Opposition Brief — Archdiocese of Milwaukee v. Superior Court of California

7) Supreme | see

os FILED

MAY 19 2004

No. 03-1444 OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

ARCHDIOCESE OF MILWAUKEE,

Petitioner,

VS.

SUPERIOR COURT OF CALIFORNIA, ORANGE COUNTY

Respondent,

and

ERIC NATHAN PAINO,

Real Party-in-Interest

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL, STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION THREE

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

KATHERINE K. FREBERG

Counsel of Record

LAW OFFICES OF FREBERG & ASSOCIATES

8001 Irvine Center Drive, Suite 1070

Irvine, California 92618

(949) 453-1111

Counsel jor Real Party-in-Interest

ERIC NATHAN PAINO

Lawyers Brief Service Appellate Brief Printers * (213) 613-1013 * (949) 720-1510

@ BEST AVAILABLE COPY

No. 03-1444

IN THE

Supreme Court of the United States

ARCHDIOCESE OF MILWAUKEE,

Petitioner,

VS.

SUPERIOR COURT OF CALIFORNIA, ORANGE COUNTY

Respondent,

and

ERIC NATHAN PAINO,

Real Party-in-Interest

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL, STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION THREE

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

KATHERINE K. FREBERG

Counsel of Record

LAW OFFICES OF FREBERG & ASSOCIATES

8001 Irvine Center Drive, Suite 1070

Irvine, California 92618

(949) 453-1111

Counsel for Real Party-in-Interest

ERIC NATHAN PAINO

TABLE OF CONTENTS

Page

oy Ok Pes eg | Fa i

TABLE OF AUTHORITIES ...... cv ccccccccvcccces ill

RUPEE BP COP PPOLIIOON onc ccc cc ccc cccvcecccceees l

Pe eee ee THI CAGE ww wc cc cccccc cscs 2

l EE ie ee ee 2

2. Factual Background .................. 3

A. Father Widera Is Convicted

Of Child Molestations In

es wey 4

B. Other Incidents Of Child

Molestations By Widera

Ee 5

ih Widera Goes “On Vacation

To California And Takes

Faculties In Orange ............ 8

D. Widera Is Excardinated From

The Milwaukee Archdiocese

And Incardinated In The

Orange Diocese .............: 13

a Proceedings Below ......cccccvcnccs 13

REASONS WE. Y THE PETITION

SHUULD BE DENIED ... nc cccessescenens 15

1. The Court of Appeal Did Not

Make The Factual Findings Set

Forth In Milwaukee’s

“Questions Presented” .........050: 15

a The Petitioner’s Real

Quibble Is That The

Court of Appeal

Erred {n Interpreting

The Facts Of This Case ...........0:5. 17

3. Neither The Decision Nor

The Record Below Raises The

First Question Presented ............. 20

4. The Decision By The California

Court of Appeal Is Consistent

With The Decisions Of This

OR CRE CO nce ce ecccnes 24

6 eR er er ee re eee eT ee 29

APPENDIX

TABLE OF AUTHORITIES

CASES

Adams v. Robertson

SE ss BO RNOETD as 8500 10040045

Archdiocese of Milwaukee v.

Superior Court of Orange County

112 Cal. App. 4th 423 (2003)........

Board of Dirs. of Rotary Int’l v.

Rotary Club of Duarte

ee ee), 2 ree

Calder vy. Jones

465 U.S. 763 (1964) 2. ccc cevcces

Doe v. Roman Catholic Diocese

of Boise, Inc.

121 N.M. 738

(Ct. App. New Mexico 1996)........

Doe 1-22 v. Roman Catholic

Bishop of Fall River

509 N.W. 2d 598 (Minn. 1993) ......

General Council v. Superior Court of California

439 U.S. 1355,

Or BCR, SO CTPFE) ni cscs vvewtens

Page

Hernandez v. New York

OR ee re

John Does 1-9 v. CompCare, Inc.

52 Wash. App. 688,

7163 P20 VZST CISBSS) ccc ec ccccsecens

Locke v. Warner Bros., Inc.

57 Cal. App.4th 354,

66 Cal. Rptr.2d 921 (1997) ........05:

Miller v. Fenton

474 U.S. LOS (IDES). wc vccvereeccvees

Nemarnik v. Los Angeles Kings Hockey Club

103 Cal. App.4th 631,

127 Cal. Rptr.2d 10 (2002) ...........

Pavlovich v. Superior Court

29 Cal. 4" 262,

127 Cal. Rtpr. 2d 329 (2002) ..........

Serbian Orthodox Diocese v. Milivojevich

406 UB, GOOCEDIG) © occ ccccscacces

Tiernan y. Trustees of Cal. State

University & Colleges

33 Cal.3d 211,

188 Cal. Retr. 115 (19GZ) ow. sence cen

iV

er

}

RULES

United States Supreme Court Rules

ry err eee 19

V

No. 03-1444

IN THE

SUPREME COURT OF THE UNITED STATES

ARCHDIOCESE OF MILWAUKEE

Petitioner,

VS.

