Opinion
C.A. No. 04C-01-069 CLS.
Submitted: December 10, 2007.
Decided: December 14, 2007.
Thomas S. Neuberger and Stephen J. Neuberger, Esquires, of The Neuberger Firm, P.A., Wilmington, Delaware; Robert Jacobs and Thomas C. Crumplar, Esquires, of Jacobs Crumplar, Wilmington, Delaware, Attorneys for Plaintiff.
Mark L. Reardon, Esquire, of Elzufon, Austin, Reardon, Tarlov Mondell, P.A., Wilmington, Delaware, on behalf of Defendants the Oblates of St. Francis de Sales, Salesianum School, Rev. Robert D. Kenney, Rev. Joseph G. Morrissey, and Rev. Louis S. Fiorelli
Anthony G. Flynn, Neilli Mullen Walsh and Jennifer M. Kinkus, Esquires of Young, Conaway, Stargatt Taylor, LLP, Wilmington, Delaware, on behalf of Defendant the Catholic Diocese of Wilmington
John P. Deckers, Esquire, of Wilmington, Delaware; Thomas P. Bernier, Esquire, of Segal McCambridge Singer Mahoney, Baltimore, Maryland, on behalf of Defendant Rev. James W. O'Neill
MEMORANDUM OPINION
Introduction
In this civil action claiming damages for breach of contract, intentional misrepresentation, conspiracy, assault, battery, and negligence, a defendant has sought to invoke the privilege against self-incrimination found in both the Fifth Amendment of the United States Constitution and Article 1, § 7 of the Delaware Constitution. The Court finds that, where there is no reasonable fear of prosecution because the statute of limitations for criminal prosecution has run, the defendant cannot invoke the privilege against self-incrimination. Additionally, the Court finds that the privilege against self-incrimination does not extend to evidence that may be used in a future trial under Federal Rule of Evidence, 404(b). Accordingly, the defendant may only invoke the privilege against self-incrimination in jurisdictions where he has a reasonable fear of prosecution.
Delaware has adopted this rule, as have a number of other jurisdictions at issue in this case; however, in terms of applying the right against self-incrimination to the rule, the analysis is the same.
Background
In this case, defendant Father O'Neill has been deposed twice. The first time, on September 21, 2004, the scope of the deposition was limited to O'Neill's contact with plaintiff's family members after 1985. O'Neill did not invoke the privilege against self-incrimination at that time. O'Neill filed an answer to the complaint but did not invoke any privileges at that time, either.
O'Neill was next deposed on July 10 and July 11, 2007. During this deposition, for the first time, he refused to answer questions by claiming a privilege against self-incrimination. At oral argument, counsel for O'Neill admitted that the privilege was invoked on too broad a scale, but cited a "slippery slope" to waiver of his privilege.
For example, the privilege was asserted in response to questions about whether O'Neill was aware he filed an answer to the complaint and whether he agreed with the denials made by his counsel in that document.
Discussion
A. The Privilege Against Self-IncriminationDelaware law has long recognized that the privilege against self-incrimination can be asserted in a civil setting. The rationale is that almost any crime can also give rise to a civil action, so if the individual is compelled to testify in the civil matter then the constitutional privilege would be "meaningless." Importantly, the individual must have a reasonable fear of criminal prosecution in order to assert the privilege. The burden is on the defendant to show the privilege applies. The privilege is to be broadly applied. Its extension includes any matter which would form a "link in the chain of evidence." B. Statute of Limitations and the Ex Post Facto Clause
Mumford v. Croft, 93 A.2d 506, 508 (Del.Super. 1952).
Id.
Bentley v. State, 930 A.2d 866, 873 (Del.Supr. 2007) citing Kastigar v. United States, 406 U.S. 441, 445 (1972).
Ins. Co. of N. Am. v. Steigler, 300 A.2d 16, 18 (Del.Super. 1972) aff'd, 306 A.2d 742 (Del.Supr. 1973).
