Attorney Blogs

Note: These occasional blogs are the personal reflections, publications and commentary from individuals and are not the views of any client, partner or lawyer at O’Donnell Clark and Crew LLP.

Kelly Clark

Title: Strong Jury System Still the Best Guard Against Big Government.
Blog Author: Kelly Clark
Date: February 1, 2009 in Brainstorm NW

“I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.”   -Thomas Jefferson

Big Government. Not since Ronald Reagan was President or Vic Atiyeh was Governor have Oregonians seen a concerted effort to stop the growth of government—and both of those honorable men failed in that task. And in the November elections– whatever else they did—the voters gave the Democrats the reins of government, unchecked even by a Republican chamber in national or state legislative halls. Now, it is no part of my purpose to discuss the political map. 

But one undoubted consequence of the elections is that Big Government will get bigger.  That is the way that Democrats (and, apparently, judging from recent years, Republicans, too) tackle big problems.  So, in an age of Big Government how do we protect our liberties?  There are really only three tools our constitutional structure has for this challenge: representative government—where the people can remonstrate against excesses of public power through their elected representatives; a free press—which, theoretically at least, can shine the light of day on abuse of power by government; and the jury system—through which those on the wrong end of the Big Government stick can seek to hold public agencies accountable.  It is this last, a potent jury system, that I believe needs to be defended, now more than ever.

Even before I became a trial lawyer, as a conservative I believed in the jury system. Then, over the past decades, as a conservative and a trial lawyer, I have seen time and again how large institutions are afraid to have their oppressive conduct proven to a jury. It does not really matter whether the institutions are private—banks, mega-corporations, insurance companies, or public—land use agencies, regulators, electoral bureaucracies.  All these institutions can and regularly do run over our liberties. Ask anyone who has been on the receiving end of Oregon’s land use system, or whose business has been shut down by an overzealous bureaucrat, or whose idea for a ballot measure has been drubbed into the ground because some elections official misused his or her power. All these citizens will tell you that, sometimes, their only hope for accountability and justice is to plow through the legal system to get the matter before a jury.

So I am always baffled when I hear conservatives talk as if the jury system was the invention of some liberal interest group, and needs to be weakened.  Why would we weaken it?  Because sometimes juries get it wrong?  Well, so what?  Is that any reason to take power away from one of the last remaining checks against public power?  If voters “get it wrong” in some election, the solution is not to take power away from the voters– though some liberals and elections officials seem to think so. No, the voters retain for themselves the right to be wrong: it is one of the risks of constitutional government. Or, if some political movement is patently offensive, even dangerous, to our ideals of life, do we pass a law that restricts its members’ ability to speak out? Of course not—at least we didn’t used to, before political incorrectness became a crime—for we believe in free speech, and we believe that in the marketplace of ideas, the true and wise ideas will eventually win out.So why is it any different when it comes to the jury system? I certainly do not argue that juries always get it right; our system cannot guarantee justice—but it does guarantee a chance at justice. And it is the knowledge of that “chance” that acts as a restraint on Big Government.

Some conservatives seem to trust the wisdom of the common man when it comes to self-government: free speech, free elections and the initiative system, but not when it comes to the jury system. On the other hand, many liberals seem to believe the average citizen perfectly capable of deciding even the most important legal case, but then they turn around and don’t trust that same citizen to wield the full power of the initiative, or even the vote—apparently believing that the people really are not smart enough, fair enough or wise enough to govern themselves. They-these conservatives and liberals-are elitists, all.

We must ask ourselves whether we really believe in the ability of free citizens to govern themselves.  If we do, then we need to keep our jury system strong. Make no mistake—Big Brother would love to see it weakened.  Then, not only will He continue to run roughshod over reluctant or captive legislative bodies, and not only can He keep seducing or manipulating our free press, but He will run over us, and the liberties of our families and our businesses as well. Indeed, He can do so with impunity, for He knows He will never have to answer to a jury of free citizens.