SUPERIOR COURT OF CALIFORNIA,

ORANGE COUNTY

Respondent,

and

ERIC NATHAN PAINO,

Real Party-In-Interest

On Petition For Writ Of Certiorari

To The Court Of Appeal, State of California

Fourth Appellate District, Division Three

REAL PARTY-IN-INTEREST’S

BRIEF IN OPPOSITION

Real Party-in-Interest Eric Nathan Paino respectfully

requests that this Court deny the Petition for Writ of

Certiorari filed by Petitioner Archdiocese of Milwaukee,

l

seeking review of the California Court of Appeal’s decision

in this case. That opinion is reported at Archdiocese of

Milwaukee v. Superior Court of Orange County, 112 Cal.

App. 4th 423 (2003).

STATEMENT OF THE CASE

1. Introduction. |

In 1976, the Roman Catholic Archdiocese of

Milwaukee (the Milwaukee Archdiocese) purposefully

transferred to California Father Siegfried Widera, a priest who

iad been criminally convicted of child molestations three

years earlier. The reason why the Milwaukee Archdiocese

wanted to move Father Widera into California was because it

learned that the priest had molested again, and because of

“legal technicalities,” he needed to- get out of the State of

Wisconsin. The Archbishop of Milwaukee solicited and

received the help of the Diocese of Orange (Orange Diocese)

to get Father Widera out of Wisconsin, and into a new

position as a California priest.

The intentional and completely reckless acts by these

two dioceses had a devastating impact in California. Father

Widera went on to molest numerous other Catholic boys in

California, including Real Party-in-Interest Eric Nathan

Paino.

Paino sued the Milwaukee Archdiocese in California

for its complicity in intentionally transferring this known

pedophile into California. The Milwaukee Archdiocese

moved to quash the summons, arguing that the California

courts could not exercise personal jurisdiction over it, and

z

OE eee eee

therefore, the California courts could not hold the Milwaukee

Archdiocese accountable for its actions.

Both the trial court and the Court of Appeal disagreed

with the Milwaukee Archdiocese. Ina published decision, the

Court of Appeal held:

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.

Archdiocese of Milwaukee v. Superior Court of Orange

County, 112 Cal. App. 4th 423, 426 (2003). The California

Supreme Court denied the Archdiocese’s petition for review.

The Milwaukee then filed this Petition for Writ of Certiorari.

Factual Background.

Throughout its Petition for Writ of Certiorari, the

Milwaukee Archdiocese continues to try to dispute the Court

of Appeal’s factual conclusions as to what really happened

3

when Father Widera was transferred into California. The

Milwaukee Archdiocese tries to argue that Father Widera just

decided go to California on his own to visit his family, that

the Archdiocese just innocently acquiesced to his traveling to

California, and that the only thing the Archdiocese did was

fail to prevent Father Widera from working in California. As

seen by the Court of Appeal’s decision, nothing is further

from the truth. Here are the factual conclusions made by the

Court of Appeal! in deciding the personal jurisdiction issue.

A. Father Widera Is Convicted of Child

Molestations in Wisconsin.

Father Widera was ordained and incardinated into the

Milwaukee Archdiocese in 1967. Archdiocese of Milwaukee,

112 Cal. App. 4th at 427. On July 2, 1973, a criminal

complaint for sexual perversion was filed against Widera.

The complaint alleged:

Frank Siegfried Widera, and

[minor boys’ names omitted in

original] went from Port Washington to

Random Lake . . . and in the course of

traveling to Random Lake...

[minor boy’s name omitted in original] placed

his mouth over the penis of Frank Siegfried

Widera.

Id. At the time of his arrest, Widera had been serving as a

priest at St. Mary’s in Port Washington, Wisconsin. /d. Less

than one month after Widera’s arrest, on July 31, 1973, the

Archbishop of the Milwaukee Archdiocese, William E.

Cousins, ordered the immediate transfer of Widera from St.

4

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2

3

Mary’s. /d. Two weeks later, on August 13, 1973, Widera

pled guilty and was sentenced to three years’ probation. Jd.

The following day, on August 14, 1973, a document from the

Archdiocesan Personnel Board (the board which assisted the

Archbishop and offered recommendations regarding priest

placement) stated:

Communication from Archbishop Cousins to

J. 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 3 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 Graham

twice per week.