Bentley, 930 A.2d at 873 citing Hoffman v. United States, 341 U.S. 479, 486 (1951).
Id.
In response to defendant's claim of the privilege against self-incrimination, plaintiff argues that there can be no reasonable fear of prosecution because the statute of limitations has expired. Defendant counters that it is possible that the legislature could change its mind and extend the limitations period. He also argues the testimony given may incriminate him in other jurisdictions whose statute of limitations has not yet run or incriminate him regarding other alleged victims.
Defendant's claim of reasonable fear of prosecution is without merit. In Stogner v. California, the state passed a criminal statute which permitted prosecution of sex crimes against children even though the statute of limitations expired, so long as the crime was (1) reported, (2) prosecuted within one year of the report, and (3) independent evidence existed to establish the abuse. The United States Supreme Court overturned the law as violating the ex post facto clause of the constitution. The Court recognized that some legislative bodies have extended unexpired statutes of limitations — but distinguished that from the facts at issue (and the case at bar) where the limitations period had already run by the time the law was passed. The former is constitutional while the latter violates the ex post facto clause.
Stogner v. California, 539 U.S. 607, 619 (2003).
Id. at 609.
Id. at 618.
Id.
Therefore, so long as any alleged acts are immune from prosecution because of the statute of limitations, even under a changed law, O'Neill cannot be prosecuted. O'Neill claims the legislature may change its mind, and he cites to a recently-enacted Delaware law permitting civil claims for child sexual abuse; this argument is also without merit as a civil case is different than a criminal case for ex post facto analysis. O'Neill has not cited to any case with a holding contrary to Stogner.
The ex post facto clause applies only to criminal punishment. Helman v. State, 784 A.2d 1058, 1076 (Del.Supr. 2001) citing E.B. v. Verniero, 119 F.3d 1077, 1092 (3d. Cir. 1997).
In fact, in Bryant, the Delaware Supreme Court held that the state could utilize the provisions of 11 Del. C. § 205(e) when the facts alleged acts of sexual abuse that ended in 1989 and 1990 because the five-year statute of limitations had not run by the time the law was changed in 1992. In contrast, the final act of sexual abuse alleged in the case at bar was in 1985. The then-applicable statute of limitations ran in 1990, two years prior to the enactment of § 205(e).
Bryant v. State, 781 A.2d 692 (Del.Supr. 2001).
As the statute of limitations has expired on any alleged sexual abuse against plaintiff in Delaware, there is no reasonable fear of prosecution in this jurisdiction. Moreover, counsel for O'Neill agreed at oral argument that the statute of limitations on acts alleged has run in Delaware and New Jersey. As such, O'Neill has no reasonable fear of prosecution and cannot claim the privilege when questioned about matters concerning plaintiff in those jurisdictions.
O'Neill argues that since Virginia, North Carolina and Maryland have no applicable statute of limitations on felonies, any questioning relating to alleged criminal matters which occurred in those jurisdictions places him in reasonable fear of prosecution. The Court agrees. As such, O'Neill can invoke the privilege against self-incrimination for questions pertaining to those jurisdictions.
See Foster v. Commonwealth of Virginia, 606 S.E.2d 518, 519 (Va.App. 2004); N.C.G.S.A. § 15-1 and State v. Johnson, 167 S.E. 2d 274, 279 (N.C. 1969); State v. Stowe, 829 A.2d 1036 (Md.App. 2003).
With regard to questions relating to acts which occurred in Pennsylvania, O'Neill argues that despite the running of the statute of limitations in that state, Pennsylvania's tolling statute is in effect. As such, he remains in reasonable fear of prosecution. The Court agrees. The law tolls the statute when the allegation is that "a person responsible for the child's welfare" causes injury to that child. While it is questionable whether O'Neill falls within this statute, the Court must resolve doubt in favor of the privilege. O'Neill can invoke the privilege against self-incrimination for questions pertaining to acts alleged to have occurred in Pennsylvania.
