese established minimum contacts with California

and those contacts are substantially related to Paino's claims,

we must consider whether the assertion of specific

jurisdiction is fair. In assessing fairness, we consider (1) the

burden on the Milwaukee Archdiocese of defending in

California, (2) California's interests, (3) Paino's interest in

obtaining relief, (4) the interstate judicial system's interest in

obtaining the most efficient resolution of the controversy,

and (5) " 'the shared interest of several States in furthering

fundamental substantive social policies.’ " (Asahi Metal

A27

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

Industry Co. v. Superior Court, supra, 480 U.S. at p. 113,

107 S.Ct. 1026; see also Vons, supra, 14 Cal.4th at p. 476,

58 Cal.Rptr.2d 899, 926 P.2d 1085.) The defendant bears the

*443 burden of presenting a "compelling case" that

jurisdiction would be unreasonable. (Burger King Corp. v.

Rudzewicz, supra, 471 U.S. 462, 477, 105 S.Ct. 2174, 85

L.Ed.2d 528; Integral Development Corp. v. Weissenbach,

supra, 99 Cal.App.4th at p. 591, 122 Cal.Rptr.2d 24.)

Although the Milwaukee Archdiocese is a not-for-profit

organization, it is sufficiently large that defending itself in

California would not impose an unreasonable burden on it.

California has a particularly strong interest in asserting

jurisdiction over the Milwaukee Archdiocese. California has

an interest in protecting its children from sexual abuse and

providing them a forum to assert such claims. California

also has an interest in not becoming the target for pedophiles

from other jurisdictions. Paino, a California resident,

certainly has an interest in obtaining relief in California for

alleged sexual molestation occurring in California. Asserting

jurisdiction over the Milwaukee Archdiocese in California

would provide the most efficient resolution of the

controversy because Paino's claims against the Orange

Diocese are pending here. Finally, Wisconsin and California

have a shared interest in furthering the social policy of

protecting children from sexual abuse; that social policy is

furthered by asserting jurisdiction over the Milwaukee

Archdiocese in California.

We therefore conclude assertion of jurisdiction over the

Milwaukee Archdiocese is fair.

A28

112 Cal.App.4th 423, 5 Cal.Rptr.3d 154

DISPOSITION

The Milwaukee Archdiocese's petition for writ of mandate is

denied. Paino shall recover his costs incurred im this

proceeding.

WE CONCUR: SILLS, P.J., and RYLAARSDAM, J.

5 Cal.Rptr.3d 154, 112 Cal.App.4th 423, 3 Cal. Daily Op.

Serv. 8847, 2003 Daily Journal D.A.R. 11,117

END OF DOCUMENT

A29

Court of Appeal, Fourth Appellate District,

Division Three - No. G03 1386

$120214

IN THE SUPREME COURT OF CALIFORNIA

En Banc

THE ARCHDIOCESE OF MILWAUKEE, Petitioner,

V.

SUPERIOR COURT OF ORANGE COUNTY, Respondent;

ERIC NATHAN PAINO, Real Party in Interest.

Application to appear pro hac vice DENIED.

Petition for review DENIED.

/s/

Chief Justice

Bl

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.