Id. at 427.

B. Other Incidents of Child Molestations by

Widera In Wisconsin.

The Milwaukee Archdiocese knew that the child

molestation resulting in Widera’s conviction was not an

isolated incident. /d. In early September 1973, Father

Rolland Glass, the pastor at St. Mary’s, discussed Father

Widera with Father Paul Esser. 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. . . [J] 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.

[]] Fr. Glass had reports for some time from

within and without the parish that something

was wrong. [§] He coached the boys in

basketball. He would be in the shower with

the boys — all in the nude. When an adult

male entered the shower, Fr. [ Widera] covered

himself with a towel . . . [§]] 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. [4] Fr. Glass’ mother told Glass

that Fr. [Widera] on at least one occasion had

a boy sleep with him overnight in the rectory.

[{] 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.

There was a pattern of contact with small

bo[ ys}.

Id. at 427-28.

In September 1973, while on probation for the

criminal conviction, Widera was transferred io St. Andrews

6

in Delavan, Wisconsin. /d. at 428. Widera was allowed to

work with children there, and in a matter of months after the

criminal conviction, letters were written by the St. Andrews

school board and St. Andrews parishioners to the Milwaukee

Archdiocese, praising Father Widera’s abilities with children.

Id. The Milwaukee Archdiocese responded to each of these

letters, but did not disclose Widera’s conviction or other

reports of possible child molestations. Jd.

On June 29, 1976, more allegations were made against

Widera. The Milwaukee Archdiocese’s ombudsmen’s notes

of June 29, 1976 state:

Archbishop called — Mike Short, a therapist in

Elkhorn, had called in to Bob Sampon - Short

is a counselor and now advocate for [redacted

text]. She reported to Shoit 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 Parish and will receive in-

patient ireatment, if necessary.

Id. at 428-29. The ombudsman’s July notes contain Widera’s

admission that he made “a slip.” Jd. at 429. The ombudsman

told Father Widera that he would “try to keep the lid on the

thing, so no police record would be made,” but advised him

that he would probably would be transferred and would

require in-patient treatment. Jd. The ombudsman then

contacted Short, who indicated he would contact the victim’s

mother and “convince her not to act with police, if Church

7

removes W. from parish, and gets him help, as well as

counsels the boy.” /d. The ombudsman also advised Widera

he would be transferred from St. Andrews at the conclusion

of his probation, and told Widera to stay away from several

other boys Father Widera had been seen with. Jd.

On August 20, 1976, Father Eugene B. Henke, pastor

of St. Andrews, reported an allegation regarding Widera to

the Archdiocesan Personnel Board. The Archdiocesan

Personnel Board notes state: “8/20/76 - telephone - E. Henke

- informed that S. Widera has had an incident with an 11 year

old boy acouple of months ago.” Jd. It was not clear whether

the allegations reported by Henke were the same as those

reported to the ombudsman by Short. Jd.

C, Widera Goes “On Vacation” To California

And Takes Faculties In Orange.

On the same day, August 20, 1976, the ombudsman

spoke with both Widera and Henke. The ombudsman wrote

“Called Henke and Widera - they agreed that W. would go

‘on vacation’ (California!) ...{Widera] would be transferred.

W. should tell people only that he’s going on vacation.” /d.

On August 23, 1976, the ombudsman informed Archbishop

Cousins of the “developments,” and Widera soon left for

California. Jd. On August 27, 1976, the ombudsman wrote:

Approached Esser about above — _ the

Personnel Board has heard nothing from

anyone - Archbishop has not spoken to

Personnel Board about this matter. -—

However, Paul [Esser] would have a problem

8

in conscience to re-assign Siegfried - when?

And should they really - in view of Widera’s

record???

Id. at 429-30. On October 29, 1976, John Waldbauer, the

executive secretary of the Archdiocesan Personnel Board sent

Widera a letter, stating:

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 appointment 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.

Id. at 430. On December 3, 1976, Archbishop Cousins told

the Archdiocesan Personnel Board that "S. Widera—will 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." /d. Cousins’ authorization

was necessary for Widera to work as a priest outside of the

Milwaukee Archdiocese. Jd. On December 17, 1976, Cousins

told the board that he had “called Bishop Johnson in Orange

about possibility for S. Widera.” Jd.

9

On December 20, 1976, Cousins sent a letter to the

bishop of the Orange Diocese, Bishop William Johnson, and

the Chancellor/Secretary of the Orange Diocese, Father

Michael Driscoll:

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

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 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 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

susnicion 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 as

an associate pastor at St. Pius V Parish in Orange County,

California. /d. at 431. On January 25, 1977, Archbishop

Cousins sent a letter to Father Widera, confirming his

temporary assignment in California:

According to our earlier conversations, your

stay in California will be determined by the

il

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.