42 Pa.C.S.A. § 5554.
O'Neill argues that the federal tolling statute places him in reasonable fear of prosecution. The Court disagrees because federal law states "no statute of limitations shall extend to any person fleeing from justice." There is absolutely no evidence presented by O'Neill, who bears the burden of establishing the privilege, that indicates he fled from justice at any relevant time.
18 U.S.C.A. § 3290.
C. The Privilege Against Self-Incrimination and Rule 404(b)
Father O'Neill next argues that the privilege against self-incrimination applies because any testimony he furnishes in this case has potential to be used against him in a future case, through the admission of 404(b) evidence. The Court disagrees for two reasons; there is no support for the contention that evidentiary rules provide additional constitutional protections, and the issue is not yet ripe.
Delaware Uniform Rule of Evidence 404(b) is identical to its federal counterpart. O'Neill cites to no authority which supports his contention that the privilege against self-incrimination applies when the application arises from 404(b) evidence in a case not yet brought.
Tice v. State, 624 A.2d 399 (Del. 1993).
In fact, there is contrary precedent. In Huddleston, the United States Supreme Court found that for 404(b) purposes, the state need not prove by a preponderance of the evidence that the `other act' occurred — this standard is less than the familiar `beyond a reasonable doubt' standard that is required by the Due Process Clause of the United States Constitution. Therefore, contrary to defendant's assertion that the rules of evidence provide him with some additional level of constitutional protection against self-incrimination, there is evidence that the rules, in fact, require less. There is no additional protection afforded under Rule 404(b).
Huddleston v. U.S., 485 U.S. 681 (1988). See Dahl v. State, 926 A.2d 1077 (Del.Supr. 2007) "The Due Process Clause of the United States Constitution requires that criminal convictions be supported by proof beyond reasonable doubt of all the elements of an offense."
Moreover, the issue is not yet ripe for consideration as O'Neill has not indicated that a case has been brought wherein 404(b) evidence could be used against him.
D. Waiver
Waiver of any privilege is analyzed under a totality of the circumstances test. It is established in Delaware that "when a witness testifies as to a fact or incident without invoking his privilege against self-incrimination, he thereby waives that privilege with respect to the details and particulars of the fact or incident." In Ratsep, the defendant answered interrogatories but did not raise the privilege against self-incrimination and was found to have waived the right.
Howard v. State, 458 A.2d 1180 (Del.Supr. 1983)
Ratsep v. Mrs. Smith's Pie Co., 221 A.2d 598 (Del.Super. 1996) quoting Carey v. Bryan Rollins, 105 A.2d 201 (Del.Super. 1954).
At all relevant times, O'Neill has been represented by counsel. O'Neill has filed an answer to the complaint, wherein he denied the claims against him. O'Neill also filed an affidavit concerning his relationship with plaintiff's mother. Finally, he voluntarily testified at his first deposition, wherein he was represented by counsel, about the last incident of alleged abuse and the allegations against him. He also testified about his social relationship and friendship with plaintiff's family.
For example, the complaint specifically charged "O'Neill intentionally and without plaintiff's consent cause plaintiff to be in fear of immediate harmful or offensive physical contacts by O'Neill" and that he "intentionally and without plaintiff's consent repeatedly made unpermitted physical contact with plaintiff in a harmful and offense way."22 These allegations were specifically denied in the answer. The answer also denies the allegations of paragraph 29, 30, 32, 33, and 34 of the initial complaint, which provide detailed allegations of abuse.
"Father Reece confronted me with allegations of inappropriate behavior with one of the [omitted] children on a night that I had been drinking." Deposition of Rev. James W. O'Neill dated September 21, 2004 p. 62.
O'Neill has now asserted the privilege against self-incrimination in response to questions about his relationship with the family, identification of photographs, and the allegations of abuse, including the last alleged incident. Since he did not invoke the privilege either during his answer or during the initial deposition, he has waived the privilege on matters relating to his relationship with the family, the last incident, and the allegations made against him.
