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Saturday
Mar302013

New Information in Motions to Oppose Dismissal of Lawsuit

The class action lawsuit against C.J. Mahaney, Sovereign Grace Ministries and others was initially filed on October 17, 2012.  It named eight Individual Defendants and one Institutional Defendant.  Over the next three months more allegations came forward and more evidence came to light.  An amended class action lawsuit was filed on January 11, 2013.  It named ten Individual Defendants and four Institutional Defendants.

In response, the Defendants’ lawyers filed motions for dismissal of the lawsuit with Judge Sharon Burrell on February 25 in the Circuit Court for Montgomery County, Maryland.  The Plaintiffs’ lawyers filed their opposing arguments for continuance with the Judge on Wednesday of this week.  

The three opposing arguments have the following titles.   

1. Plaintiffs’ Opposition to Defendants’ Motions Alleging Pleading Failure

2. Plaintiffs’ Opposition to Defendants’ Motions to Dismiss Based on the First Amendment

3. Plaintiffs’ Opposition to Defendants’ Motion to Dismiss Based on Lack of Jurisdiction 

Here are some highlights from each motion (in italic letters) with commentary. 

Plaintiffs’ Opposition to Defendants’ Motions Alleging Pleading Failure 

1. Conspiracy Caused the Sexual and Physical Abuse of Children 

Here’s the introductory paragraph to the first opposition.  It covers a lot of ground.  Notice the reference to “the many others victimized by Defendants’ conspiracy” who are not Plaintiffs at this time but are part of the class.  There is so much information yet to be revealed.  It is frightening. 

“Plaintiffs’ First Amended Complaint (hereinafter “FAC”) alleges Defendants conspired together to cause the sexual and physical abuse of children in their care by (1) failing to stop and instead facilitating known ongoing predation…(2) permitting known sexual predators to access young children in physical settings under Defendants’ control (e.g. churches, schools, home groups)…(3) obstructing justice by giving predators advance warning of arrest and investigation…and (4) conspiring together to hide past and current misconduct…. Plaintiffs discovered Defendants’ conspiratorial misconduct after individual victims broke the silence and began to blog about their individual experiences.  Plaintiffs brought this class action lawsuit to hold Defendants accountable for the harms perpetrated on themselves and the many others victimized by Defendants’ conspiracy.” (Pleading Failure, p. 1)

2. Approximately $50 Million Sought in Punitive Damages for Class

If the Plaintiffs are successful on all Counts, it may mean the end of Sovereign Grace Ministries, Covenant Life Church, Covenant Life School and Sovereign Grace Church of Fairfax and personal bankruptcy for all the Individual Defendants.  From what I understand, the liability coverage carried by the Institutional Defendants does not begin to cover damages of this size.  The Institutional Defendants should explain possible outcomes so contributors can be informed with regard to how their money could be used to pay out damages in the future.  Donors should also be told whether or not monies given to them are being used to pay the legal expenses for the Individual Defendants.  Contributors have a right to know if their donations are being used in keeping with the mission of the church or ministry. 

“Defendants quibble that the FAC does not identify the precise amount of damages sought, but Plaintiffs’ Hearing Statement made quite clear that expert witnesses are quantifying the compensatory damages.  The Statement also made clear that the punitive damages attributable to the class are approximately $50 million…. The Defendants are on notice of the sizeable damages being sought in the lawsuit.” (Pleading Failure, p. 4) 

3. New Plaintiff Alleges John Loftness Physically and Sexually Abused Her as a Child

The First Amended Complaint (FAC) is about to become the Second Amended Complaint.  It will add more parties and include this new allegation. 

“Plaintiffs are going to be amending the FAC to add more parties, one of whom [Jessica Roberts-Thomas] alleges Defendant John Loftness physically and sexually abused her as a child.” (Pleading Failure, p. 5) 

The Board of Directors purposely withheld this and other information when they announced John’s resignation as Chairman of the SGM Board on February 18, 2013.  I referenced these omissions several times on my blog as documented below. 