Id. The same day, Archbishop Cousins also sent a letter to

Bishop Johnson, confirming that Father Widera would remain

a 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.

Id. 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. Jd. at

432.

D. Widera Is Excardinated From the

Milwaukee Archdiocese And Incardinated

In The Orange Diocese.

In late 1981, Widera sought incardination into the

Orange Diocese. /d. Letters were written back and forth

regarding Widera's excardination from the Milwaukee

~ Archdiocese and incardination to the Orange Diocese. Jd.

None of the correspondence from the Milwaukee Archdiocese

mentioned Widera's criminal conviction. Jd. at 433. 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." Id. (italics in

original).

In July 1985, Widera was transferred to St. Martin de

Porres in Yorba Linda. Shortly thereafter, Widera started

sexually molesting Paino, an eight-year old boy who attended

St. Martin. /d.

3 Proceedings Below.

Paino sued the Milwaukee Archdiocese in California

for its complicity in intentionally transferring this known

pedophile into California. On a motion to quash the service

of the complaint filed by the Milwaukee Archdiocese, the trial

court held that “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 sort

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

their sight and out of their jurisdiction." /d. at 438. The trial

13

court denied the motion. The Milwaukee Archdiocese then

filed a writ with the California Court of Appeal.

In its Petition for Writ of Mandate, the Milwaukee

Archdiocese presented a single issue to the California Court

of Appeal: “The single issue presented in this petition is

whether Paino met his burden of proof of establishing

sufficient contacts between the Archdiocese of Milwaukee

and California relating to the real party in interest’s causes of

action such that the Archdiocese of Milwaukee was subject to

personal jurisdiction.” See Real Party-In-Interest’s Appendix,

at A-1. The Archdiocese did not mention or present any issue

relating to the First Amendment in its opening brief.'

Based on the facts discussed above, the Court of

Appeal found that the Archdiocese purposefully availed itself

of the jurisdiction of California, and therefore, was subject to

The Milwaukee Archdiocese only mentioned the First

Amendment in its reply brief-in passing in a single footnote:

Paino’s attempts to bind the Archdiocese of Milwaukee

to Widera’s contacts with California . . . would require

this Court to review and interpret Canon Law for the

religious effect of incardination in the Roman Catholic

Church. This Court is prohibited under the First

Amendment from undertaking such an analysis.

Serbian Orthodox Diocese v. Milivojevich, 426 U.S.

696 (1976). This is [sic] no way prohibits the Court

from determining whether personal jurisdiction exists in

this case.

See Real Party-In-Interest’s Appendix, at A-4 n.2.

14

the jurisdiction of California. /d. at 426. The California

Supreme Court subsequently denied review of the California

Court of Appeal decision.

REASONS WHY THE PETITION

SHOULD BE DENIED

1. The Court of Appeal Did Not Make The Factual

Findings Set Forth In Milwaukee’s “Questions

Presented.”

In its Petition, the Milwaukee Archdiocese sets forth

the following Questions Presented:

3 Does the First Amendment prohibit California from

exercising specific personal jurisdiction over the

Milwaukee Archdiocese based solely on the

Archdiocese's religious authority to deny Father

Widera the right to employment by the Diocese of

Orange?

YA Does the Due Process Clause permit California to

exercise specific personal jurisdiction over the

Archdiocese of Milwaukee because the Archdiocese

failed to prevent or hinder Father Widera from

accepting employment from the Diocese of Orange

where it was foreseeable that Father Widera might

commit a specific type of tort while employed by the

Diocese of Orange?

Thus, according to the Milwaukee Archdiocese’s

Questions Presented, the California Court of Appeal ruled

that California could exercise jurisdiction over the Milwaukee

15

Archdiocese based solely on the fact that the Milwaukee

Archdiocese had the religious authority to deny Father Widera

the right to employment by the Diocese of Orange, but that

the Milwaukee Archdiocese failed to prevent Father Widera

from accepting that employment. These Questions Presented

completely mischaracterize the findings by the Court of

Appeal.

The Court of Appeal did not make any factual finding,

or even discuss, the fact that the Archdiocese had the

“religious authority to deny Father Widera the right to

employment by the Diocese of Orange.” Likewise, the Court

of Appeal did not hold that the California courts could

exercise jurisdiction over the Milwaukee Archdiocese

because the Archdiocese “failed to prevent Father Widera

from accepting employment from the Diocese of Orange.”

Instead, the Court of Appeal ruled that affirmative actions by

the Archdiocese subjected it to California’s jurisdiction:

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. . . . 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 harm, indeed all of the harm,

16

s TOY ila ae Con diel te oa

deta Were,

resulted 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.