Title:The Archdiocese of Portland, Post-Bankruptcy: So Much for the Promises.
Blog Author: Kelly Clark, attorney
Date: August 3, 2008

No one was more hopeful than I, fifteen months ago at the conclusion of the bankruptcy of the Archdiocese of Portland. I believed– and I now see that I WANTED to believe– the promises of Archbishop John Vlazny, of his advisors and his lawyers. Those promises talked of treating victims of sexual abuse by priests with compassion. They offered hope that, in the future, the Archdiocese would be open and forthcoming about the records of past criminal conduct by pedophile priests and the bishops who covered up for them. Archbishop Vlazny himself led a mass of healing and reconciliation, again offering words of sorrow, repentance and new beginnings.

As I say, I believed these words. I stood shoulder to shoulder with the Archbishop and his lawyers, congratulated him on doing the right thing in resolving cases and in making the hard decisions to open the files of the past. See news articles here. I gave presentations and wrote articles on it all. See here. As a person of Christian faith, albeit a very flawed and broken one, I was particularly pleased that we– my clients, other abuse survivors and their lawyers– had held out for a nearly unique commitment and promise from the Archbishop that he would open the files of the past. I believed that this church could not achieve healing and reconciliation for itself, its members and its victims without shedding its old habit of secrecy, and so I was delighted at the promises. I was even proud, thinking that my clients, other abuse survivors, and I and other lawyers had really accomplished something, that we had helped change an institution that had failed to live up to its own best ideals, and certainly to the example and words of its Lord. “A new era of openness” I foolishly called it.

Well, how things change. Now– over a year later– now that the lights of the TV cameras are off, now that the media and the public aren’t watching, now that the Archdiocese does not need the cooperation of plaintiffs or their lawyers to get out of a self made mess of a bankruptcy, now that the plaintiffs bring claims one at a time– instead of dozens and scores at a time, as before– my, my how things have changed.

Compassion for victims? The Archbishop and his lawyers are litigating new cases like any other powerful corporation with a pack of insurance lawyers. He has attempted to force plaintiffs to use their full names in public litigation, breaking the time-honored practice, virtually unanimously agreed upon by all institutions facing child abuse cases (Boy Scouts, the Mormon Church, schools, etc), that recognizes that plaintiffs in these cases are crime victims, are covered with the shame of child abuse, and do not need or deserve to be identified publicly. For news coverage of this incredible move, click here. When confronted publicly about this in court papers and by the news media, the Archbishop and his spokespersons have responded in ways that are, at best, simply disingenuous–claiming that all they were doing was leaving it up to the Court. Well, that just isn’t so. The fact is, courts NEVER raise the issue on their own. It was the Archbishop’s move, and only that, that tried to force survivors to use their names publicly. Fortunately, a humane and common sense federal judge saw through the tactic, and refused to countenance it.

A new era of openness? The Archbishop and his lawyers have fought full disclosure of the files of the pedophile priests tooth and nail, and even as late as July, 2008, were filing papers in bankruptcy court and in federal court to protect the files of such notorious pedophiles as Fr Thomas Laughlin. Even in the process of mediation and arbitration of the issues relating to openness, the Archdiocese sought to secret the entire briefing and arbitration of the agreement to release files. Yes, that’s right– in a proceeding where the sole issue was the Archbishop’s promise to open old files and change old ways, he sought to have the proceeding itself kept secret! And, although the Archdiocese and its lawyers quickly point to the “thousands” of pages of documents they have publicly released, a comparison of that which they have publicly released with that which is actually in the files that they routinely must turn over to plaintiffs in litigation, shows that they continue to be quite selective in what they release. Just one example suffices; concerning Laughlin. In litigation they turn over thousands of pages of documents, because they have to. Yet, as of summer 2008, what they have posted publicly on the internet concerning Laughlin is sparse and selective. Even more staggering, as recently as late July 2008, they filed papers in bankruptcy court ON THE SIDE OF FR LAUGLHIN, as he personally objects to further public release of his files. Once again– as with bishops going back 40 years– a bishop of the Archdiocese of Portland sides with Fr Laughlin against the interests of abuse survivors and against the full truth coming out.

Choosing a new way? In the face of new claims of abuse against some of the same old perpetrators– Laughlin, Grammond, etc– the Archbishop refused offers of pre-litigation mediation time and time again, instead choosing to litigate each case as vigorously and aggressively as possible, ignoring the cruel impact that such a tactic has on abuse survivors, who most of all want and need closure and justice. He even had his lawyers resist early and global mediation suggested by the federal judge overseeing the new litigation, arguing instead for a litigation-heavy approach that undoubtedly was intended to wear down victims with the brutal tactics and unending delays of litigation.

