They had six months after the date of mailing to do this. The notice of the appeals board decision was mailed on May 20, 2014.They filed suit via Lancaster & Anastasia on November 17, 2014, just under the wire. Of course, it was on November 12, 2014 that the California Supreme Court refused to hear the Bush group's appeal of the appeals court's decision. Among other things, this says Lancaster & Anastasia are in reactive mode, trying to plug leaks in the dike as they pop up. And there have been a lot of leaks.
My wife used to practice employment law, and she notes that collateral administrative findings, such as the unemployment appeals board's finding that there was no proof of Fr Kelley's misconduct, can damage an employer's court case. Thus it's critical for Lancaster & Anastasia to get the administrative finding out of the record. Fr Kelley in this case isn't the defendant, it's the state unemployment appeals board. It isn't the money here, as far as Bush et al are concerned, it's the administrative record, which they absolutely must get rid of prior to the trial for civil theft against Fr Kelley.
(Actually, I'm not sure there's time for that, given that the February 25 hearing on the unemployment case is only a pretrial conference, which will schedule the actual trial for a later date -- but the "theft" trial will be part of the Rector, Wardens, and Vestry cases coming up in April, probably sooner than the unemployment trial. More bad news for Bush.)
My wife still has an account to get court documents, so we pulled the petition in this case (BS152017). Here's the crux of Lancaster's response to the administrative finding:
Kelley was not, however, "wrongfully terminated" as he stated, the matter of his termination being an ecclesiastical question reserved to the highest ecclesiastical authority of the Anglican Church in America. . .Lancaster & Anastasia then reiterate the record of Fr Kelley's kangaroo proceeding, including the various unfounded and defamatory allegations of "illegal or immoral conduct". Their complaint is that the administrative board erred in applying ordinary rules of evidence in determining that the allegations of misconduct were unfounded -- what they should have done was take the bishop's word for what had happened. (I'm not kidding.)
Unfortunately, what they did was just copy their "highest ecclesiastical authority" arguments in front of Judge Linfield in the original trial and in front of the appeals court, and those arguments were rejected at the appellate level. My wife thinks Lancaster wrote the petition before the appeals court ruling and simply filed what he'd already written.
What observers of the case think needs to happen is for this case to be moved from Department 86 (not a good number for that case anyhow!) to Department 32, where the other Rector, Wardens, and Vestry cases are being tried. In addition, the state's attorney defending the unemployment appeals board needs to be made aware of the appellate ruling on the Rector, Wardens, and Vestry cases, where the same argument was rejected.
Efforts are being made to identify and contact the state's attorney handling the case, although he or she may well be conscientious enough to find the appellate ruling independently. The judge in Department 32 will probably not be pleased to see this argument wandering around like the undead.
The petition strongly suggests to me that Lancaster is basically out of gas and has no other arguments to support his case. My guess is that, if the civil theft case isn't thrown out on the basis that the Bush group lacks standing to sue, Lancaster will have to argue the same thing he argues in the petition -- ordinary rules of evidence can't apply; the court must defer to the bishop and the ACA kangaroo as the finders of fact. I don't think that's going to play well before this judge.