“John Loftness has resigned because ‘The time required in chairing the Sovereign Grace Board added to John’s already full schedule in both serving his church as well as caring for members of his extended family who are in poor health.’  In stepping down, he plans to ‘give himself anew to serving those in his extended family and in his church’ according to the announcement.  John is the foremost Defendant mentioned in the Class Action Lawsuit against Sovereign Grace Ministries.  The press release makes no mention of this as a reason for stepping down.” (“John Loftness Resigns as Chairman of the SGM Board,” February 18, 2013) 

“You [the SGM Board of Directors] know C.J. and John are in real trouble over the lawsuit.  On January 11, you told everyone you were ‘carefully reviewing each allegation…working diligently in an effort to learn the truth.’  You’ve done your investigation.  You realize both of them are culpable.  Just be honest.  Tell the pastors you are concerned for how they handled the victims and protected sexual predators.” (“SGM Board Covers Up Request for Resignation from C.J. Mahaney and John Loftness,” March 3, 2013) 

“The class action lawsuit continues to move forward.  In the coming weeks, I suspect new information of an incriminating nature will be forthcoming.  It will be injurious to C.J. and John.  The Board had to remove them now before that information becomes public.” (“C.J. Mahaney’s ‘Transition’ Out of Sovereign Grace Ministries,” March 15, 2013) 

John is necessarily under criminal investigation.  The alleged physical and sexual abuse of a child compels an investigation by law enforcement.  The ramifications are far reaching if John is found liable in a civil court and guilty in a criminal court.  As a Board Member and Chairman, no one has done more to enable and promote C.J.  John has repeatedly lied, deceived, and covered up for C.J. over the past 21 months. 

There are numerous investigations of a similar nature being conducted that are unrelated to John’s alleged crimes.  Arrests should follow and key leaders will be implicated in the cover up of criminal activity.  The arrest of Nate Morales on ten counts in December was the tip of the iceberg. 

4. A Second Amendment to the Lawsuit Will Add Further Victims 

More and more victims have come forth since the First Amended Complaint was filed on January 11.  I thank God for that development.  I’d encourage all the victims of physical and sexual abuse in Sovereign Grace churches to contact the Plaintiff’s lawyers and also bring your situation to the attention of law enforcement officials.  No one need be afraid to speak up at this point.  You are not alone.  You will be protected.  Sex abusers and predators must be exposed and brought to justice.  So too pastors who protect such criminals and thereby put children in harms’ way. 

“Plaintiffs labeled the conspiracy as a “conspiracy to obstruct justice.”  That label is too narrow, as Defendants conspired to inflict harm on children as well as to protect predators.  Plaintiffs are amending the complaint to add further victims, and will amend that count to read “civil conspiracy.”  The conspiracy acted together to commit all torts alleged in the FAC, not merely the tort of obstruction of justice, which is a form of the tort of misrepresentation.” (Pleading Failure, p. 8) 

A tort is “a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another.  Torts include all negligence cases as well as intentional wrongs which result in harm.  Therefore tort law is one of the major areas of law (along with contract, real property and criminal law) and results in more civil litigation than any other category.  Some intentional torts may also be crimes, such as assault, battery, wrongful death, fraud, conversion (a euphemism for theft) and trespass on property and form the basis for a lawsuit for damages by the injured party.” (Legal Dictionary) 

5. Defendants Falsely Argue the Conspiracy Was Formed to Engage in Only Lawful Conduct 

This is an absurd argument put forth by the Defendants’ lawyers.  

“Defendants seek to persuade the Court that the conspiracy was formed to engage in only lawful conduct, not tortious conduct [harmful conduct that subjects to liability].... This argument is again seeking dismissal based on Defendants characterization of the facts, not on the FAC allegations of the facts.  Defendants can argue to the jury that beating and sexually abusing children, lying to law enforcement, and giving known sexual predators unfettered access to children in multiple settings, and other misconduct alleged in the FAC did not cause damage and need not be punished… But the FAC properly alleges tortious activity, and thus the conspiracy to commit such tortious activity is itself a separate tort under Maryland law.” (Pleadig Failure, p. 8) 

6. Pastor/Teacher and Church Employee Still Not Named 

These two individuals have not yet been named in public.  They are under criminal investigation. 

