IN THE SUPREME COURT OF OH1O CASE NO

IN THE SUPREME COURT OF OH1O CASE NO. 06-2164 JOHN DOE, et al. and ON APPEAL FROM THE CUYAHOGA COUNTY COURT OF APPEALS EIGHTH APPELLATE DISTRICT MARY MOE, et al. V. Pl aintiffs-appel l ants CATHOLIC DIOCESE OF CLEVELAND, et al. COURT OF APPEALS CONSOLIDATED CASE NOS. 86419 & 86459 Defendants-Appellees RESPONSE OF DEFENDANTS-APPELLEES, CATHOLIC DIOCESE OF CLEVELAND, ST. PATRICK'S CHURCH AND PARMADALE, TO MEMORANDUM IN SUPPORT OF JURISDICTION OF PLAINTIFFS-APPELLANTS Howard A. Schulman (0003115) SCHULMAN, SCHULMAN & MEROS 1370 Ontario Street 1700 Standard Building Cleveland, OH 44113-1727 Email: ssm@apk.net Ph: (216) 621-0580 Fx: (216) 621-5428 Counselfor Plaintiffs-Appellants DEC 2 Q Z006 MARCIA J. PIPE,t1GEL, CLERK i SUPREfJiE COURT OF OHIO Robert P. Ducatman (0003571) JONES DAY 901 Lakeside Avenue North Point Cleveland, OH 44114-1190 Email: rducatman@jonesday.com Ph: (216) 586-3939 Fx: (216) 579-0212 Counselfor Defendant-Appellee Catholic Diocese of Cleveland Beth A. Sebaugh (0008518) BONEZZI, SWITZER, MURPHY & POLITO CO., L.P.A. 526 Superior Avenue, Suite 1400 Cleveland, OH 44114-1491 Email: bsebaugh@bsmplaw.com Ph: (216) 875-2767 Fx: (216) 875-1570 Counselfor Defendants-Appellees St. Patrick's Church and Parmadale

TABLE OF CONTENTS Page EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION... 1 STATEMENT OF THE CASE AND FACTS... 7 ARGUMENT IN OPPOSITION TO APPELLANTS' PROPOSITIONS OF LAW.... 8 Appellants' Proposition of Law No. 1: It is a violation of Section 16, Article I of the Ohio Constitution to require a plaintiff to bring a sexual abuse action against a religious institution before the plaintiff s twentieth birthday, if the plaintiff does not have knowledge of the particular operative facts required for such an action under Byrd v. Faber (1991), 57 Ohio St.3d 56. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, modified and clarified....;... 8 Appellants' Proposition of Law No. 2: It is a violation of Section 2, Article I of the Ohio Constitution to require a plaintiff to bring a sexual abuse action against a religious institution before the plaintiffs twentieth birthday, if the plaintiff does not have knowledge of the particular operative facts required for such an action under Byrd v. Faber (1991), 57 Ohio St.3d 56. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, modifed and clarif:ed... 8 A. The Combination of Doe v. Archdiocese of Cincinnati and Byrd v. Faber Does Not Prohibit A Remedy For A Victim Of Clergy Sexual Abuse... 8 B. The Interrelationship of Doe v. Archdiocese of Cincinnati and Byrd v. Faber Does Not Impose Any Penalties Either Upon Victims Of Sexual Abuse Or Upon Their Attorneys...:... 9

C. The Interrelationship of Doe v. Archdiocese of Cincinnati and Byrd v. Faber Neither Gives Religious Institutions Immunity From Suit, Nor Does It Encourage Them To Conceal The Abusive Behavior Of Their Clergy...:...:.. 10 The Interrelationship of Doe v. Archdiocese of Cincinnati and Byrd v. Faber Does Not Violate The Ohio Constitution...:...:... 1 I CONCLUSION... 13 CERTIFICATE OF SERVICE...:... 14

EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL OUESTION This case is not one of public or general interest. Nor does it involve a substantial constitutional question. In May of 2006, in a case in which the allegations were virtually identical to those advanced in these two consolidated cases, tliis Court held that the plaintiffs claims were time-barred. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio- 2625. Indeed, in all relevant respects, these cases are indistinguishable from the Archdiocese case. These Appellants, like the plaintiff in the Archdiocese case, knew they were abused, knew the identity of the abuser, knew the conduct was wrongful, and knew a relationship existed between the alleged abuser and Appellees, Catholic Diocese of Cleveland, Parmadale and St. Patrick Church ("Appellees"). Also like the plaintiff in the Archdiocese case, these Appellants neither alleged, nor argued, that they took any action whatsoever after each reached the age of majority to determine if he or she had any claim against Appellees. Hence, there is no reasoned basis for distinguishing these cases from the Archdiocese case. In an attempt to side-step this Court's recent decision, Appellants assert that they are raising a"constitutional question that was not argued in Doe v. First United Methodist Church (1994), 68 Ohio St.3d 531, 1994-Ohio-531 or Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625." (Appellants' Mem. at 1). Despite Appellants' protestations to the contrary, however, this Court did consider the same constitutional questions in First United. Moreover, the plaintiff in the Archdiocese case raised each and every one of the arguments that Appellants raise here. Indeed, some of the language is identical. A comparison of the arguments reveals this striking similarity: 1

ARGUMENTS IN DOE Y. ARCHDIOCESE "This is a real, not a theoretical concern. One of the grounds for Appellants' motion to dismiss in this case and in many other similar lawsuits was their assertion that the plaintiff had not pleaded the specific facts of defendants' negligence required by Byrd. The rule proposed by Appellants places a victim of clergy abuse into a classic `Catch-22' situation. It requires the victim to file. a claim against a religious institution by age 20, regardless of whether or not the victim has any knowledge that the religious institution was negligent. However, if the victim files the lawsuit prior to his twentieth birthday, the lawsuit will incur certain dismissal under Byrd, because the victim cannot allege the specific facts required by Byrd. In essence, the rule proposed by Appellants requires victims of clergy sexual abuse to file a lawsuit before they can assert the allegations required for such a claim and closes the courthouse to childhood victims of clergy sexual abuse." (Appellees' Br. in Doe v. Archdiocese of Cincinnati, 2005 WL 2979583, at *23). "The rule proposed by Appellants has additional, unintended consequences for the victim of clergy sexual abuse who has the temerity to come forward and attempt to assert a claim against a religious institution. Without any knowledge of specific facts that would support a claim of negligence against the religious institution, as required by Byrd, the victim would not have a claim that he could assert in a lawsuit against the religious institution. The victim's attorney would not have `good ground to support' any complaint ARGUMENTS IN APPELLANTS' MEMORANDUM IN SUPPORT OF JURISDICTION "This is a real, not a theoretical concern. One of the grounds for the motion to dismiss of the defendants in the Jane B. Doe action (and in many other similar lawsuits) was their assertion that the plaintiff had not pleaded the specific facts of defendants' negligence required by Byrd v. Faber.1 A victim of clergy abuse is in a classic `Catch-22' situation. Doe v. Archdiocese of Cincinnati requires the victim to file a claim against a religious institution by age 20, regardless of whether or not the victim has any knowledge that the religious institution was negligent. However, if the victim files the lawsuit prior to her twentieth birthday, the lawsuit will incur certain dismissal under Byrd v. Faber, because the victim cannot allege the specific facts required by Byrd v. Faber. In essence, Doe v. Archdiocese of Cincinnati requires victims of clergy sexual abuse to file a lawsuit before they can assert the allegations required for. such a claim. That opinion closes the courthouse to childhood victims of clergy sexual abuse" (Appellants' Mem. at 7-8). "The interrelationship of Doe v. Archdiocese of Cincinnati and Byrd v. Faber has additional, unintended consequences for the victim of clergy sexual abuse who has the temerity to come forward and attempt to assert a claim against a religious institution. Without any knowledge of specific facts that would support a claim of negligence against the religious institution, as required by Byrd v. Faber, the victim would not have a claim that she could assert in a lawsuit against the religious institution. The victim's attorney would not 1 Appellants' reference to Jane B. Doe apparently is in error. Jane B. Doe was decided by the Eighth District Court of Ap peals in 2004. Jane B. Doe v. Catholic Diocese of Cleveland, 158 Ohio App.3d 49, 2004-Ohio-3470, appeal not allowed, 104 Ohio St.3d 1441, 2004-Ohio- 7033. Jane B. Doe also raised the same Byrd arguments as Appellants raise here. 2