Conclusion
Defendant O'Neill can invoke his privilege against self-incrimination in response to questions concerning allegations in Pennsylvania, Virginia, North Carolina, and Maryland only.
IT IS SO ORDERED.
Upon Consideration of Plaintiff's Motion to Amend: Granted, in Part. Introduction
The question presented to the Court is whether plaintiff's motion to amend the complaint should be denied on grounds that it exceeds the bounds of Superior Court Civil Rule 12(f). The grounds stated for objection include redundancy, scandal, and immateriality.
Background
Plaintiff brought this suit in January 2004 alleging sexual abuse sustained at the hands of defendant Reverend James W. O'Neill. The suit claims damages from breach of contract, civil conspiracy, and personal injury. On October 10, 2007, plaintiff moved this Court to amend the complaint.
The amended complaint seeks to add several counts, which plaintiff states is intended to reflect the recently enacted Child Victim's Act, 10 Del C. § 8145. Section (a) of that legislation provides that:
"a cause of action based upon the sexual abuse of a minor by an adult may be filed in the Superior Court of this State at any time following the commission of the act or acts that constituted sexual abuse."
The statute provides a two-year time period for plaintiffs who had formerly been barred by the statute of limitations to bring a cause of action. Plaintiffs can also bring a cause of action for gross negligence against an "institution, agency, firm, business, corporation, or other public or private legal entity that ow[n]ed a duty of care to the victim, or the accused."
Discussion
Delaware law allows for liberal amendment of pleadings, unless there is serious prejudice, undue delay or bad faith. An example of sufficient prejudice to deny a motion to amend is when an amendment is sought the morning of trial. The burden is on the objecting party to demonstrate prejudice. The Court must balance the hardships; even if prejudice can be found, the Court must examine the effect on the party seeking amendment if it is not allowed.Superior Court Civil Rule 12(f) allows the Court to strike "redundant, immaterial, impertinent, or scandalous matter." Such a motion is only granted if it is "clearly warranted" and any doubts are resolved in favor of the pleading.
Pack Process Inc. v. Celotex Corp., 503 A.2d 646, 660 (Del.Super. 1985).
Plaintiff seeks to amend the complaint to add a count of gross negligence against Defendants Oblates, Salesianum and Diocese. This has raised no objection from defendant Diocese. The others have objected to this count as redundant. The Court finds that it is not redundant in light of the recently enacted statute, as it makes it clear that plaintiff intends to invoke the provisions of that statute.
Next, plaintiff seeks to amend to add a count of assault and battery, which has raised no objection from the Diocese. The others have objected on grounds that it is redundant. Count VIII of the amended complaint adds a claim for breach of contract, which, as noted above, is not objected to by the Diocese but the other defendants claim it is redundant. Count IX claims a breach of fiduciary duty, which raises no objection from the Diocese. Count XII adds a claim of aiding and abetting which similarly has raised no objection from the Diocese. As stated above, the objections from defendants that the amended counts are redundant are insufficient to demonstrate that striking these counts is clearly warranted. Accordingly, they are permissible. The counts of fraud and conspiracy are discussed in greater detail below.
Count X: Fraud
The Diocese objects to the addition of this count on two grounds; for failure to plead with particularity and that the allegations are belied by the evidence of record in this action. The latter issue is not given further elaboration in defendant Dioceses' response to the motion to amend. The remaining defendants have raised no objection.
A. Particularity
Superior Court Civil Rule 9 requires an averment of fraud be stated with particularity. The rule requires particularity such that the opposing party is on notice of the claims to be adjudicated. A complaint satisfies this requirement when it indicates the time, place, content, and speaker of the alleged false representations.
Ariba, Inc. v. Elec. Data Sys. Corp., 2003 WL 943249 at *7 (Del.Super.).