“Defendants claim that the cause of action must be dismissed because Plaintiffs fail to allege an employment relationship.  This is false.  The FAC alleges repeatedly that the individual defendants were all employees of one or more of the corporate entities…. The FAC alleges Plaintiff Poe [Heather Thompson-Bryant] was sexually and physically abused by a Pastor and teacher employed by the Church…and Plaintiff Coe was sexually and physically abused by a Church employee [Larry Tomczak]…. Indeed, the FAC alleges all the Plaintiffs were harmed by misconduct of employees.” (Pleading Failure, p. 9) 

We also know from the FAC that other individuals are under investigation including a “children’s ministry worker” and “the male son of a Church pastor.”  Their names have not been made public either.

“Paula Poe attended the School and services at CLC beginning in kindergarten until her family moved away from Gaithersburg, Maryland.  Paul Poe was repeatedly sexually assaulted by two men.  The primary perpetrator was a pastor and teacher.  The secondary perpetrator was a children’s ministry worker.” (FAC - C37)

“Karl Koe was seven years old when he was repeatedly sexually molested (approximately ten times) by the male son of a Church pastor…. Defendants, including the pastor father of the predator, failed to take any steps whatsoever to prevent the juvenile sexual predator from preying upon other children.  Defendants continued to permit the juvenile sexual predator to have unfettered access to child on Church premises and during Church activities, such as Home Group and Celebration.” (FAC - C53, 56)

These paragraphs reference four individuals under investigation.  (1) “a Pastor and teacher,” [Steve Griney] (2) “a Church employee,” [Larry Tomczak] (3) “a children’s ministry worker” [Mark Hoffman] and (4) “the male son of a Church pastor” [in the Fairfax, VA church].  The list is not exhaustive.

C.J. worked with “the juvenile sexual predator” and “the father of the predator” but took no action to “prevent…preying upon other children.”  He shares responsibility for the molestation of children.  The SGM Board of Directors knows this but did not include it in their explanation for C.J.’s “transition from his role as President on April 12.”  The deception is sickening.  

All of the above and more will come out in God’s timing.  What C.J., John Loftness and others have sought to conceal will be revealed.  “Though the mills of God grind slowly, yet they grind exceeding small; though with patience stands He waiting, with exactness grinds He all.” 

7. Defendants Continue to Conspire to Prevent Secular Authorities from Detecting and Incarcerating Predators 

Individuals are under investigation including those connected to the alleged “pedophilic ring” operating at Covenant Life Church and School while C.J. was the senior pastor.  Law enforcement officials are trying to detect all predators and put them in jail.  It is only a matter of time before individuals are arrested.  The news will be shocking.  It is no wonder the Plaintiffs’ lawyers say these efforts are being blocked by “all” the Defendants working in concert with one another.  If true, evidence of “ongoing conspiratorial misconduct” will prove damming when presented to a jury.    

“What all of the Defendants fail to address, however, is that the FAC alleges ongoing conspiratorial misconduct by all the Defendants, and alleges such misconduct is harming Plaintiffs…. To date, Defendants have not ended their conspiracy [footnote: One or more Defendants may be able to assert withdrawal from the conspiracy, but such a fact-based defense has not been made, and in any event is premature until discovery closes.]…. Defendants continue to conspire to prevent secular authorities from detecting and incarcerating predators.” (Pleading Failure, p. 11) 

8. Putting Children in Harms’ Way, Not Warning Parents, and Hiding Facts from Law Enforcement. 

There have been so many victims of sexual abuse because predators were not exposed, parents were not informed, and law enforcement was not involved.  Lives and families have been devastated as a result.  This must change in every Sovereign Grace church.  The Defendants could find themselves in criminal court for obstruction of justice. 

“Defendants simply have not stopped their conspiratorial efforts to encourage and facilitate the sexual and physical abuse of children, and to prevent past sexual and physical abuse of children from being detected by law enforcement.  As alleged in the FAC, Defendants continue to permit known predators to have direct and continuous access to children without providing any warnings to parents…. Defendants continue to hide facts about Plaintiffs’ predators from law enforcement…. Such ongoing conduct harms Plaintiffs and the class…. In short, the conspiracy continues to exist, and continues to engage in tortious conduct that is designed to and does harm Plaintiffs and the class.” (Pleading Failure, p. 12) 

Plaintiffs’ Opposition to Defendants’ Motions to Dismiss Based on the First Amendment 

1. Defendants’ Acts and Omissions Have Ruined So Many Lives; They Must Be Stopped 

This is the introductory paragraph to the second opposition.  The number of victims that have come forward in addition to the eight Plaintiffs is described as “the many others who were similarly victimized.”  The evidence grows every week.  I believe the Plaintiffs and their lawyers when they say this lawsuit is about stopping the abuse of children in Sovereign Grace Ministries and beyond. 

