After having the opportunity on a long train ride today to read the entire Watchtower appeal brief from the Conti case, I decided to put up a summary for those who are interested. My apologies for the length, but the brief is 77 pages! Many thanks to everyone at the newly announced AAWA for making this available!
As a matter of background, I’m a law student from the U.S. who will be sitting for the bar this summer. I spent a few months working for an appeals court judge (not in California), which sometimes involved reading briefs like this one, or portions of a brief, and writing a summary memo for the judge about the key issues and a recommendation on how the case should turn out. Even though I didn't know any of the judges and clerks to read the briefs until the briefing was complete, as a spectator in this case, I was too curious to wait.
There are essentially six grounds on which the WT is appealing the trial court’s decision. They are technically appealing only what the judge did, not the jury. Although parts of the appeal may seem like an appeal of what the jury did, in reality it is an appeal of the judge letting such decision be placed in the jury's hands, or the judge's instructions to the jury, or the judge not modifying portions of the jury's verdict the way they would have liked. I have included a summary of each of the points below.
A) The Duty Applied to the Watchtower - The WT is appealing the finding by the trial judge that the WT had a duty to protect Candace or to warn her parents. “Duty” is an element of every tort case, and if one doesn’t exist there can be no recovery to the plaintiff. Whether a duty exists is decided by the trial judge, and not the jury. The judge told the jury what legal duties apply when he gave jury instructions, which the WT objected to at the time.
So, the basis of the WT’s argument is that normally, people don’t have any responsibility to warn other people of danger, if they did not directly create the danger and the danger is at the hands of someone else. Of course, warning someone is the nice thing to do and people might feel better about themselves, but there is no legal liability for not warning. For example, if you have a relative who has been convicted for child abuse and the relative is dating a woman with small children, you would have no legal duty to warn her about your relative, even if you had the opportunity to do so, and even though most self-respecting people would probably warn her (this example is my editorial, not part of the brief). Some of you may also remember the David Cash case, (the famous "bad samaritan") for a sad reminder about how legally you don’t usually have to help anyone.
An exception to the usual rule that there is no duty to prevent others from causing harm is when something called a “special relationship” exists. Rick Simons argued, and the trial judge agreed, that a special relationship did exist between both the congregation and the WT Society and Candace Conti. It is very important that the appeals court agree as well that a special relationship existed in order for Candace to win this appeal. There are a lot of cases in the brief cited about when special relationships do and do not exist. The WT cites some cases to the effect that the Catholic Church does not have a special relationship with its parishioners. This will probably be the most important parts of the entire appeal for Candace's legal team to reply to. I am looking forward to seeing their arguments. I imagine that one argument could be that the WT organziation is different from the Catholic Church, and another might be that maybe it is time to recognize such a special relationship since times have changed since those last cases were decided involving the Catholic Church (10-15 years ago)
Perhaps one positive is that California has often been a liberal state in defining what creates a duty. One of the most famous cases is Tarasoff v. Regents of the University of California. That was a case from the 1970’s where the CA Supreme Court caused CA to be the first state to recognize a special relationship, and therefore a duty, on psychologists to warn if one of their patients is going to harm someone. That case imposed liability on a psychologist whose patient killed someone. It was controversial at the time and unpopular in the psychiatric community, but eventually some other states followed suit.
I think that this will be the most important of all the grounds for appeal. It took up the most space in the brief, and understandably so. It’s probably the WT’s strongest argument out of the six, and it’s also the one that they would prefer to win on. If they were able to win on this ground, the court probably would not even decide any of the other issues. Also, it is the only ground where they could completely end the case. If they win on any of the other grounds for appeal, the remedy would most likely be either a new trial or reduction in damages. If they were able to win on this ground, they could get out completely (although it could still be appealed to the CA Supreme Court).
B) Exclusion of Parties from Jury Verdict Form – The jury was only given the option to allocate responsibility among Kendrick, the Freemont Congregation, and the WT Society. The ultimate finding was 60% against Kendrick, 27% against the WT, and 13% against the congregation. The WT is arguing that other parties (the parents and various law enforcement/government parties) should have been included—not that a percentage had to be assigned to them, but allowing the jury the option. I am not going to discuss this in detail since I think it is a long shot for success. There is a fairly well-established history of law enforcement not being liable to the general public for not warning them or not arresting or convicting somebody they should have. The case they cite is a completely different set of circumstances. And I will just say that I don’t think the court wants to set a precedent for assigning blame to unsuspecting parents when their children are molested. The WT did use this section to sneak in a reference to Kathleen Conti being a drug and alcohol abuser.
