The Danger of Settlements
There are two types of appeals courts. First ones that doesn't have a choice on the cases that they hear, which is what the first appeals court is. Currently, the Padron case is being heard by the California 4th Circuit Court of Appeals 1st District. The second type of Appeals court is the type that is allowed to choose what cases they will hear, which is the Calfornia State Supreme Court. When an Appeals court hears a case and makes a ruling that becomes a precedent for lower courts that they have jurisdiction over, such as for the 4th Circuit in California would include most of San Diego County, but those precedents are not mandatory for courts outside of their jurisdiction. A lawyer can still bring up that precedent even though they are not in the Appeals Court Jurisdiction but it wouldn't be a mandatory precedent but it would be a persuasive precedent. A lawyer would be able to show that another court ruled a certain way, the court that the lawyer is currently before can choose to go along with the precedent or ignore it completely. The only way that Watchtower could get all State courts in California to consider them as clergy when it comes to clergy-penitent privilege would be if the State Supreme Court took the case. And the only way for the US Supreme Court to rule on a case would be if (1) there is a federal constitutional question (2) the State Supreme Court has already ruled on the case. The other way for Watchtower to get the US Supreme Court to rule on it is, for a federal trial court to hear the case, it is appealed to a Federal Appeals Court and then the US Supreme Court can choose to hear the case or not.
How can California dictate to the church how they should practice cp. Shouldnt all religions be recognized equally under cp in every state as defined by Burgers decision? Since cp is the subject matter of a Federal Court as it relates to the 1st Amendment, why hasnt wt taken the case to federal court?
Maybe because they know they'll lose?
States can legislate laws that govern child abuse reporting and States can also legislate laws that that qualify cp privilige; cp privilege is a Priviledge and not a Right, Rights are guaranteed, they cannot be revoked, Privlidges can be revoked.Priviliges can be subject to qualification and may be licensed such as the privilege to operare a motor vehicle. Bergers decision states that cp is based on the 1st Amendment, he did not say that cp is guaranteed under the 1st Amendment. Berger also did not determine that all cp circumstances qualify; they are subject to the purpose of the communication and the role the minister is taking at any instance. Therefore, there is legal grounds to challege cp privilege.
Richard Oliver pointed out that Watchtower cp privilege has not been decided by California Supreme Court, such decision legally establishing a legal precedent in all jurisdictions in the State of California. Lacking such decision, any other California state court decision can only be used as case law in the jurisdiction where the decision was made and subject to acceptance in other jurisdictions. Therefore, the only Precedent that can legally matter statewide affecting wt cp is one from SCOC.
But even if California was to recognize WT cp privilidge, California can still pass laws mandating clergy to report child abuse. And that applies to other states also such as in the Fessler case where wt argues that wt does not have a paid clergy while clergy is being mandated to report child abuse under the related state statute; and whether or not doing so violates Berger's decision, has not been decided by the Courts.
What is interesting is that wt is believed to have subpoenable information, confidential or not, about child abusers, which, has or has not, is or is not, will or will not, affected, affecting or will affect the safety of children.
I re-read your original post. You did bring up some interesting points, and you used yourself as an example. I am not sure if you do own your own business or if it was a hypothetical of a hypothetical.
It is certainly true that settlements can make plaintiff's more embolden to start legal proceedings more often if an organization has a history of just settling cases. A not so hypothetical situation happened with criminal cases in California, due to a Federal Courts decision that California had to reduce overcrowding in jails, more criminals were released early, this caused more and more defendants from not accepting plea deals. Many plea deals that were being offered at that time included supervised release, but the defendants knew that they weren't going to serve anywhere near their full sentence even without a plea deal, and when released they wouldn't have any supervised release. This made prosecutor's jobs much harder because they had to take more cases to court and work on making sure that defendants were found guilty in order to get them to serve any kind of jail time.
But you also have to remember that Watchtower has won a number of these cases as well. They just don't get reported on, these forums and sites as much as the settlement cases are reported on. A number of cases have been won by Watchtower showing that they have no fiduciary responsibility, nor do they have a duty to warn or protect. Those are precedents that actually matter in court cases in the future. With nondisclosure settlements or settlements that Watchtower does not admit fault cannot be brought up in future court cases.
I agree one of the reasons why Watchtower may not want to bring a case like that because they don't know how the case would turn out. For the longest time supporters and detractors of limiting some gun rights have had this same thought. The Supreme Court doesn't have a long history deciding those cases, so neither side felt very comfortable wanting to take the case to that level. They knew that once the Supreme Court rules that is about it, that is then case law for a long time, of course there are exceptions. So it could be that neither side really wants to test the waters at that level in case their side loses.
Tech, businesses and large entities do not get to decide whether or not to setlle case except those that are self insured. They have delegated that decision to the insurance company that covers them from commercial general liability. For insurance companies, they don't look at whether or not Plaintiffs have a case. It is cheaper to settle and usually isurance companies offer some money with a stipulation agreement stating no admission of liability in essence saying here go away. Settlements establish no precedent except that an entity can be sued. And large companies with deep pockects are the entities that lawyers find are worth suing. As RO stated wt has a very large legal team and a law firm suing wt may have to tie up its entire office doing so, having to devote all time and resources to one case. Also to consider is that challenging someone legally may wind up costing you money or something else as you never know how thi ngs will turn out legally.
Richard Oliver, in Califorina, penitent confessions of Catholic child abusers are protected from disclosure under California State law. But JW child abuser communications to elders in a jc setting are not protected in California. Is that right?
Fisherman that is correct. Catholic confessions are protected. The argument is two fold. First the fact that elders transmit information the branch. Second that there are times that elders initiate the hearing. As described previously, there is case law to indicate in other states that transmitting information does not negate the privilege and other case law shows that even if the clergy initiate the hearing it is still privilege. Though in Louisiana the state supreme court ruled that even if the clergy wants to keep a matter confidential if the communicant wants to release the privilege, the clergy member can no longer argue the privilege.