Categories
Search
Categories

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

Civil No. 2:13-CV-00039

HEARTS WITH HAITI, INC.

and MICHAEL GEILENFELD,

Plaintiffs

v.

PAUL KENDRICK,

Defendant

SPECIAL MOTION TO DISMISS PURSUANT TO 14 M.R.S.A. § 556

Defendant Paul Kendrick, by and through his attorneys Rudman Winchell, hereby moves this court for a dismissal of this lawsuit pursuant to Maine’s Anti-SLAPP Statute, Title 14 M.R.S.A. Section 556.

I. INTRODUCTION

Mr. Kendrick is a longtime volunteer advocate for victims and survivors of child sexual abuse. Mr. Kendrick has spoken out on numerous occasions against Catholic bishops, priests, nuns and Church employees on behalf of the victims of child sexual abuse crimes. He is part of a broader public movement to hold accountable perpetrators of sexual violence against children and the institutions with which they are affiliated.

All of the statements attributed to Mr. Kendrick in this lawsuit were made for the purpose of encouraging public support for governmental intervention and therefore constitute petitioning activity, protected by the U.S. and Maine Constitutions. Consequently, this lawsuit should be dismissed in its entirety, with prejudice.

II. FACTS

Mr. Kendrick first became involved in the public campaign to confront the problem of child sexual abuse within the Catholic Church and organizations affiliated with the Church in 1999. (Kendrick Aff. ¶ 3, attached hereto.) By May of 2002, Mr. Kendrick had become an active participant and activist in the growing public campaign against priest child sex abusers and others employed by, and affiliated with, the Catholic Church. (Kendrick Aff. ¶ 5.) Working with others, he co-founded the Maine chapter of Voice of the Faithful, a non-profit organization dedicated to raising public awareness and encouraging public involvement in the movement to support those who are victims/survivors of child sexual abuse. (Kendrick Aff. ¶ 5.)

For more than twelve years, Mr. Kendrick has acted as an advocate for the protection of children. He has worked with other advocates to ensure that: a) Catholic Church officials employ a “zero tolerance” policy by removing all child molesters from the priesthood; b) Catholic bishops, priests and other church employees who conceal, cover-up, ignore and/or fail to report suspected child sexual abuse to law enforcement authorities are removed from their positions in the church; c) databases are published in every Catholic diocese listing the names, photos and other detailed information about priests and church workers who sexually abuse children; d) Church documents detailing evidence and testimony about child sexual abuse cases are made public;e) policies, systems and procedures designed to protect children are implemented and maintained; f) long-term, professional mental health treatment is available at no cost to provide support to those who are abused; g) the legal tactics employed by bishops and church lawyers against child sexual abuse victims is stopped; e) measurable reparations are made to compensate victims/survivors for the harms and injuries inflicted upon them as a result of their abuse. All of these goals require the involvement and assistance of government agencies and the general public. (Kendrick Aff. ¶ 9.)

For the past four years, Mr. Kendrick and other child protection advocates have been immersed in supporting the abuse victims in Haiti. It was in this context that Mr. Kendrick became aware of the allegations surrounding Michael Geilenfeld, his orphanage in Haiti, and the nonprofit organization with which he is affiliated, Hearts with Haiti. (Kendrick Aff. ¶¶ 11-12.)

Mr. Kendrick was involved in a similar public campaign that ultimately led to the incarceration of the director of a boarding school in northern Haiti. (Kendrick Aff. ¶¶ 10-12.) In April 2003, Mr. Kendrick traveled to northern Haiti with a medical group from southern Maine. During this trip, he was introduced to a fellow Fairfield University alumnus, who five years later was removed as director of a boarding school in Haiti due to allegations of child sexual abuse against him. (Kendrick Aff. ¶ 6)

As a result of the publicity surrounding Haitian boarding school case, in January of 2011 Mr. Kendrick received information from a journalist in Haiti suggesting that children residing in an orphanage, under Mr. Geilenfeld’s care, had been sexually abused by Mr. Geilenfeld. (Kendrick Aff. ¶ 12.) Mr. Kendrick’s initial response was simply to raise the issue with Hearts with Haiti, asking it for a response to the allegations. (Kendrick Aff. ¶¶ 13-15.) When Hearts with Haiti responded to Mr. Kendrick’s concerns dismissively, he initiated his own investigation. (Kendrick Aff. ¶ 15.)