Id. at 438. This Court cannot answer the Questions

Presented by the Milwaukee Archdiocese. The Questions

Presented are merely hypothetical questions because they are

based on factual findings neither made nor relied upon by the

Court of Appeal in ruling that California can exercise

personal jurisdiction over the Milwaukee Archdiocese. A

ruling on the Milwaukee Archdiocese’s Questions Presented

would only be an advisory opinion by this Court.

ys The Petitioner’s Real Quibble Is That The Court

Of Appeal Erred In Interpreting The Facts Of

This Case.

The Milwaukee Archdiocese’s real argument is that

the Court of Appeal misinterpreted the facts in finding that

the Milwaukee Archdiocese purposefully availed itself of

California’s jurisdiction. Throughout the Petition, the

Milwaukee Archdiocese tries to argue that: (1) Milwaukee

did not send Father Widera to California (Petition, p. 16); (2)

Milwaukee did not direct Father Widera to travel to California

(Petition, p. 25); (3) Milwaukee did not direct Father Widera

to seek employment with the Diocese of Orange (Petition, p.

25); (4) Father Widera chose to seek employment with the

Diocese of Orange (Petition, p. 25); (5) Widera chose

California because he had family there (Petition, p. 16); and

(6) Milwaukee only failed to prevent or hinder Father Widera

17

from accepting employment from the Diocese of Orange

(Petition, p. 21).

As discussed above, the Court of Appeal made factual

findings to the contrary:

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 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 mever 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. . . . [Thus,] the evidence

18

supports the finding that the Milwaukee

Archdiocese made and enacted a concerted

| pian to rid itself of Widera by intentionally

placing him in California.

Id. at 439.

Rule 10 of the Rules of Supreme Court states that “Tal

petition for writ of certiorari is rarely granted when the

asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule.” This Court

generally does not reexamine the state court’s findings and

conclusions of fact:

elaine ALTA EE mir at le a Atel dsm tai a Sit A ie ir ht Narn omnia

No statute or rule governs our review of facts

found by state courts [on direct review of

state-court judgments]. The reasons justifying

a deferential standard of review in other

contexts, however, apply with equal force to

our review of a state trial court’s findings of

. fact made in connection with a federal

constitutional claim. Our cases have indicated

that, in the absence of exceptional

circumstances, we would defer to the state-

court factual findings, even when those

findings relate to a constitutional issue.

[citations omitted]. Moreover, “‘an issue does

not lose its factual character merely because

its resolution is dispositive of the ultimate

constitutional question.

5 BS anh ei abit ANDO IA BRAIN A AON ant te

Hernandez v. New York, 500 U.S. 352, 366 (1991) (citing

Miller v. Fenton, 474 U.S. 104, 113 (1985)).

19

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Here, the Court of Appeal’s factual findings are

clearly supported by the evidence that the Milwaukee

Archdiocese sought to rid itself of Father Widera by sending

him into California knowing he was a pedophile. Thus, even

though the factual findings by the Court of Appeal relate to

the constitutional issue of due process, this Court should defer

to those Court of Appeal’s findings.

What the Milwaukee Archdiocese really wants this

Court to do is to overrule the Court of Appeal’s factual

findings, find that the Archdiocese was not complicit in

transferring a known pedophile into California, and find

instead that the only thing the Archdiocese did was fail to

prevent Father Widera from accepting employment from the

Diocese of Orange. Not only should this Court refuse to

overrule the Court of Appeal’s factual findings cut of

deference to that court, but also because the evidence does not

even support those conclusions.

3. Neither The Decision Nor The Record Below

Raises The First Question Presented In the

Petition.

The Milwaukee’s first Question Presented is whether

“the Free Exercise Clause of the First Amendment prohibits

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 state.”

The Court of Appeal did not decide that question in

this proceeding. In fact, nowhere does the Court of Appeal

address any First Amendment argument.

20

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a 2

The Milwaukee Archdiocese says in its Petition that

it argued before the Court of Appeal that “its religious

authority over Widera couid not provide California with a

basis for the exercise of jurisdiction consistent with the First

- Amendment,” but that the Court of Appeal ignored this

argument. Petition, p. 18, n.8. This just is not true. The

Milwaukee Archdiocese did not present any issue relating to

the First Amendment in its opening brief, and only mentioned

the First Amendment in passing in a single footnote in its

reply brief. See Real Party-In-Interest’s Appendix, at A-1 &

A-2.

The Milwaukee Archdiocese bears the burden of

establishing affirmatively that it properly presented the First

Amendment issue in the state courts. See e.g., Adams y.