“With one exception, Plaintiffs were physically and sexually abused when they were children.  They brought a lawsuit on behalf of themselves and the many others who were similarly victimized in order to stop Defendants from continuing their active and ongoing support for sexual and physical abuse of children.  Defendants created, fostered and maintained an environment that encouraged predation of children by their employees and members.  They allowed and allow pedophilia and physical beatings to flourish at the church school, in church bathrooms and home groups.  They protected predators from accountability, and forced innocent children to remain in place, subject to ongoing sexual and physical abuse.  Defendants’ acts and omissions have ruined so many lives; they must be stopped.” (First Amendment, p. 1) 

2. The Plaintiffs Do Not Seek Redress for Clergy Malpractice (i.e., Poor Spiritual Counseling) 

Clergy malpractice is protected by the First Amendment.  I have in mind bad doctrine, practice, and counsel that does not facilitate crimes.  This lawsuit is primarily about the sexual abuse of children by predators that should have been stopped.  Instead, criminals were protected and their crimes were not prosecuted.  This enabled ongoing criminal activity which resulted in the further abuse, assault and molestation of children.  The devastation of many lives was avoidable.  Such a “right” is not protected by the First Amendment.  

“Yet now, Defendants continue as they have in the past, trying to evade accountability and hide the truth.  They seek to hide behind the First Amendment, arguing that letting a jury hear about their misconduct would violated the First Amendment.  Defendants try to shoehorn Plaintiffs’ claims into a box labeled “clergy malpractice.”  But Plaintiffs do not seek redress for poor spiritual counseling or the like.” (First Amendment, pp. 1-2) 

3. No Religious Belief Claimed that Gives Freedom to Sexually or Physically Abuse Children  

  • I agree but with a caution.  Religious belief can be claimed that protects one’s freedom to use corporal punishment in the discipline of children because it is a clearly elucidated doctrine found in Scripture.  Therefore, it is protected under the First Amendment.  It should not be infringed upon.  Spanking one’s child as taught in the Bible is not a form of violence or physical abuse.  It is a form of training and discipline.  The Plaintiffs’ lawyers will have to show that the physical abuse of children included vicious “beatings” designed to inflict injury or bodily harm.  That is not protected by the First Amendment.  Nor is spousal abuse.  
  • “Thus, Defendants’ various arguments about protection for religion and clergy lack any merit whatsoever for one very fundamental reason: Defendants have not—and cannot—cite to or rely upon any religious beliefs that they claim gives them the freedom to sexually and physically abuse children.  That misconduct is what is an issue here; that misconduct is not protected by any religious tenet identified by Defendants in their moving papers [i.e. motions to dismiss].” (First Amendment, p. 2)  

4. Most Courts Have Rejected the First Amendment Argument 

This is not news for anyone who follows the news.  For example, the Roman Catholic Church has repeatedly sought to cover up child molestation citing the First Amendment.  Their legal arguments have been largely unsuccessful.  They have been found liable and paid out billions in damages. 

“The First Amendment prevents the courts from becoming entangled in religious doctrine; it does not bestow a “get of jail free” card on wrongdoers who happen to be cloaked in religious garb or who claim to operate with religious authority.  Indeed, although not cited by Defendants, courts across the nation have rejected efforts comparable to Defendants to use the First Amendment to prevent adjudication of abuse claims.  Most have found that the tort lawsuits may be adjudicated in a straightforward manner, using the same general standards of care commonly applied in tort lawsuits.” (First Amendment, pp. 5-6) 

5. No Religious Doctrine or Practice Will Be Burdened 

While citing the First Amendment as grounds for dismissal, the Defendants’ lawyers failed to show which doctrines or practices peculiar to Sovereign Grace Ministries or its churches would be violated if the lawsuit proceeds.    

