ARMENIAN-AMERICAN LAWYERS AND LEADERS SHOULD COUNTER RULING OF APPEALS COURT
By Harut Sassounian
The California Courier
Aug 25, 2009
The U.S. 9th Circuit Court of Appeals issued an outrageous judicial
opinion last week, ruling that the California law that extended the
deadline for Armenian-Americans to sue life insurance companies for
unpaid claims from the Genocide-era was unconstitutional.
Furthermore, in a split decision, the Court made a sweeping
pronouncement claiming that the State of California had infringed on
the foreign affairs power reserved by the Constitution exclusively
to the federal government, just because the law in question included
a reference to the Armenian Genocide. Two of the three federal judges
asserted that Section 354.4 of the California Code of Civil Procedure,
adopted by the California Legislature in 2000, contravened the federal
government’s policy of not acknowledging the Armenian Genocide.
By adopting this law, the State of California intended to provide its
residents and others the opportunity to protect their legal rights
by allowing them until December 31, 2010 to file lawsuits against
foreign and domestic life insurance companies which had not paid
claims dating back to the Genocide era.
On the basis of this law, a class action lawsuit was filed against
New York Life Insurance Company which was settled in 2005 for million
dollars. A second class action lawsuit was filed against Axa, a French
life insurance company. It was settled for .5 million.
A third class action lawsuit was filed against Victoria Verisherung
AG and two affiliated German insurance companies in 2003. Father
Vazken Movsesian, Pastor of St. Peter Armenian Church in Glendale,
was the lead plaintiff.
The attorneys for the German companies contested the lawsuit and
filed a motion to dismiss. Federal Judge Christina Snyder rejected the
defendants’ contention by ruling that Section 354.4 did not infringe
on the federal government’s foreign affairs powers. The defendants
then filed an appeal claiming that the California Law "conflicts with
the Executive Branch’s policy prohibiting legislative recognition" of
the Armenian Genocide. They pointed out that the Administrations of
Presidents Bush and Clinton had opposed all three Armenian Genocide
resolutions submitted to the House of Representatives in 2000, 2003
and 2007.
Last week, the U.S. 9th Circuit Court of Appeals over-ruled Judge
Snyder, asserting that the California Law in question "impermissibly
infringes" on the jurisdiction of the U.S. government. Two of the
three judges of the Appeals Court, David R. Thompson and Dorothy
W. Nelson, sided with the German insurance companies. The third judge,
Harry Pregerson, sided with the Armenian plaintiffs, contending that
the State of California has the right to ensure that its residents
are fairly treated by insurance companies. He also asserted that he
could not find "any evidence of an express federal policy" forbidding
states from using the term "Armenian Genocide."
This Appeals Court ruling has very serious consequences for the
Armenian Cause, far beyond the issue of mere life insurance claims.
It was highly unusual that Judge Dorothy Nelson was absent from
the bench when attorneys from both sides were presenting their oral
arguments to the Court of Appeal. Given her apparent lack of interest
in this case, one wonders if she delegated viewing the videotape of
the hearing to her law clerks.
Armenian-Americans should call for the impeachment of Judges
Thomson and Nelson for legislating from the bench, falsely claiming
that Congress and individual states are "prohibited" from adopting
resolutions on the Armenian Genocide, and injecting political views
into their judicial opinion. It is incredible that judges who live in
Southern California — in the midst of the largest Armenian community
in the world — are so ignorant about the most basic facts of the
Armenian Genocide.
There are also serious errors in the opinion issued by the two
judges on August 20, 2009. For example, on page 11434, they claim
that "there is no citation or evidence in the record of these
other thirty-nine state statutes which purportedly reference
the "Armenian Genocide."" This statement is patently false. On
page 19 of the "Answering Brief" filed on April 30, 2008, the
plaintiffs’ attorneys provide the following citation: "To date,
thirty-nine states have formally recognized the Armenian Genocide
by legislation or proclamation. See, Armenian National Committee
of America, "Genocide Recognition by U.S. States’ Online at
" tes_map.php."