"It is irrational to think that clergy abuse victims prior to May 2002 could have conducted a pre-litigation investigation that would have produced any information or any evidence against Appellants * * * The plaintiff in this action, and the plaintiffs in every other case against Appellants, had absolutely no way to obtain information that Appellants conunitted wrongdoing in concealing previous abuse and failing to prevent further abuse. Appellants would have denied any such knowledge, thereby completing prohibiting the plaintiffs from filing any lawsuit, because the plaintiffs could not satisfy the requirements of Byrd." (Appellees' Br. in Doe v. Archdiocese of Cincinnati, 2005 WL 2979583, at *24-25). "The combination of Byrd and the denial of equitable estoppel or the discovery rule leaves a victim of clergy sexual abuse with only one altemative - to file a lawsuit, before his twentieth birthday, that will certainly be dismissed under Byrd and that may subject both him and his attomey to sanctions or penalties. The religious institution that caused his injuries is granted a court-created immunity from suit as long as it is successful in concealing its wrongdoing until after the "It is unrealistic to think that any victim could conduct a pre-litigation investigation that would produce any information or any evidence. * * * The plaintiffs in this appeal, and the plaintiffs in every other action against the Diocese, had absolutely no way to obtain information that the Diocese or any of the other defendants knew the perpetrator was a tlueat to any of them. The defendants would have denied any such knowledge, thereby completely prohibiting the plaintiffs from filing any lawsuit, because the plaintiffs could not satisfy the requirements of Byrd v. Faber." (Appellants' Mem. at 9-10). "Given the holding of Byrd v. Faber, and the specific allegations of negligence that Byrd v. Faber requires, Doe v. Archdiocese of Cincinnati leaves a victim of clergy sexual abuse with only one alternative - to file a lawsuit, before his or her twentieth birthday, that will certainly be dismissed under Byrd v. Faber and that may subject both him or her and any attorneys to sanctions or penalties. The religious institution that caused his or her injuries is granted a court-created immunity

ARGUMENTS IN DOE V. ARCHDIOCESE victim's twentieth birthday. This combination rewards religious institutions which are successful in concealing their misconduct and it punishes their victims. It gives religious institutions the incentive to continue the concealment that has caused the present crisis the Catholic Church is experiencing. This Court has recognized the importance of the discovery rule to prevent this kind of concealment: `By applying the discovery rule as we do, we take away the advantage of employers who conceal harmful information until it is too late for their employees to use it.' Norgard, supra, 95 Ohio St.3d at 19." (Appellees' Br. in Doe v. Archdiocese of Cincinnati, 2005 WL 2979583, at *25). ARGUMENTS IN APPELLANTS' MEMORANDUM IN SUPPORT OF JURISDICTION `Finally, the combination establishes two classifications of victims of childhood sexual abuse: (1) those who were abused by someone other than a clergyman, and (2) those who were abused by clergy. A victim of childhood sexual abuse by someone who was not a clergyman could sue the employer of the perpetrator, assert boilerplate allegations of negligence of the employer, conduct discovery, find out whether there are facts that would support those boilerplate allegations, and prosecute a lawsuit if the discovered facts support such allegations. On the other hand, the childhood victim of clergy sexual abuse would be denied that opportunity." (Appellees' Br. in Doe v. Archdiocese of Cincinnati, 2005 WL 2979583, at 25-26). case. Thus, this Court did consider each of Appellants' arguments in deciding the Archdiocese 4