Id. at *2 citing Browne v. Robb, 583 A.2d 949, 955-6 (Del. 1990).
Paragraphs 130-136 allege that, by licensing and employing Father O'Neill, defendants the Oblates, Salesianum, and the Diocese represented that O'Neill was a "religious authority and leader of integrity and worthy of plaintiff's trust." The complaint incorporates all other paragraphs in this count of fraud. Specifically, paragraph 47 states that "plans and designs were intended to induce reliance by plaintiff and his parents, prevent knowledge of the actual facts, exclude suspicion and prevent injury to defendants." The amended complaint also alleges that defendants were on notice of a long-standing problem of sexual abuse of minors by priests, but have recently engaged in actions to cover up this problem, so that "at all times, Oblates, Salesianum and Diocese were on notice of the threat of injury to children from its clergy such as O'Neill."
¶ 30.
¶ 159.
The complaint alleges that defendants entered into an agreement with plaintiffs, whereby O'Neill would be removed from his duties and isolated from children. But, plaintiff claims, "at the time of the formation of the contract, defendants had no subjective intention to comply . . ."
¶ 55-69.
¶ 67.
The above-cited portions of the complaint allege, specifically, what defendants told plaintiff's parents, when, and with what purpose — to "protect the institutional interests and power of the Roman Catholic Church." The Court finds that the amended complaint pleads fraud with sufficient particularity under our rules. Defendants are on sufficient notice to defend themselves from allegations of fraud.
¶ 43.
B. Belied by the Evidence
As to the argument that the allegations are belied by the evidence, defendants have not pointed the Court to any evidence to enable it to ascertain the merit of this argument. As such, the Court makes no comment other than to state that defendants have failed to sustain their burden of showing prejudice on this ground.
Count XI: Conspiracy
Defendant Diocese strenuously objects to the count adding conspiracy. The Diocese contends that "the clear purpose of the 34 paragraphs of proposed new Count XI is to broaden the scope of discovery and trial in this case . . . to encompass the alleged abuse of all victims byall accused priests." In particular, defendant Diocese claims that 31 additional priests are named in the complaint and "there is no allegation that any of these priests had anything to do with plaintiff Eden." Additionally, defendant Diocese objects on grounds of prejudice and undue burden. The remaining defendants also object on grounds that the allegations within this count are immaterial, impertinent and scandalous. Plaintiff counters, with respect to paragraph 165, that these priests were named in a press release issued by the Diocese. With regard to paragraph 166, plaintiff counters that all but three have been identified in grand jury indictments. The remaining three "have recently been brought to Plaintiffs' counsel's attention by other clients."
D.I. 129 at ¶ 9.
Id. at ¶ 10.
Plaintiff's Response to Defendant's Motion to Strike, p. 2.
Id.
The Court agrees that paragraphs 165 and 166 of the amended complaint falls within Superior Court Civil Rule 12(f) because the information contained within them is immaterial and impertinent. While the complaint alleges conspiracy and names these priests as part of the conspiracy, it does not allege any harm to plaintiff by these priests. The information is also prejudicial to defendants as it will greatly widen the scope of discoverable information in this case, which is limited to the harms sustained by plaintiff — not other named or potential plaintiffs. As such, paragraphs 165 and 166 are stricken from the complaint.
The remaining defendants object to the allegations of church history as "immaterial, impertinent, and scandalous." The Court finds merit in this argument, in part. While Superior Court Civil Rule 9(b) requires that negligence be stated with particularity, the complaint does contain allegations that are immaterial. The following amended paragraphs are allowed as they provide sufficiently specific detail to plead gross negligence under our rules: 138, 141, 149, 150, 151, 152, 153, 159.
Defendant St. Ann's Catholic Church's Opposition to Plaintiff's Motion to Amend, filed October 23, 2007.
Conclusion
Plaintiff is granted leave to amend the compliant in accordance with this opinion.
IT IS SO ORDERED.