The fact is that, for the Archdiocese of Portland, nothing has changed. In my view, the Archbishop has broken, or stretched to the breaking point, virtually every one of his bankruptcy promises. It is really no different than the bishops before him, and their promises to “handle” problems of abusive priests. After years of litigation, we learned what that meant: it meant nothing. It appears now, as to Archbishop John Vlazny’s promises at the conclusion of the bankruptcy, it still means nothing. No one is more disappointed than I.

 

Gilion Dumas

Justice denied Attorney Blogs

Title: Book Review of Justice Denied – by Marci Hamilton – Cambridge University Press (2008)
Blog Author: Gilion Dumas
Date: January 2, 2009

In Justice Denied, law professor Marci Hamilton makes the case for abolishing statutes of limitations in cases involving childhood sexual abuse. She explains what statutes of limitations are, why they do not make sense in childhood sexual abuse cases, why abolishing them would advance society’s interests in protecting children, what changes need to be made in existing laws, and who is lining up to oppose the reforms she champions.

Statutes of limitations are legislatively created deadlines for filing either a criminal or civil lawsuit. These deadlines vary from state to state, and are different for different types of crimes or civil claims. A typical example of a statute of limitations is that someone injured by a drunk driver may have two years to file a lawsuit and the state may have a similar period in which to bring criminal charges.

Hamilton explains why relatively short limitations periods for crimes or claims arising out of childhood sexual abuse do not work as intended. Many people, maybe most, who are sexually molested as children do not come forward for years or even decades, due to feelings of guilt, denial, and fear and other psychological factors shared by most victims.

The problem is easiest to understand when considering, for example, a statute of limitation that sets a two-year deadline for bringing a civil case that would require a seven-year-old child to file a lawsuit against her abuser before she is nine. It is completely unlikely that a nine-year-old would understand the damage that has been done or have the wherewithal to file a civil lawsuit; and most likely that the child is still living with or otherwise in contact with the abuser.

But similar practical restrictions exist for many now-adult victims of childhood abuse who only realize the connection between their adult problems and earlier abuse when they are much older. For example, a victim may only realize at age 45 that his alcoholism, or anxiety disorder, or other problem is a result of being sexually abused as a child. To bar that person’s lawsuit because he did not file it years earlier is to deny his access to civil justice before he even knew he was injured.

Because most victims of childhood sexual abuse do not come forward for years or even decades, by the time they come forward, the statutes of limitations for both criminal and civil cases has passed. Without the ability to bring criminal charges or a civil lawsuit, the abusers are never identified publicly and are left free to abuse other victims.

Hamilton likens the problem of sex abuse lawsuits to murder cases, for which there is no statute of limitations. The same policy reasons that justify having no limitation on when a murder case can be filed apply in cases of childhood sexual abuse: The damage caused by the crime is serious, the victim is unable to assist in the prosecution, and society has a strong interest in identifying the perpetrators in order to protect other potential victims.

Abolishing the statutes of limitations for childhood sex abuse cases would serve society’s interests primarily by identifying sexual abusers. Recent popular reforms, including sex offender registries, longer criminal sentences, and pedophile-free zones” are worthwhile, but extremely limited in their effectiveness because they only apply to abusers who have been identified through criminal lawsuits. Because of short statutes of limitation, most abusers are never officially identified as sexual offenders by conviction of a crime, and so are not included on registries, do not serve any criminal sentences, and are otherwise untouched by reforms that can only apply to identified perpetrators. Only by abolishing the statutes of limitations will greater numbers of pedophiles be identified and other victims protected.

Hamilton suggests a multi-step process for changing the limitations periods in sex abuse cases. First, she argues for abolishing all statutes of limitations going forward. Second, while Constitutional concerns make it impossible to retroactively impose longer criminal statutes of limitations, she wants all states to enact window” legislation that allows victims of past child sexual abuse a period of time – one or two years or more – to bring civil claims regardless of whether the existing statute of limitations period has already expired. California did this in 2003 and 1,000 victims filed civil lawsuits, resulting in the identification of 300 previously unidentified sex abusers. Finally, Hamilton would reform laws imposing various limitations on lawsuits against public agencies such as schools.