Moreover, as a substantive matter, Appellants' arguments fail. First, Appellants misread this Court's decision in the Archdiocese case. That case held that the alleged victim was on inquiry notice of the possibility of negligence by the church defendants because he knew the identity of the alleged abuser, knew that he had been abused and knew that there was a relationship between the priest and the defendants. Doe v. Archdiocese, 2006-Ohio-2625, at 20, 30. That information was held sufficient to commence the running of the statute of limitations. See id. The plaintiff, however, like the Appellants here, took no action to pursue any claim he might have had once he reached the age of majority. It was that inaction that barred the plaintiff's claims. Furthermore, neither the allegations in the Doe case, nor the testimony in the Moe case, provides support for Appellants' Byrd arguments. Thus, while Appellants parade a series of "what-if' scenarios before this Court, their arguments are merely an after-the-fact attempt to jusfify their admitted failure to take any action to determine if each had a claim against Appellees. The existence of the Byrd decision, however, had nothing whatsoever to do with Appellants' inaction. Rather, they insisted below that they were free to do nothing until they learned, on a serendipitous basis in the spring of 2002, of the alleged abuse of others by the priest who allegedly abused each of them. (See Appellants' Mem. at 4-5). Even now Appellants do not provide any link between the Byrd arguments they raise and the allegations in the complaint (in the case of the Doe Appellants) or their deposition testimony (in the case of the Moe Appellants). Not one of the Appellants argues, nor can he or she, that the Byrd decision had any bearing on his or her decision to take no action after each reached the age of majority.

None of them argues, nor can he or she, that the Byrd decision prevented him or her from investigating any claim each might have had in a timely manner. (See Appellants' Mem. at 6-8). None of them argues, nor can he or she, that the Byrd decision exposed him or her, or their attorney, to potential sanctions. (See Appellants' Mem. at 9-10). They cannot do so because sanctions are appropriate only if a reasonable inquiry "should reveal the inadequacy of a claim..." Ron Scheiderer & Assocs. v. London (1998), 81 Ohio St.3d 94, 97-98, 689 N.E.2d 552. Appellants here, of course, undertook no inquiry during the statutory period. Appellants were not deterred from bringing a lawsuit because of his or her concems, or the concerns of an attomey, regarding sanctions. None of them argues, nor can he or she, that his or her constitutional rights were violated because of the Byrd decision. (See Appellants' Mem. at 11-13). Rather, Appellants' constitutional arguments turn on a series of assumptions that have no connection to any of them. They argue, for example, that if a victim filed a lawsuit within the two-year statutory period, it "would be subject to certain dismissal under Byrd v. Faber." (Appellants' Mem. at 12). Appellants' argument presupposes that if they had undertaken an inquiry (which they did not), they would not have garnered facts sufficient to state a claim. But that is not this case. Appellants did not make any inquiry. They did not even try to go through the courthouse doors. It was their inaction that closed the courthouse doors. That inaction, however, does not render the statute of limitations unconstitutional as applied to Appellants. To the contrary, as with the plaintiff in First United, "nothing prohibited appellant[s] from asserting [their] claims within the period provided by the applicable statutes of limitations, thereby preserving the constitutional rights in question." First United, 68 Ohio St.3d at 541 n.7. 6

Furthermore, even if Appellants could somehow link Byrd to the allegations in each of their cases, stripped of its rhetoric, Appellants' contention that the heightened pleading standard adopted in Byrd mandates an indefinite suspension of the statute of limitations would read a plaintiffs duty to investigate out of the statute. After all, if the statute does not start to run until a plaintiff declares he or she has actual knowledge of a legal claim, what possible purpose does the two-year period serve? Not surprisingly, Appellants cite no authority - and Appellees are aware of none - to support their theory that they had no duty to investigate. Finally, while Appellants imply that there is an issue of concealment in these cases (see Appellants' Mem. at 10-11), there is not. Appellants did not allege, nor did they argue in the Court of Appeals, that any alleged concealment by Appellees provided a basis for tolling the statute of limitations. This Court has considered and rejected the arguments raised by Appellants. The decision does not warrant further review: STATEMENT OF THE CASE AND FACTS 1. John Doe, et al v. Catlzolic Diocese of Cleveland, et al. Appellees agree with Appellants' statements regarding the procedural posture of the case. They would add that Appellants alleged that they knew they were abused, knew the identity of the alleged abuser, and knew that there was a relationship between the alleged abuser and the defendants. They also alleged, just like the plaintiff in the Archdiocese case, that the statute of limitations did not begin to run until they had actual knowledge that others supposedly had been abused which, according to the Complaint, was the event under Browning v. Burt (1993), 66 Ohio St.3d 544, that first alerted plaintiffs that they had a cause of action against defendants.