Robertson, 520 U.S. 83, 88-89 & n.3 (1 997) (to obtain review

ofa state court decision, the petitioner must specifically set up

or claim a federal right, in a proper manner, in accordance

with the applicable state procedural law; “passing

invocations” are insufficient); Board of Dirs. of Rotary Int’]

v. Rotary Club of Duarte, 481 U.S. 537, 550 n.9 (1987) (a

casual reference to a federal case is insufficient to inform a

state court that it has been presented with a federal claim).

In California, “{a] party's failure to raise an issue

helow and in its opening brief constitutes a waiver."

Nemarnik v. Los Angeles Kings Hockey Club, 103 Cal. App.

4th 631, 638 n. 3, 127 Cal. Rptr. 2d 10 (2002); Tiernan v.

Trustees of Cal. State University & Colleges, 33 Cal. 3d 211,

216 n. 4, 188 Cal. Rptr. 115 (1982) (failure to raise issue on

21

appeal constitutes waiver); Locke v. Warner Bros., Inc., 57

Cal. App. 4th 354, 368, 66 Cal. Rptr. 2d 921 (1997) (failure

to raise issue in opening brief waives issue on appeal, even if

raised in the reply brief).

The Archdiocese failed to meet its burden of showing

that the First Amendment issue was properly presented to the

California Court-of Appeal. Therefore, this Court should

decline to consider that Question Presented.

Moreover, contrary to what the Milwaukee

Archdiocese now argues, a civil court can independently

examine the structure and operation of a religious entity in

ruling on a personal jurisdiction issue without violating the

First Amendment. General Council v. Superior Court of

California, 439 U.S. 1355, 1356, 99 S. Ct. 35, 26 (1978). In

General Council, several retirement home residents filed a

class action suit in California involving the financial collapse

of Pacific Homes, Inc., the operator of the retirement homes.

The residents sued a United Methodist Church organization,

alleging that Pacific Homes was the aiter ego, agency, or

instrumentality of the that religious organization. The

Methodist organization moved to quash the service of the

complaint, arguing that California could not exercise personal

jurisdiction over it.

In a request for stay, the Methodist organization

argued to the United States Supreme Court that the lower

court violated its First Amendment rights in basing its

assertion of jurisdiction on the residents’ characterization of

the organization’s role in the structure of the United

Methodist Church, and rejecting contrary testimony of church

officials and experts and statements set forth in the Book of

22

Discipline. General Council, 439 U.S. at 1370. Justice

Rehnquist rejected this argument in dicta:

In my view, [the Methodist organization]

plainly is wrong when it asserts that the First

and Fourteenth Amendments prevent a civil

court from independently examining, and

making the ultimate decision regarding, the

structure and actual operation of a hierarchical

church and its constituent units in an action

such as this. There are constitutional

limitations on the extent to which a civil court

may inquire into and determine matters of

ecclesiastical cognizance and polity in

adjudicating intrachurch disputes. [citations

omitted]. But this Court never has suggested

that those constraints similarly apply outside

the context of such intraorganization disputes.

General Council, 439 U.S. at 1372-73. Thus, the civil court

in this case was permitted to look to the Catholic church

organization and structure to determine this personal

jurisdiction issue.

Additionally, the Milwaukee Archdiocese should be

estopped from even raising a First Amendment argument in

light of the fact that the Milwaukee Archdiocese itself relied

on canon law to try to argue that it had no contact with the

State of California. For example, the Milwaukee Archdiocese

argued that “Under canon law, priests cannot be incardinated

in two dioceses at the same time. Therefore, the proper

canonical process was undertaken to effec: this transfer of

incardination.” See Real Party-In-Interest’s Appendix, at A-

23

4

4

4

*

i

2. The Milwaukee Archdiocese should not be permitted to

argue on one had that the Court of Appeal cannot review or

interpret canon law to determine the structure and actual

operation of the church, and then use canon law to support its

position.

4. The Decision By The California Court Of Appeal

Is Consistent With The Decisions Of This And

Other Courts.

Personal jurisdiction questions generally tend to

depend on the particular facts of each case. General Council

v. Superior Court of California, 439 U.S. 1355, 1373, 99 S.

Ct. 35, 39 (1978). As stated by Justice Rehnquist, “only a

marked departure by a lower court in the application of

established law would persuade four Justices to grant

certiorari.” Jd.

In this case, the Court of Appeal wrote a 20 page

published opinion. The Court of Appeal spent a great deal of

time outlining all of the facts showing the Archdiocese’s

contacts with California, demonstrating how the Archdiocese

engaged in intentional conduct expressly aimed at California,

and showing just how the Archdiocese knew its conduct

would cause harm in this state. There is no indication in this

case that the Court of Appeal failed to apply the due process

standards enunciated in this Court’s decisions.