C) Government Entanglement With Religion - This part claims that the lower court violated WT’s First Amendment rights by not allowing their biblical understanding of confidentiality to be a justification for keeping Kendrick’s abuse secret. They claim that confidentiality is a religious belief that they feel is based on scripture. Another weak argument, in my view. This could potentially allow for an appeal to the U.S. Supreme Court, but I doubt it will be seriously considered. If this were true, the clergy reporting requirement that is now in effect in CA, that they admit they are now subject to, would be unconstitutional since it would violate their "biblical" view on confidentiality.
D) Required Sex Offender Label – They argue that by warning, they would have violated Kendrick’s rights by labeling him as a sex offender even though he had not yet been convicted. The argument is that even law enforcement can’t put someone on a sex offender registry until they are actually convicted. I don’t think this requires a lot of discussion either. Dangerousness is not usually measured by convictions – for example, the Tarasoff psychiatrist had a duty to warn, and his patient had not been convicted of anything at that point. Also, they did not have to label him as a “sex offender.” Kendrick had confessed what he did, so if there was a duty to warn, they could have done it without falsely stating that he had been convicted in a court of law.
E) Punitive Damages not Supported - The last two grounds for appeal relate to punitive damages. If the WT’s appeal were to be successful on one of these grounds, they would still owe their 27% of the general damages of $7,000,000, which would reduce their liability to about $1.9 million. Just to give a brief background on punitive damages, this type of award goes above and beyond what the jury believes would be enough to compensate a victim for what happened to the victim. The punitive damages are intended, as the name indicates, to punish the offender. So for example, if everyone agreed that a broken leg was worth $100,000 in compensation, if someone broke your leg by running a red light in a car accident, you would be entitled to the $100,000. However if you suffered the same exact broken leg as a result of someone smashing it with a metal pipe for no reason, you would arguably be entitled to the $100,000, plus punitive damages, from the attacker. There has to be something called “malice” for punitive damages to be awarded. The jury did find malice, and the WT is arguing that there was not enough evidence that there was in fact malice. This is a little more subjective, and I suspect that there will is a lot of variation among judges as to what they think is evidence of malice. However, unlike all of the above grounds for appeal, when it comes to punitive damages, the appeals court has to give the jury a lot of deference. So even if they don’t think there was a lot of evidence of malice and the judges themselves would not have awarded punitive damages, they have to allow the punitive award to stand unless there is almost zero evidence of malice. The rule is kind of that to eliminate the punitive damages, the jury had to make a "big mistake," not just any mistake. The punitive damages award in this case was based primarily on the 1989 BOE letter and WT headquarters policy/directives. That is why the congregation was not hit with a punitive damages award – only the WT.
F) Excessive Punitive Damages - This last argument is that even if the punitive award should have been permitted, it is excessive. As those who have been following the case know, the original punitive award was already reduced by the trial judge, and Candace Conti accepted the reduced award as an alternative to a new trial, so they are talking about the modified $8.6 million punitive award. This argument has a federal constitutional element as well, and could in theory be appealed all the way to the U.S. Supreme Court.
One quote that I found interesting in this section is that “Watchtower asserts that the compensatory award, comprised mainly of general damages, itself is so astronomically high that it likely already contained a punitive element.”
I would translate this to be saying something like “$7 million in compensatory damages is just so much more than Candace Conti deserves for what she went through that the only reason the jury gave her such a high award is because of dislike for the defendant.” My own take – while $7 million is higher than average for sexual abuse cases, it takes a lot of guts to use the “astronomical” language in a child molestation case. It's not like we're talking about $7 million for a slip n' fall in the 7-11.
Aside from the six primary arguments, the factual statements of Watchtower policy seem fairly accurate (although perhaps not balanced, but that is to be expected) for the most part. One potential inaccuracy I noticed was that the brief stated that “[ t]hat letter [a 1997 letter to BOE] also confirmed Watchtower's long-standing policy that a known child molester does not qualify to be appointed to a position of responsibility in any congregation.”
I believe there have been letters to the contrary, e.g. that molesters could potentially qualify again. Maybe someone can provide a reference.