H. Mary Moe, et al. v. Catholic Diocese of Cleveland, et al. Appellees also agree with Appellants' statements regarding the procedural posture of the case. They would add that Appellants testified that they knew they were abused, knew the identity of the alleged abuser, and knew that there was a relationship between.the alleged abuser and the defendants. They, like the Doe Appellants and the Archdiocese plaintiff, also alleged that the statute of limitations did not begin to run until they had actual knowledge that others supposedly had been abused which, according to the Complaint, was the event under Browning v. Burt (1993), 66 Ohio St.3d 544, that first alerted plaintiffs that they had a cause of action against defendants. ARGUMENT IN OPPOSITION TO APPELLANTS' PROPOSITIONS OF LAW Appellants' Proposition of Law No. 1: It is a violation of Section 16, Article I of the Ohio Constitution to require a plaintiff to bring a sexual abuse action against a religious institution before the plaintiffs twentieth birthday, if the plaintiff does not have knowledge of the particular operative facts required for such an action under Byrd v. Faber (1991), 57 Ohio St.3d 56. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, modified and clarified. Appellants' Proposition of Law No. 2: It is a violation of Section 2, Article I of the Ohio Constitution to require a plaintiff to bring a sexual abuse action against a religious institution before the plaintiffs twentieth birthday, if the plaintiff does not have knowledge of the particular operative facts required for such an action under Byrd v. Faber (1991), 57 Ohio St.3d 56. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, modified and clarified. A. The Combination of Doe Y. Archdiocese of Cincinnati and Byrd v.faber Does Not Prohibit A Remedy For A Victim Of Clergy Sexual Abuse. Appellants argue that the interrelationship of Doe v. Archdiocese of Cincinnati and Byrd v. Faber prohibits any remedy for a victim of clergy sexual abuse because, if the alleged victim 8

had tried to pursue a claim prior to the spring of 2002 - which they themselves admit they did not - it could have been dismissed based on their failure to gamer facts to support a lawsuit. (See Appellants' Mem. at 6-8). These Appellants, however, never even tried. Rather, from the time each reached the age of majority until the statute of limitations expired, not one of them lifted a finger to inquire into, much less to pursue, any claim they might have had against Appellees. Appellants' own failure to talce any action whatsoever most assuredly does not mean that the combination of the Archdiocese and Byrd decisions would prohibit any remedy for a victim of clergy sexual abuse. What it does mean - and all that it means - is that a plaintiff who knows he or she was abt sed and knows the identity of the alleged abuser has two years from the day he or she reaches the age of majority to determine whether he or she has a claim and if so, against whom. Appellants here made no move at all in that regard. And they neither allege, nor argue, that they did. Nor, as Appellants argue, does the combination of the Archdiocese and Byrd decisions close the courthouse.to childhood victims of clergy sexual abuse. (Appellants' Mem. at 8). The doors were open to Appellants from the time of the alleged abuse until each turned 20 years old.z They remain wide open for those who have not yet reached that age. Furthermore, Byrd is a pleading standard case - not a statute of limitations case. Under Byrd, plaintiffs were required to plead operative facts. Under First United and Doe v. Archdiocese of Cincinnati, they had two years to determine if there were such facts. They did not do so. They did not even try. And because they did not, their claims are barred. 2 Moreover, Appellants ignore that there are a number of ways to determine if operative facts exist or do not. For example, R.C. 2317.48 provides that a person may undertake discovery to determine if a fact necessary to a cause ot action exists. Thus, the statement by Appellants' counsel that he "cannot recall a single one of those victims who, prior to his or her twentieth birthday, had anknowledge of the specific facts required by Byrd v. Faber" (Appellants' Mem. at 8 n.3)y, misses the point. The question is whether any of those persons made any inquiry in an attempt to ascertain the facts. These Appellants did not.