“Defendants failed to identify a specific religious doctrine or practice that will be burdened if Plaintiffs’ lawsuit goes forward.  To the contrary, Defendants have made public statements to opposite effect, claiming their religious beliefs are inconsistent with abuse of children…. Yet as matter of black-letter law, to be protected under the Free Exercise Clause, the conduct that the state seeks to regulate must be ‘rooted in religious belief.’” (First Amendment, p. 7) 

“The term black letter law is used to refer to the technical legal rules to be applied in a particular area, which are most often largely well-established and no longer subject to reasonable dispute.” (Wikipedia) 

6. The Scope of the Defendants’ Duties 

Let me illustrate.  I cannot allow sex abusers to operate in my place of employment and then cover up their crimes and not notify law enforcement.  It doesn’t matter if I work at a Lowes Home Improvement store or at Sovereign Grace Ministries.  I have the same duties in both places that cannot be breached.  The First Amendment does not absolve me of these common law duties and legal responsibilities.  If I knowingly put people in harm’s way, I am culpable in a criminal court and liable in a civil court.  This is not rocket science. 

“The content of the religious doctrines have absolutely no bearing on this lawsuit because common law, not ecclesiastical principles or law, establishes the scope of the Defendants’ duties.  Plaintiffs’ claims do not involve in any way the internal, ecclesiastical matters of religious institutions.” (First Amendment, p. 9) 

Plaintiffs’ Opposition to Defendants’ Motion to Dismiss Based on Lack of Jurisdiction 

1. He Who Does Not Punish Evil Commands It Be Done 

Read the following statement carefully.  

“This lawsuit is about a church network [Sovereign Grace Ministries] systematically protecting predators from accountability and instead conspiring to hide ongoing sexual and physical abuse of children by their employees and members.  As Leonardo Da Vinci so aptly noted many years ago, ‘He who does not punish evil commands it be done.’” (Jurisdiction, p. 1) 

What Sovereign Grace Ministries has done for sexual predators they have done for C.J., Dave Harvey, John Loftness, Mickey Connolly, Gene Emerson, et al.  They have systematically protected these leaders from accountability and conspired to hide their spiritual abuse.  They have commanded evil be done.  SGM is corrupt.  

2. The Virginia Defendants Were in Regular Contact with SGM Headquarters and SGM Agents Regarding the Physical and Sexual Abuse of Children 

The Defendants in Virginia are asking the Judge to dismiss all Complaints against them because the class action was filed in Maryland.  This third opposition establishes the link between Maryland and Virginia. 

“This Court should deny the Virginia Defendants’ motion to dismiss because it lacks any merit.  First, this [Maryland] Court clearly has jurisdiction over the Virginia Defendants, who voluntarily joined a Maryland-based church network, and thereafter engaged in routine and repeated contacts with the church headquarters located in Maryland.  Indeed, the FAC alleges, and the appended Affidavit from Brent Detwiler (hereinafter “Detwiler Affidavit”) establishes, that the Virginia Defendants met in person with, called and emailed Church management in Maryland about the physical and sexual abuse of children.” (Jurisdiction, pp. 1-2) 

C.J. and his agents were vitally involved in providing counsel and direction to Mark Mullery and his agents.  The Virginia Defendants did not act on their own in their handling of the Plaintiffs’ referenced in the lawsuit.  

“As Virginia Defendants well know, they all had extensive and routine contacts with Maryland, both general and specific to the allegations of this case…. Defendants cannot deny such extensive contacts with Maryland specific to the subject matter of this lawsuit.” (Jurisdiction, p. 5) 

Other Defendants will named in the Second Amended Complaint yet to be filed.  I don’t think these additional Defendants will be confined to Covenant Life Church or Sovereign Grace Church of Fairfax.  The network of churches will likely expand since more and more victims have come forward. 

“The Virginia Defendants had repeated contacts with Maryland about the sexual molestation of the Coe and Doe Plaintiffs, as well as the molestation and abuse of other children under their care.  The Virginia Defendants called and emailed SGM Executive Management, and traveled to Maryland for an in-person meeting.” (Jurisdiction, p. 7) 

The “in-person meeting” was with C.J.  

