27 08 2009 - Armenian-American Lawyers and Leaders Should Counter Ruling of Appeals Court‏

By Harut Sassounian, Publisher, The California Courier, 27 August 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.

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 $20 million dollars. A second class action lawsuit was filed against Axa, a French life insurance company. It was settled for $17.5 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 http://www.anca.org/genocide_resource/states_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!

A.Melikian