Lawyers, Leaders Should Counter Appeals Court Ruling on Genocide Claims

0825haroutThe 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 $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!

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8 Comments

  1. Manooshag said:

    Mr. Sassounian, I have been encouraged by your efforts and your writings to date. Yet today, I take exception to the one sentence you wrote: “It is now clear that the repeated and foiled 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.”

    To my way of thinking, the Ottoman Turks, and all their subsequent leaderships
    thought we Armenians, the world over would become extinct. Then the Turks
    shall have succeeded. Yet, I can remember all our survivors, my elders, who
    would come together to create our churches, our schools, and more and today
    we are not extinct. In fact, the ARF, the ANCA had been leaders in pursuit
    of a free Armenia, have been educating our youth of our Armenian history, offering our youth access in so many ways to secure the recognition of the Turkish Genocide of the Armenian nation… for years. The progress, the determination today of the third and even the fourth generations of our Armenian youth the world over has been built upon the shoulders of those elders, and, those who followed them into today.

    Today, I even believe that President Barack Obama, morally, shall come to the fore and will recognize the Turkish Genocide of the Armenian nation, as he said he had his own personal conception of the issue – perhaps even before our next April 24th Genocide observance…

    I believe many facets of our Armenian diaspora, leaders, volunteers, the youth have been, as President Theodore Roosevelt expressed so well in his IN THE ARENA. To delete, defile these years of efforts and, having advanced thus far in our efforts, into today, shall not be negated! This I believe…
    Manooshag

  2. Harut Sassounian said:

    Dear Manooshag,

    I appreciate very much your reading of my columns. I think you may have misread the one sentence you allude to in the above article. The key words in that sentence are: “repeated” and “previously adopted.”

    I have nothing but gratitude for the persistent efforts that the ARF, ANCA and others have exerted over the years for the recognition of the Armenian Genocide. I have brought my own modest contribution to that worthy effort.

    However, my point is that these wonderful efforts have already served their purpose and the Armenian Genocide is now recognized worldwide. Even the United States has recognized the Armenian Genocide since the House of Representatives adopted two resolutions reaffirming it in1975 and 1984, and Pres. Reagan signed a Presidential Proclamation in 1981 reaffirming the Armenian Genocide. In fact, the U.S. record on the recognition of the Armenian Genocide is far more extensive than many other countries that we classify as having recognized the Genocide.

    Therefore, what is the point of passing a similar resolution for the third time? And if the resolution passes for the third time this year, are we going to bring it up again for the fourth time next year? Are we going to continue passing resolutions year after year ad infinitum?!!

    The purpose of Hye Tad is not to prove that there was a Genocide. We have already accomplished that and now have to pursue the true goals of Hye Tad which is the recovery of everything we have lost as a consequence of the Genocide, in terms of our lands and possessions. We need to devote our efforts to filing lawsuits in various national and international courts against Turkey. This should be our main occupation nowadays.

    With much respect,

    Harut Sassounian

  3. Haro said:

    I understand Manooshag’s concerns (as every Armenian must understand), but to clarify: what I understand from Mr. Sassounian’s article is not to put aside the effort of Genocide Recognition but to further its rightful demands. Instead of demanding recognition from the USA government, we must channel the demand through the USA government onto the government of Turkey.
    My strong believe is that the current Armenian organizations that are pursuing the Genocide Recognition are politically outdated. Their political framework is still based on the USA-Soviet Cold War era during which there was no independent Republic of Armenia. In other words, we were stateless diaspora.
    It is time that we review all our political frameworks. We should not only pursue the Genocide Recognition to the minimal level of asking a US president to pronounce the word “G”. We should put our framework demands at the civilian law level demanding financial retributions and get back to the demands of Treaty of Sevres based on President Woodrow Wilson plan, and this at the least.

  4. Vartanush said:

    I think we should stop voting useless democrats to power who promise and don do squad., and star voting republicans in the offices, At lest they stand by their words. By the way I voted for Obama and I wont do it next time.

  5. Stepan Sargsyan said:

    Dear Vartanush,

    The very Republican George Bush too promised to recognize the AG and forgot about it once in office. Politicans are the same in all parties, be it Rep or Dem. So let us not inject partisanship among Armenains and engage in self-delusion thinking that one is better than the other. For eight years we were struggling with a Republican administration, which was in bed with Turkish lobbyists and sympathizers.

    Harut Sassounian is right. Enough of wasting valuable time and financial and other resources in reiterating what has already been said many times. AG is widely recognized by those very politicians who object to a federal procalamation on AG. Let’s concentrate our efforts on achieving more tangible results. This concluding paragraph sums it all up:

    “The purpose of Hye Tad is not to prove that there was a Genocide. We have already accomplished that and now have to pursue the true goals of Hye Tad which is the recovery of everything we have lost as a consequence of the Genocide, in terms of our lands and possessions. We need to devote our efforts to filing lawsuits in various national and international courts against Turkey. This should be our main occupation nowadays.”

  6. SONA said:

    I agree with Mr.Sassounian, but I think the main purpose of the Armenian Diaspora should be making the Republic of Armenia POWERFUL country!!!

  7. manooshag said:

    Hye, I believe, as a proud citizen of the United States of America,
    what disturbs me is that our nation, most morally powerful the world has known, the United States of America, in its leadership today, shall not be ‘on board’ – is unable to speak up for recognition of Ottoman Turks Genocide of the Armenian nation – and all subsequent Turks’ denials of any Genocide Imagine! Proof exists in the Archives in Washington DC. Morally – unable to say GENOCIDE as it applies to the Armenians. I had hoped, that in my lifetime, our nation would be a leader amongst the nations who stopped the cycle of all Genocides… Not politically, but morally -halt the terrorizing, slaughtering, rapes, kidnappings, and more – proofs of mans inhumanity to man – as the Turk had done to my grandparents’ families. Manooshag

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