In the months and years that followed, Mr. Kendrick discovered the identities of multiple former residents of Mr. Geilenfeld’s orphanage that were witness to acts of abuse. Some but not all of these witnesses were willing to come forward and speak publicly about the abuse. (Kendrick Aff. ¶ 15.) Armed with credible reports from witnesses, and having received no cooperation from Hearts with Haiti, Mr. Kendrick began to speak publically about the abuse that occurred in Mr. Geilenfeld’s orphanage. Mr. Kendrick directly petitioned government officials in the U.S. and Haiti, seeking intervention by law enforcement agencies. Additionally, he posted public statements and was interviewed by the media. (Kendrick Aff. ¶¶ 17-18.)

As in prior advocacy campaigns, Mr. Kendrick’s ultimate goal was action on the part of the government to intervene for the protection of children and the prosecution of those responsible. This goal was approached through two principle means: (1) the direct lobbying of government agencies such as the National Haitian Police (Police Nationale d’Haiti), U.S. State Department investigators located in the U.S. Embassy in Port au Prince, Haiti, U.S. ICE/Homeland Security investigators and United Nations investigators; and (2) raising public awareness of the plight of the abused children in the hopes that an informed public would add to the pressure on government agencies to launch a formal investigation. This two-tiered approach had proved effective in his prior campaign involving a Haitian boarding school, resulting in the prosecution of those responsible. (Aff. at ¶¶ 11-12.) All of the public statements made by Mr. Kendrick in the course of his advocacy concerning the Plaintiffs were made for the purpose of encouraging public participation in the campaign to pressure the government to initiate a formal investigation into the Plaintiffs’ activities.

II. LEGAL STANDARD

Maine’s anti-SLAPP statute (Strategic Lawsuit Against Public Participation), 14 M.R.S. § 556, “is designed to guard against meritless lawsuits brought with the intention of chilling or deterring the free exercise of the defendant’s First Amendment right to petition the government by threatening would-be activists with litigation.”Schelling v. Lindell, 2008 ME 59, ¶ 6, 942 A.2d 1226, 1229. “The statute provides for a special motion to dismiss when a claim asserted against the moving party is based on the moving party’s exercise of the moving party’s right to petition under the Constitution of the United States or the Constitution of Maine.” Id. (quoting 14 M.R.S. § 556.).

Maine’s Anti-SLAPP statute requires a two-step process. “At the first step, the court determines whether the anti-SLAPP statute applies. At this step, the moving party (i.e., the defendant) carries the initial burden to show that the suit was based on some activity that would qualify as an exercise of the defendant’s First Amendment right to petition the government.” Nader v. Me. Democratic Party, 2012 ME 57, ¶ 15, 41 A.3d 551, 557. During this first step, the “focus solely is on the conduct complained of, and, if the only conduct complained of is petitioning activity, then there can be no other substantial basis for the claim.” Warren v. Preti, Flaherty, Beliveau & Pachios, LLC, 2012 Me. Super. LEXIS 89 (Me. Super. Ct. Mar. 12, 2012).

Assuming the moving party meets its burden during the first step in the process, the burden then shifts to the non-moving party to “make a prima facie showing that any . . . of the petitioning activities by the moving parties . . . were devoid of any reasonable factual support or arguable basis in law.” Nader, 2012 ME 57, ¶ 36, 41 A.3d at 563.

III. ARGUMENT 

In the present case, (A) all of the speech complained of by the Plaintiffs falls within the scope of constitutionally protected petitioning activity and (B) was not devoid of an arguable basis in fact or law.

A. Petitioning Activity

“The Legislature intended to define in very broad terms those statements that are covered by [Maine’s Anti-SLAPP] statute.” Schelling, 2008 ME 59, ¶ 12, 942 A.2dat 1230 (emphasis added). Maine’s Anti-SLAPP statute expressly defines petitioning activity to include:

•  Any written or oral statement made before or submitted to a legislative, executive or judicial body, or any other governmental proceeding;

•  any written or oral statement made in connection with an issue under consideration or review by a legislative, executive or judicial body,

•   or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration;

• or any other statement falling within constitutional protection of the right to petition government.