The Milwaukee Archdiocese tries to argue that the

Court of Appeal distorted the “effects” test set forth by this

Court in Calder v. Jones, 465 U.S. 783 (1984). The

Archdiocese says that the Court of Appeal improperly used

the “effects” test by finding that the Archdiocese’s conduct --

24

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een aa ees sil

failing to prevent Father Widera from being employed by the

Orange Diocese and failing to take action to prevent possible

future harm — was expressly aimed at or targeted California.

Petition, p. 5.

Contrary to what the Archdiocese tries to say, the

Court of Appeal did properly apply this Court’s “effects” test.

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.

Milwaukee, 112 Cal. App. 4" at 436 (citing Pavlovich v.

Superior Court, 29 Cal. 4" 262, 127 Cal. Rtpr. 2d 329

(2002)). The Court of Appeal went on to discuss the “effects”

test:

The Pavlovich court recognized the lack of

uniformity in applying the Calder test.

[citation omitted]. In particular, the -

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. . . . 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

25

an

aimed at or targeting the forum state in

addition to the defendant's knowledge that his

intentional conduct would cause harm in the

forum." [citation omitted]. The Pavlovich

court "join{ed] with those jurisdictions that

require additional evidence of express aiming

or intentional targeting.”

Milwaukee, 112 Cal. App. 4" at 437-38. The Court of Appeal

went on to apply the test enunciated in Pavlovich by holding

that the Milwaukee Archdiocese engage in intentional

conduct expressly aimed at or targeting California, knowing

the intentional 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.” /d. at 438.

Moreover, the Court of Appeals held that the

Archdiocese knew that its conduct in sending this known

pedophile into California would harm California residents:

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

26

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.

Id. at 440. This holding falls squarely within this Court’s

“effects” test set forth in Calder.

The Court of Appeal’s decision is also consistent with

cases from other states in which out-of-state dioceses

intentionally transferred molesters into the forum states. For

example, in John Does 1-9 v. CompCare, Inc., 52 Wash. App.

688, 697-98, 763 P. 2d 1237 (1988), a Washington court

found in personam jurisdiction over an out-of-state diocese

for moving a known pedophile priest into the State of

Washington. That court found personal jurisdiction based on

the facts that the out of state diocese ordered the priest to

leave the geographical area of the out-of-state diocese because

of molestations; the out-of-state diocese approved the

decision that the priest would reside in Washington; the out-

of-state diocese placed the priest in a Jesuit House where he

could be in an atmosphere that would either support him or

keep him from being involved with young people; and the

out-of-state diocese maintained the priest in Washington

because of his pedopiliac problem. The court held that the

out-of-state diocese purposefully availed itself of the privilege

of conducting activities within Washington. /d. at 698-99,

Similarly, in Doe /-22 v. Roman Catholic Bishop of

Fall River, 509 N.W. 2d 598, 600 (Minn. 1993), a Minnesota

court held that minimum contacts were present when an out-

of-state diocese authorized an intermediary to assign a priest

27

ee

to parish work in the forum state even though the out-of-state

diocese was aware of the priest’s pedophilia.

As seen by these cases, forum states have exercised

jurisdiction over out-of-state dioceses which send molesting

priests into the forum states.

The Milwaukee Archdiocese pointed to another sister

state case where that court refused to exercise jurisdiction

over an out of state diocese, the case of Doe v. Roman

Catholic Diocese of Boise, Inc., 121 N.M. 738 (Ct.App.New

Mexico 1996)). However, as stated by the California Court

of Appeal, the out of state diocese in that case “played no part

in the priest’s decision to settle in New Mexico, but only

granted the priest permission to leave Idaho.” As the Court of

Appeal noted,

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.

Milwaukee, 112 Cal. App. 4" at 440-41.

In conclusion, the Court of Appeal decision comports

with the laws of this Court and other states as well.

28

a

CONCLUSION

No reason exists why the Milwaukee Archdiocese’s

Petition for Writ of Certiorari should be granted. For these

reasons, the Petition for Writ of Certiorari should be denied.

Respectfully submitted this 19" day of May, 2004.