B. The Interrelationshiu of Doe v. Archdiocese of Cincinnati and Byrd v Faber Does Not Impose Any Penalties Either Upon Victims Of Sexual Abuse Or Upon Their Attorneys. Nor, as Appellants argue, does the interrelationship of Doe v. Archdiocese of Cincinnati and Byrd v. Faber subject plaintiffs and their attorneys to sanctions. Indeed, alleged victims of clergy sexual abuse and their attorneys are at no more risk of being subjected to sanctions than is any person or attorney when filing a complaint. The attorney must undertake a reasonable inquiry. But only if that inquiry "should reveal the inadequacy of a claim," are sanctions appropriate. Ron Scheiderer & Assoc. v. London (1998), 81 Ohio St.3d 94, 97-98. See also Moore v. City of Cleveland, 8th Dist. App. No. 83070, 2004-Ohio-360, at 16 (sanctions unwarranted under R.C. 2323.51 and Civ. R. 11 when counsel undertook reasonable inquiry even though defendant was not liable to plaintiff as a matter of law). Only if (1) a reasonable inquiry by plaintiffs' counsel should have revealed the inadequacy of a claim and (2) there is no "good faith argument for an extension, modification, or reversal of existing law" need counsel, or their clients, be concerned. DR7-102(A)(2); R.C. 2323.51. Here, of course, Appellants can only speculate as to what any inquiry may have revealed. This is so because none was undertaken. That, however, provides no basis for Appellants to argue that attorneys and/or clients who do undertake a reasonable investigation and proceeds based on that investigation would be subject to penalties. They would not. C. The Interrelationship of Doe v. Archdiocese of Cincinnati and Bvrd v. Faber Neither Gives Religious Institutions Immunity From Suit, Nor Does It Encourage Them To Conceal The Abusive Behavior OFTheir ClerQV. This. Court's decision in the Archdiocese case applies. Ohio statutory law which establishes the two-year limitations period and prior precedent of this. Court regarding the discovery rule in childhood sexual abuse cases. That is all it does. 10

The decision does not give religious institutions immunity. They can be sued if a plaintiff takes action within the statutory period. Appellants here simply did not. Nor does the decision encourage religious institutions to conceal sexual abuse by clergy. This is so for two reasons. First, Appellants knew they were abused and they knew the identity of the alleged abuser. Concealment would work only when a putative claimant has no information at all regarding the alleged wrongdoing. That is not this case. Second, what Appellants are advocating is no statute of limitations whatsoever. Under their theory, it would not matter if everyone in the world, except plaintiffs, had knowledge of allegations of sexual abuse against a particular priest. Indeed, according to Appellants, there is absolutely nothing that defendants could ever do to start the statute running. Public announcements would not start the statute running. Media reports would not start the statute running. Only a plaintiff could say when he or she had actual, subjective awareness. Such a theory has nothing whatsoever to do with encouraging concealment of alleged abuse by clergy because, under Appellants' regime, openness does not matter. Rather, Appellants want absolute control as to when to commence a lawsuit. There would be no limit on how long the tiine period could be drawn out. It is not, therefore, this Court's decision that creates a problem. It is Appellants' proposed regime - a regime under which there would never be a fair, objective limit on the timing of lawsuits. D. The Interrelationship of Doe v. Archdiocese ofcincinna6and Byrd v. Faber Does Not Violate The Ohio Constitution. Appellants' constitutional arguments - like their other arguments - likewise fail. First, in First United, the plaintiff raised the same constitutional arguments that Appellants raise here. The First United plaintiff argued that he was: denied his constitutional right to a remedy and an open court as provided in Article I, Section 16 of the Ohio Constitution where, based on the running of the I1