One of the most interesting sections of the book explains the various groups opposing the reforms Hamilton proposes. This is an odd mix of insurance companies, the Catholic church, teachers’ unions, and the American Civil Liberties Union. Hamilton examines the arguments these groups raise in opposition to changing the statute s of limitations and does a good job of explaining how the arguments miss the mark or are shortsighted.

All in all, Hamilton makes a compelling case for abolishing statutes of limitations in child abuse cases. Her arguments are well-researched – 26 pages of notes support 114 pages of text – and persuasive, without bogging down in legal jargon. While aimed at advocates, policy makers, and legislators, anyone interested in promoting meaningful reforms to help children should read Justice Denied.

[1]Some states, including Oregon, have tried to alleviate the problems by enacting statutes of limitations that are tolled until a person reaches the age of majority and/or begin to run from discovery” of an adult injury. For instance, Oregon’s statute, found in Oregon Revised Statutes 12.117, addresses both situations. First, the statute allows a victim who realizes his or her injury when still a minor to bring a claim prior to the person’s 24th birthday. Second, the statute allows a person to bring a claim within three years of discovering an adult injury, stating that a civil lawsuit must be filed not more than three years from the date the injured person discovers or in the exercise of reasonable care should have discovered the injury or the causal connection between the child abuse and the injury.” In this case, “injury” does not mean the abuse itself, but later, adult problems.

Also posted on Gilion’s book blog, Rose City Reader

Kristian Roggendorf

Title: One Strike and You’re Out
Blog Author: Kristian Roggendorf
Date: February 13th, in response to this editorial in The Oregonian 

As the father of a son born deaf, and as a lawyer who represents child sex abuse survivors, I strongly applaud the Oregonian’s editorial of February 13, 2009 regarding former teacher Kimberly Horenstein. Horenstein is an admitted child molester, and should never again be allowed near any child. 

It appalls me that she is still allowed to teach at all; she belongs in prison.  The bond created between a special needs child and their educators is even greater than the trust relationship between the ordinary student and teacher; breaching that trust almost invariably results in psychological devastation.  Also, in these types of cases, the civil justice system often fails; as a teacher, Horenstein can hide behind the laws that foreclose suits against government employees.  Allowing her to teach again simply rewards her evil and damaging behavior.

No child should ever knowingly be placed at risk of this type of harm

What’s more, the loss suffered by her victims can likely never be compensated. Children who have been sexually abused by teachers face virtually insurmountable obstacles to any recovery whatsoever.  Because teachers are most often government employees, they are immune from civil suit under the Oregon Tort Claims Act, and the window for suing even the school district is only 2 years from the date of the abuse.  The law refuses to take into account the reflexive inability of child abuse victims to come forward, if at all, until decades after the abuse.

Indeed, while money is a poor substitute for justice, unless we bring back public corporal punishment of offenders, and extend the criminal statute of limitations for child sex abuse crimes indefinitely (something that cannot be done for past actions for constitutional reasons), then money damages are all we have.  When a teacher molests a student, the victims most often cannot even obtain civil justice in the form of such a money judgment.  And when the teacher is again allowed to teach on her own —here only years after the abuse was disclosed—then we do not have any semblance of justice whatsoever. 

As Oregonians well know, this is not the first time that a sexually abusive teacher has been offered the chance to ruin another child’s life.  Throughout the Oregon school system, teachers who have abused students have been reassigned without any notice or warning.  These teachers often have continued their abuse for decades, exploiting the system.  The denial by school administrators, their minimization of the problem, and the secrecy surrounding abuse by teachers have left a broad and deep swath of damaged children in their wake. 

When these children grow up and find the courage to face these demons and tell their stories, the court system routinely rejects their claims as coming too late.  The mass of victims of abuse by teachers and other government employees have been twice silenced—first by shame and the fear of their attackers, and then again by a system that allows them no recovery whatsoever.  The loss of a teaching license pales in comparison to this devastation. 

Ms. Horenstein should never be given the opportunity to ruin another child’s life.

Kristian Roggendorf
Lake Oswego