KATHERINE K. FREBERG

Counsel of Record

LAW OFFICES OF FREBERG &

ASSOCIATES

8001 Irvine Center Drive, Suite 1070

Irvine, CA 92618

(949) 453-1111

Counsel for Real Party-in-Interest,

Eric Nathan Paino

APPENDIX

INDEX

Page

Excerpts from page 8 of Verified

Petition for Writ of Mandate filed

by the Archdiocese of Milwaukee

Before the California Court of Appeal ....... A-1

Excerpts from pages 13 - 15 of Petitioner’s

Reply To Real Party-In-Interest’s

Opposition to Petition for Peremptory

Writ of Mandate filed by the Archdiocese

of Milwaukee Before the California

ree A-2 thru A-4

have such systematic and continuous contacts with California

such that it was subject to general jurisdiction in California

(PA 01082). Nonetheless, the respondent court denied the

Archdiocese of Milwaukee’s motion to quash. The

respondent court did not city any factual basis to support a

finding that the Archdiocese of Milwaukee had any contacts

with the State of California, much less sufficient contracts

relating to real party in interests’s claims, such that the

Archdiocese of Milwaukee was subject to the specific

jurisdiction of the court for this particuiar case. (PA 01083-

1095).

Basis for Writ Relief

10. ‘The singie issue presented in this petition is

whether Paino met his burden of proof of establishing

sufficient contacts between the Archdiocese of Milwaukee

and California relating to the real party in interest’s causes of

action such that the Archdiocese of Milwaukee was subject to

personal jurisdiction.

11. | With all due respect to the respondent court,

the Archdiocese of Milwaukee contends that this burden was

not met for the reasons previously described and for the

reasons more fully described below.

£.

A-1

Wisconsin and located in Milwaukee, Wisconsin.

(PA00003). It is a separate and distinct religious incorporated

entity from the Roman Catholic Bishop of Orange (“Diocese

of Orange’), which is a religious corporation organized under

the laws of California. The Archdiocese of Milwaukee is

presided over by a different bishop or archbishop than the

Roman Catholic bishop of Orange. The Archbishop of

Milwaukee exercises no control or influence over the

activities of the Diocese of Orange. (PA 00061-62 at {J 2-3).

In October of 1981, the Diocese of Orange informed

the Archdiocese of Milwaukee that Widera was seeking to be

incardinated into the Diocese of Orange. The Diocese of

Orange had approved this request. Under Canon Law, priests

cannot be incardinated in two dioceses at the same time.

Therefore, the proper canonical process was undertaken to

effect this transfer of incardination. Once a priest is

incardinated in = new diocese, all of his relationships,

obligations and connections with the former diocese cease.

Four years before the alleged abuse, Widera had severed all

canonical or other connections with the Archdiccese of

Milwaukee. The Archdiocese of Milwaukee had no control

ih

A-2

over or obligation concerning Widera in any respect. (PA

00063 at ¥ 9).

The relevant period during which the minimum

contact analysis must occur is when the cause of action arose

rather than when the complaint was filed or served. Boaz v.

Boyle & Co., 40 Cal. App. 4" 700, 717 (1995). Paino cannot

point to any contacts by the Archdiocese of Milwaukee in

1985, when the alleged abuse occurred - - in fact, Paino’s

opposition brief does not include a single contact at all by the

Archdiocese of Milwaukee with California for any time from

1982 to 1985, and virtually none before that. (See pg. 21,

infra).

Any revocation of Widera’s faculties to act as a priest

in California must come from the Diocese of Orange, not the

Archdiocese of Milwaukee (PA 00966). The Archdiocese of

Milwaukee did not have the ecclesiastical authority to control

Widera’s priestly activities in California. Further, Widera’s

temporal needs were provided by the Diocese of Orange. As

these temporal needs were met, the Archbishop from

Milwaukee had no further duties to Widera while he was in

-14-

A-3

California, even while he was incardinated? with the

Archdiocese of Milwaukee. (PA 00952-954 at 35:20-25, 36:1,

41:22-25, 42:1-4).

5. The Archdiocese of Milwaukee did not

Have Jurisdiction, Control and Authority

Over Widera While he was in California.

Paino’s record citations that the Archdiocese of

Milwaukee had “jurisdiction, control and authority” over

Widera while he was in California are misleading and lack

candor. Paino ignores the following record citations:

l. The Diocese of Orange admitted that the

authority of a spiritual leader of one diocese is

limited to its territorial boundaries. (PA 00930

at 39:22-25; 40:1-8).

-15-

2

Paino’s attempts to bind the Archdiocese of Milwaukee to Widera’s

contacts with California are inappropriate. It would require this Court to

review and interpret Canon Law for the religious effect of incardination

in the Roman Catholic Church. This Court is prohibited under the First

Amended from undertaking such an analysis. Serbian Orthodox Diocese

v. Milivojevich, 426 U.S. 696 (1976). This is no way prohibits the Court

from determining whether personal jurisdiction exists in this case. The

Court should review the Archdiocese of Milwaukee’s contacts with

California, not the religious significance of incardination. In any event,

Widera was excardinated many years before the alleged abuse at issue.

A-4

;

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