applicable statute of limitations, the trial court prejudicially granted summary relief in favor of all defendants-appellees where... appellant filed suit within two years of discovering that he had been injured as a result of the tortious conduct of all the defendants-appellees. denied equal protection of the law as guaranteed under both the Ohio Constitution and the Fourteenth Amendment to the United States Constitution by the trial court's granting of summary relief... when based upon the running of the applicable statute of limitations where the plaintiff-appellant commenced suit within two years of discovering that he had been injured as a result of the tortious conduct of all the defendants-appellees. deprived of his right to Due Process of Law under both the Ohio Constitution.and the Fourteenth Amendment of the United States Constitution by the trial court's granting of summary relief... when based upon the running of the applicable statute of limitations where the plaintiff-appellant commenced suit within two years of discovering that he had been injured as a result of the tortious conduct of all the defendants-appellees. Doe v. First United Methodist Church (Ohio App. 9 Dist. Oct. 7, 1992), App. Nos. 91CA005260, 92CA005318, 1992 WL 281323, at *3.. This Court held that applying the statute of limitations to the plaintiffs claims did not violate any constitutional provision: Appellant has raised a number of constitutional issues in support of his argument that the discovery rtile should be applied to toll the statute of limitations until appellant discovered the extent of his injuries and the causal connection between those injuries and the alleged sexual abuse. However, appellant failed to raise these issues at the trial court level and, thus, the court of appeals refused to consider appellant's arguments. We find no abuse of discretion in this regard. Moreover, nothing prohibited appellant from asserting his claims within the period provided by the applicable statutes of limitations, thereby preserving the constitutional rights in question.3 First United, 68 Ohio St.3d at 541 n.7. (Emphasis added). Therefore, the question of the constitutionality of the statute of limitations in sexual abuse cases has been definitively put to the test by this Court. 3 The assignments of error were not set forth in the Court's decision. However, the Court indicated that they were the same su pposed constitutional errors that had been raised by the appellant in the Court of Appeals. First United, 68 Ohio St. 3d at 541 n:7.. 12

Second, Appellants' constitutional argument is purely hypothetical. It is grounded on the premise that any lawsuit that plaintiffs might have brought within the statutory period would have been dismissed under Byrd v. Faber. (See Appellants' Mem. at 11-13). That is pure speculation. Appellants simply cannot say what the result would have been if they had timely pursued their claims. CONCLUSION For the foregoing reasons, this Court should decline jurisdiction. Dated: December 20, 2006 7c& o4s-,^ /-9.P.p. Beth A. Sebaugh (0008518) BONEZZI, SWITZER, MURPHY & POLITO CO., L.P.A. 526 Superior Avenue, Suite 1400 Cleveland, OH 44114-1491 bsebaugh2bsmplaw.com Ph: (216) 875-2767 Fx: (216) 875-1570 Counsel for Defendants-Appellees St. Patrick's Church & Parmadale Respectfully submitted, Robert P. Ducatman (0003571) JONES DAY 901 Lakeside Avenue North Point Cleveland, OH 441 14-1 1 90 rducatmanqjonesday.com Ph: (216) 586-3939 Fx: (216) 579-0212 Counsel for Defendant-Appellee Catholic Diocese of Cleveland 13

CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing Response of Defendants- Appellees, Catholic Diocese of Cleveland, St. Patrick's Church and Parmadale, to Memorandum in Support of Jurisdiction of Plaintiffs-Appellants was sent by ordinary U.S. mail, postage prepaid, on this 20th day of December, 2006 to: Howard A. Schulman Schulman, Schulman & Meros 1370 Ontario Street, Suite 1700 Cleveland, OH 441 1 3-1 727 Counsel for Plaintiffs-Appellants ^ ^-^ Counsel for Defendant-Appellee Catholic Diocese of Cleveland 14