14 M.R.S.A. § 556.

The Law Court has “construed the meaning of petitioning activity liberally.” Schelling, 2008 ME 59, ¶ 12, 942 A.2d at 1230. In Maietta Constr., Inc. v. Wainwright, 2004 ME 53, ¶ 7, 847 A.2d 1169, 1173, the Law Court’s construction of the meaning was broad enough to encompass a citizen’s published communications to newspapers aimed at influencing the outcome of a contractual dispute between the City of South Portland and a contractor. Maietta Constr., Inc. v. Wainwright, 2004 ME 53, ¶ 7, 847 A.2d 1169, 1173. In the case of Schelling, the Law Court held that letters to the editor accusing a “prominent member” of the Natural Resources Counsel of Maine of using her “political clout to garner special status for her own business,” likewise fit within the broad scope of petitioning activity. 2008 ME 59, ¶ 3, 942 A.2d 1226, 1229. Importantly, an activist’s petitioning activity need not address issues that are currently pending before a legislative or executive body. “The definition of the right to petition the government provided by the statute is unquestionably broad enough to encompass activities related to matters not currently pending before a legislative body.” Schelling, 2008 ME 59, ¶ 14 (emphasis added).

In the present case, Mr. Kendrick’s activism fits squarely within the statute’s protection for “statement[s] reasonably likely to enlist public participation . . . .” 14 M.R.S.A. § 556. Mr. Kendrick is an activist involved in various campaigns to bring public attention to child sexual abuse and exploitation; a matter that is unquestionably of public and governmental concern. As was the case in Schelling, the fact that the issues raised by Mr. Kendrick were not currently pending before any executive or legislative body is inapposite. The sole question during the first step of the Anti-SLAPP analysis is whether his statements had a reasonable likelihood of encouraging public involvement in his campaign. A review of statements attributed to him in the Complaint clearly reflect such a likelihood.

Paragraphs 47 through 75 set forth the specific statements attributed to Mr. Kendrick that form the basis of the Plaintiffs’ Complaint. The common denominator of these statements is the allegation of the existence of child sexual abuse at Mr. Geilenfeld’s orphanage. This seriousallegation is stated bluntly throughout the statements. The statements are shocking because theconduct that is complained of is shocking. The statements are couched in terms clearly intended to shock the conscience of ordinary readers with the goal of encouraging public support for government action. Thus, all of these statements are reasonably likely to encourage public participation in Mr. Kendrick’s cause.

B. Plaintiffs Cannot Meet the Burden of Establishing that Mr. Kendrick’s Petitioning Activity was Devoid of Any Arguable Basis in Fact or Law

During the second step of the Anti-SLAPP process, the nonmoving party must submit “prima facie evidence to support its burden of showing that the moving party’s petitioning activity was ‘devoid of any reasonable factual support or any arguable basis in law and that the moving party’s acts caused actual injury to the responding party.” Nader, 2012 ME 57, ¶ 33, 41 A.3d at 565 (quoting 14 M.R.S.A. § 556).

Each of the Plaintiffs’ claims is premised upon statements attributed to Mr. Kendrick, asserting that the Plaintiffs either engaged in, or enabled, sexual misconduct or abuse. Assertions regarding sexual abuse or misconduct is the sine qua non for all claims in this lawsuit. To meet their burden during the second phase of the Anti-SLAPP process, the Plaintiffs must posit prima facie evidence showing that the allegation of child sexual abuse was “devoid of any reasonable factual support.” 14 M.R.S. § 556. The dictionary defines “devoid” as “completely lacking.” American Heritage College Dictionary (4th ed.). Thus, the plain language of the statute places the burden on the Plaintiffs to establish that Mr. Kendrick’s allegations completely lacked a factual basis.

Mr. Kendrick did not make any public statements until after he had received information indicating that abuse was occurring and Hearts with Haiti had failed to provide a meaningful response to his inquiries. As is discussed in his affidavit, Mr. Kendrick was made aware of information indicating that children had been abused by Mr. Geilenfeld from multiple sources, including journalists and victims that have come forward and made public statements. The existence of multiple independent sources for the allegation provides—at a minimum—that the statements were not devoid of an arguable basis in fact. Therefore, the Plaintiffs cannot meet their burden in the second step of the Anti-SLAPP process.

Wherefore, Defendant Paul Kendrick respectfully requests that this Court enter a dismissal with prejudice on all counts of the Plaintiffs’ Complaint, together with attorney fees, costs, and any other relief deemed appropriate under the circumstances.

