|" Why Didn't You Tell Me?"
Appeals Court, Citing Deposition by Cardinal Roger Mahony, Reinstates Sexual Abuse Lawsuit against Diocese of Fresno
California Catholic Daily
May 27, 2008
A state appeals court has ruled that a lawsuit alleging decades-old abuse by a Central California priest may go forward based on a review of deposition testimony by Cardinal Roger Mahony. A trial court had earlier dismissed the case.
Two brothers, George and Howard Santillan, claim they were molested by Msgr. Anthony Herdegen from 1959-1973 at a parish in Wasco. In 2003, the brothers sued the Fresno diocese under an act of the California legislature permitting the filing of abuse claims otherwise void under the statute of limitations. The brothers claimed the diocese had failed to protect them from abuse. The trial court, however, agreed with the diocese that there was no evidence that the diocese had any knowledge of abuse by Herdegen.
The trial court had heard testimony that Herdegen's elderly housekeeper knew or should have known of the abuse. The woman, Barbara Zielman (also spelled Zeilman by the appeals court), sometimes let the brothers into Herdegen's bedroom. Zielman knew the brothers "were often alone with Herdegen behind his closed bedroom door," said the appeals court decision. The housekeeper "was hired by Herdegen and paid with parish funds, but those funds ultimately belonged to the Diocese," said the 2-1 decision issued last week by the 2nd District Court of Appeal in Los Angeles.
The plaintiffs' mother said that, when she first learned of the abuse in 1987, she confronted Zielman, saying, "Why didn't you tell me? Because I know you knew." Zielman, however, wept but did not respond. The mother, who operated a beauty shop and afterwards continued to do Zielman's hair, testified that "she and Zielman conversed during those sessions, and even though Zielman never said that she recalled what had happened, she did say 'I'm sorry, I'm sorry, I'm sorry.'"
In his deposition, Cardinal Mahony (who had served as a high-level administrator in the Fresno diocese from 1962-1980) testified that before 1985 a priest taking a minor to his bedroom and closing the door "could be grounds for suspicion of sexual abuse." Asked if Zielman had known of the abuse, whether he would have expected her "to have made some effort to report to a higher level official?" Mahony replied, "Well, if there was [a] well-founded suspicion of some problem, I would expect she would have told somebody."
Though agreeing that Mahony's testimony was ambiguous, the appellate court ruled that the trial court erred in dismissing the case. One could infer, said the appeals court, that Mahony's expectation that Zielman would report the abuse was based "on his knowledge of the duties of parish employees such as Zielman." One might infer too, said the decision, that the "somebody" to whom she would report would be a "higher level official."
The appeals court said that if Zielman, as an "agent" of the diocese, was obliged to report abuse, then the diocese would be bound "by the agent's knowledge of that information whether or not the agent communicated it to the principal."
In a dissenting opinion, Presiding Justice Candace Cooper wrote, "Mahony's testimony is neither sufficient to support" the inference that Zielman had a duty to report abuse, "nor is it ambiguous enough to create a triable issue of fact."
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