3. More Plaintiffs and More Detail in Second Amended Complaint 

If Judge Sharon Burrell feels more details need to be added to the First Amended Complaint, the Plaintiffs lawyers are happy to comply.  They will also add new Plaintiffs that have been harmed to the Second Amended Complaint.  Is there no end?     

“Plaintiffs are preparing an amended compliant to join the additional persons who have been harmed.  If the Court believes plaintiffs need to plead additional fact, plaintiffs will add further detail in the Second Amended Complaint.” (Jurisdiction, p. 10) 

Five months ago SGM put out this statement.  “Upon initial review it appears the complaint contains a number of untrue or misleading allegations, as well as considerable mischaracterizations of intent” (Oct 26, 2012).  You don’t hear SGM saying the Plaintiffs are liars any longer.  

“Here the Plaintiffs have alleged an agreement or understanding among the defendants to breach their duty to report child abuse and neglect, overt acts in furtherance of that agreement or understanding, such as interference with prosecutions, warnings to accused abusers, lying to victims about court proceedings, coercion and attempted coercion of victims to drop charges and many other acts detailed in the amended complaint.” (Jurisdiction, p. 10)

It angers me when noted Reformed blogger, Tim Challies, recently characterized the lawsuit as follows. 

“A lawsuit that will soon go before the courts alleges that [SGM leaders] responded unwisely when [significant sexual abuse] was reported to them and that they failed to take sufficient action on behalf of victims.” (Feb 28, 2013)

Tim is obviously regurgitating the talking points provided him by friends of C.J.  His characterization of the lawsuit has no resemblance to the lawsuit.   

It further angers me (and it should anger you) when C.J. offered this measly acknowledgement in response to the  April 2012 report published by Ambassadors of Reconciliation (AoR) that included a section on “Cases Involving Sexual Misconduct.” 

“AoR identified the following areas of pastoral practice that reflect deficiencies in practice and, in some instances, sin against a brother or sister.  Those areas [included]….inconsistent and/or insensitive handling of sexual misconduct cases.” (Response to AoR Group Reconciliation Report from C.J. Mahaney and the SGM Board of Directors, April 10, 2012) 

If you believe Tim Challies and C.J. Mahaney, the ten Individual Defendants named in the lawsuit, including C.J., were simply unwise, took insufficient action, and were inconsistent and insensitive.   These lies have been propagated among leaders throughout the nation.  Many of them have been foolish enough to believe them and are even willing to give C.J. and SGM an unqualified endorsement as recently done by John Piper.  Furthermore, I cannot understand how Don Carson and Tim Keller can allow C.J. to speak at the Gospel Coalition Conference on April 8-10 in Orlando.  In so doing, they show no discernment or prudence.  In my opinion, this is pure favoritism.  I will be contacting the 77 National Leaders again next week.  Their public silence regarding C.J./SGM is unacceptable.  Their public support of C.J./SGM is outrageous. 

4. It Is Premature for the Judge to Rule on Class Certification 

Judge Sharon Burrell has yet to rule on whether or not to accept the lawsuit as a class action.  The Plaintiff’s lawyers have yet to file a formal motion in that regard.  They are asking the Judge to wait on making a ruling as they continue to gather evidence favorable to a class certification.  The more victims, the more likely the Judge will certify as a class.  Notice, “a substantial number of victims” and “a substantial number of witnesses” have come forward since the FAC was filed on January 11, 2013.  The witnesses have information about additional victims.  Remember, there were only three victims when the original Complaint was filed  on October 17, 2012.  The number has greatly increased.  

“Undersigned counsel [Susan L. Burke and William T. O’Neil] have been contacted by a substantial number of victims similarly-situated to Plaintiffs, as well as a substantial number of witnesses who are knowledgeable about other victims who have not come forward.  Plaintiffs’ counsel will be filing a motion to certify the class and name certain Plaintiffs as class representatives.  Until the Plaintiffs’ motion has been filed, it is premature for the Court to hear arguments on class certification.” (Jurisdiction, p. 12)

Conclusion

I plan to add additional comments but don’t have the time right now.  

The three motions to dismiss can be read in entirety on my website at http://abrentdetwiler.squarespace.com/.

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