Date: April 8, 2013
/s/F. David Walker, IV
F. David Walker, IV, Esq. Rudman Winchell
Attorneys for Defendant
84 Harlow Street – P.O. Box 1401 Bangor, ME 04402-1401
(207) 947-4501

CERTIFICATE OF SERVICE

I, F. David Walker, IV, Esq., hereby certify that on April 8, 2013, I filed Special Motion To Dismiss Pursuant To 14 M.R.S.A. § 556 with the Clerk of the United States District Court using the CM/ECF system, which will send notification electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).

/s/ F. David Walker, IV
F. David Walker, IV, Esq. Rudman & Winchell

__________________________________________________________________________________________

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

Civil Action No. 2:13-00039-JAW

HEARTS WITH HAITI, INC.

and MICHAEL GEILENFELD,

Plaintiffs

vs. PAUL KENDRICK,

Defendant

AFFIDAVIT OF PAUL KENDRICK

I, Paul Kendrick, being duly sworn, deposes and says as follows:

1. My name is Paul Kendrick. I am the defendant in the above captioned lawsuit. I presently reside in the town of Freeport, County of Cumberland, and State of Maine.

2. I am presently employed as a Vice-President, Financial Advisor, with RBC Wealth Management, a division of the Royal Bank of Canada, providing investment services to individuals and institutions.

3. In late 1999, I began to ask questions of Cheverus High School (my alma mater) officials and to speak out publicly in support of a group of former Cheverus students who were reporting to Cheverus officials that they were sexually abused by two Cheverus teacher/coaches while the former students attended Cheverus. A few years later, in early 2002, I became increasingly concerned about news reports revealing multiple instances of child sexual abuse by Catholic priests, religious and church workers. As a lifelong, Jesuit educated Catholic, these media reports were a matter of deep concern and I felt an obligation to join the growing public movement that was seeking to hold Catholic Church officials accountable and responsible for enabling and concealing these horrific crimes against children.

4. Since 1999, I have become increasingly involved as a volunteer for the prevention of child sexual abuse and the effort to encourage government agencies to investigate and ultimately prosecute the perpetrators of abuse.

5. In May of 2002, I became actively involved in advocating for victims of child sexual abuse as co-founder of Voice of the Faithful in Maine, a worldwide non-profit organization dedicated to supporting child sexual abuse victims, raising public awareness and encouraging public involvement in the movement to protect children and bring perpetrators of child sexual abuse to justice.

6. In April 2003, I traveled to northern Haiti with a medical group from southern Maine. During this trip, I was introduced to a fellow Fairfield University alumnus, who five years later was removed as director of a boarding school in Haiti due to allegations of child sexual abuse against him.

7. In recognition of my efforts to support victims, to protect children and to bring perpetrators of child sexual abuse to justice, in April 2003, I was named as one of four recipients of MECASA’s (Maine Coalition of Sexual Assault Agencies) annual “Make A Difference Award.” Engraved on plaque: “In recognition of your steadfast commitment to ending sexual assault and sexual abuse in Maine and to ensuring that ongoing support and services are available to victims and survivors.”

8. The primary goal of my 13 years as a volunteer child protection advocate is to raise public awareness of the lifelong trauma that child sexual abuse inflicts upon its victims, to stand side by side with and offer support to those who are abused and to encourage governmental intervention to stop future abuses from occurring and to bring the perpetrators of child sexual abuse to justice.

9. For more than twelve years, I have acted as a diligent and persistent advocate for the protection of children and have stood in solidarity with those who are victims and survivors of child sexual abuse by working to ensure that; a) Catholic Church officials employ a “zero tolerance” policy by removing all child molesters from the priesthood; b) Catholic bishops, priests and other church employees who conceal, cover-up, ignore and/or fail to report suspected child sexual abuse to law enforcement authorities are removed from their positions in the church; c) Databases are published in every Catholic diocese listing the names, photos and other detailed information about priests and church workers who sexually abuse children; d) Church documents detailing evidence and testimony about child sexual abuse cases are made public; e) Policies, systems and procedures designed to protect children are implemented and maintained; f) Long term, professional mental health treatment is available at no cost to provide support to those who are abused; g) The mistreatment, bullying and hardball legal tactics employed by bishops and church lawyers against child sexual abuse victims is stopped;e) Measurable reparations are made to compensate victims/survivors for the harms and injuries inflicted upon them as a result of their abuse. All of these goals require the involvement and assistance of government agencies, as well as the general public.