Judges Thompson and Nelson, in their eagerness to prove that California
contradicted the Executive Branch’s policy on the Armenian Genocide,
selectively refer only to the resolutions that had failed to come
to a full House vote. The judges do not mention the material fact
that in line with California’s statute 354.4, the U.S. House of
Representatives twice adopted resolutions on the Armenian Genocide
in 1975 and 1984, and Pres. Reagan issued a Presidential Proclamation
in 1981, acknowledging the Armenian Genocide.
These judges are also plainly wrong in claiming that the U.S. Congress
and individual States had interfered in the formulation of
U.S. foreign policy on the Armenian Genocide. The resolutions adopted
by 41 U.S. States and hundreds of proclamations issued by governors,
mayors, and county supervisors throughout America are commemorative in
nature, simply reaffirming the U.S. record on the Armenian Genocide and
urging the President of the United States to do likewise. Furthermore,
the U.S.
government does NOT have a policy of denying the Armenian Genocide.
Interestingly, the Appeals Court judges disclosed that Turkish
officials had made a sinister attempt to interfere in their
ruling. They stated that Nabi Sensoy, the Turkish Ambassador to the
United States, sent them a letter expressing his country’s strong
opposition to California statute 354.4, and asking the Court to
overturn it. The Turkish Ambassador had sent a similar letter earlier
to another Federal Judge, trying to interfere in a lawsuit by Armenian
plaintiffs against German banks. Although Judges Thomson and Nelson
assert that they ignored the Turkish Ambassador’s angry letter, it must
have surely reinforced their own view that California was intruding
into Washington’s conduct of foreign policy. It is simply appalling
that the Turkish government would try to stick its nose in a lawsuit
between Armenian-Americans and German insurance companies even though
the plaintiffs in this case neither accuse Turkish officials of any
wrongdoing nor make any demands from them. Similarly, the attorneys
for the German insurance companies have no business objecting to
whether California was infringing upon U.S.-Turkish relations.
The Law offices of Geragos & Geragos; Kabatek, Brown, Kellner LLP;
and Yeghiayan Law Firm — the attorneys for the plaintiffs — must
have realized by now that this is no longer simply a life insurance
issue dealing with the unpaid claims of their clients. This lawsuit
has now mushroomed into a case that calls into question the authority
of California and 40 other States to acknowledge the Armenian
Genocide. Furthermore, it is highly puzzling why the plaintiffs’
attorneys had not invited California’s Attorney General to file a
friend of the court brief to defend his State from accusations that it
had adopted a statute that ostensibly violated the U.S. Constitution.
Hopefully, this serious oversight would be remedied by requesting that
the State Attorney General file such a brief when the plaintiffs’
attorneys seek a rehearing of the case "en banc" by a larger panel
of the Court of Appeals.
Should all appeals fail, however, Armenians could lobby for the
adoption of a new California statute that would allow the filing of
lawsuits against foreign insurance companies, without the problematic
language.
For several years, this writer has been urging the Armenian American
community and its political leadership to stop pursuing the adoption
of additional congressional resolutions that simply repeat what was
already accomplished in 1975 and 1984, and to re-channel their efforts
to more productive legal demands from the government of Turkey through
U.S. and European courts. It is now clear that the repeated and failed
Armenian attempts to pass previously adopted resolutions may not only
be wasting valuable time and resources, but could also be detrimental
to the pursuit of Armenian legal claims.
Finally, Pres. Obama and several previous Presidents must bear their
share of responsibility for this unwelcome judicial development, given
the fact that they pledged to acknowledge the Armenian Genocide as
candidates and reneged on their promises, once in office. Pres. Obama
should be made aware of the serious legal consequences of his breach
of trust and asked to make good on his campaign promise.
Armenians and all those who believe in justice should urge the
establishment of a U.S. commission — similar to the one for Holocaust
victims — to settle all claims of properties and possessions arising
from the Armenian Genocide. Even though this would not be an easy task,
it would at least be the start of a tangible and meaningful process!