10. In August 2008, I began asking questions via email of a Haitian journalist who had first reported a story nine months earlier about orphaned Haitian boys who were sexually abused by a U.S. citizen, the executive director of a boarding school located in northern Haiti. The school was supported and operated by my alma mater, Fairfield University, and other Catholic institutions.

11. For the past four plus years, the Haitian journalist, child protection advocates in New England and I have supported and advocated for the boys who were sexually abused at the boarding school in Haiti. An ICE/ Homeland Security investigation led to the arrest and 2010 conviction of the perpetrator by a U.S. federal court in CT. I and other advocates raised thousands of dollars to provide food, education, clothing, shelter and other practical and emotional needs for the abuse victims in Haiti.

12. Due to the publicity surrounding the child sexual abuse cases in northern Haiti, in January of 2011 a woman with many years of experience visiting the Plaintiff’s orphanage in Haiti, wrote to the journalist with information that Plaintiff Michael Geilenfeld had abused and molested Haitian children who were under his care in an orphanage operated by Mr. Geilenfeld in Haiti.

13. As a result of receiving this information concerning Mr. Geilenfeld and his orphanage, I began making inquiries with Plaintiff Hearts with Haiti, seeking information regarding the allegations.

14. My concerns that Mr. Geilenfeld was abusing, or permitting the abuse of children under his care, became more acute when representatives from Hearts with Haiti failed to provide meaningful substantive responses to my inquiries.

15. Working with other child protection advocates, organizations, and journalists, I conducted my own research into the allegations concerning Mr. Geilenfeld. During the course of my investigation, I learned the identity of multiple victims, some of whom had already come forward and alleged that Mr. Geilenfeld has sexually abused them.

16. Having personally interviewed many of the victims of abuse, and having received no viable assistance from Hearts with Haiti officials in addressing these allegations, I began speaking publicly about these issues.

17. Since learning of the multiple allegations of child sexual abuse at the hands of Mr. Geilenfeld, I have published stories regarding this issue on the Internet, been interviewed by members of the press, and appeared on public radio programs advocating for the victims of Mr. Geilenfeld and his orphanage.

18. In addition to making public statements, I, and my fellow advocates, have directly reached out to governmental entities such as the National Haitian Police (Police Nationale d’Haiti), U.S. State Department investigators located in the U.S. Embassy in Port au Prince, Haiti, U.S. ICE/Homeland Security investigators and United Nations investigators for the purpose of encouraging a criminal investigation into the allegations concerning Mr. Geilenfeld and Hearts with Haiti.

19. All of the public statements that I have made concerning Mr. Geilenfeld and Hearts with Haiti were made solely for the purpose of raising awareness of the allegations in the hope that increased public awareness would ultimately pressure law enforcement agencies into formally investigating the Plaintiffs, bringing charges against them, and preventing abuse from occurring in the future.

20. I have reviewed all of the allegations contained in the Plaintiffs’ Complaint. In paragraphs 47 through 75, the Plaintiffs allege that I made a series of specific statements that are alleged to be tortious. I recognize most, but not all of these “statements,” as incomplete quotations taken from longer emails, blog entries, and interviews.

21. I believe the information conveyed in these quotes to be true. Many of the quotes, such as the quote contained in paragraphs 49 and 50, paraphrase statements made directly to me by victims of Mr. Geilenfeld.

22. It is difficult to address all of the quotes set forth in the Complaint without seeing the full document from which they were harvested. Nevertheless, I can confidently state that all of the public statements that I have made were made for the purpose of generating public outcry and support that would ultimately impel government agencies, in Haiti and the United States, to investigate Mr. Geilenfeld and stop the abuse of children that was reported by multiple witnesses.

23. My appeals to the general public, donors, and to law enforcement were all part of a campaign to bring about the investigation and U.S. federal prosecution of Mr. Geilenfeld and others responsible for the physical and sexual abuse of children.

Dated: April 8, 2013
STATE OF MAINE
CUMBERLAND, ss
__/s/Paul Kendrick__________________

 

April 8, 2013

Personally appeared the above-named Paul Kendrick, who first being duly sworn, made oath that the foregoing affidavit which he has signed and to which he subscribes is based on his own personal knowledge and that the facts set forth therein are true.

/s/Heather Correia
Notary Public
HEATHER CORREIA
Notary Public, Maine
My Commission Expires February 4, 2020

Leave a Reply

You must be logged in to post a comment.