Justice for Abuse Survivor Part II: The Statute Means What it Says

Oregon Court of Appeals holds that the legislature does not need to use “magic words” to make a statute of limitations apply to formerly time-barred claims.

Doe v. Silverman, 287 Or. App. 247 (2017)

In my earlier post, I described a case in which Roggendorf Law LLC assisted some Southern Oregon colleagues on appeal in an abuse case arising out of a psychologist, Arthur Silverman, molesting one of Silverman’s son’s young friends.

At the trial court, the case against the wife was dismissed (since reversed—Doe v. Sliverman (and Dixon), 286 Ore. App. 813  (2017)), and the case against the abuser was dismissed separately, on timeliness grounds.  The trial court said that because the claim against Silverman had at one point been barred by the statute of limitations, the Legislature could not “revive” that claim without specifically saying so in a later amendment to the child abuse statute of limitations.

To explain, a statute of limitations requires a lawsuit be brought within a certain time of the event happening, the identity of the perpetrator becoming known, or the discovery that certain conduct caused harm.  In the case of child abuse, Oregon allows an abuse victim until age 40 to bring suit, or 5 years from discovery of a connection between the abuse and some later, separate injury (remembering the abuse is not enough), whichever period is longer.  ORS 12.117.    These limits were put in place in 2009 with the help of my former firm and myself.  The prior limits were age 24 or 3 years from discovery of the connection between the abuse and some later consequence, such as addiction, or relationship problems.

The argument in Doe v. Silverman was that the 2009 amendments did not apply because the victim was over 24 before 2009, so his claim had “expired.”  The problem (and the reason I’m using quotes around “revive” and “expired”) is that a common law claim like battery and negligence cannot “expire.”  The statute of limitations is just a procedural defense—something that a defendant has to ask for, or he loses it—so the legislature doesn’t need to expressly “revive” old claims.

In 2009, the Oregon Legislature was clear that it meant for the statute to “apply to all causes of action, whether arising before, on or after the effective date of this 2009 Act” (emphasis added).  All means all.  Because our client’s common law claims could not “expire” they did not need to be “revived.”

A plain reading of a clear statute.  The Court of Appeals got it right.

Justice for Abuse Survivor: Wife of an abuser can’t bury her head in the sand.

Oregon Court of Appeals holds that wife’s chilly reaction to victim after evidence of possible abuse is enough to keep her in the case.

Doe v. Sliverman (and Dixon), 286 Ore. App. 813  (2017)   

My fellow lawyer from Southern Oregon, Tom Petersen, called me up about a case where the trial court dismissed a sex abuse survivor’s lawsuit against the abuser, former child psychologist Samuel Arthur Silverman, and his wife at the very start of the case.  The allegations against the wife were that she knew the husband had an improper sexual interest in children generally, and in particular, that she saw the 13 year old victim come out of her husband’s separate, private bedroom one morning when he had been staying the night ostensibly visiting the couple’s son, the victim’s friend from school.

After seeing our client in that compromising situation, the wife, a doctor specializing  in adolescent psychology named Sandra Dixon, MD, was alleged to have begun treating our client very coldly, ignoring him entirely whenever possible.  There was also evidence that Dixon had known Silverman presented a danger to children based on past instances of abuse or suspicious behavior.  Silverman was eventually arrested, tried, and sentenced to prison for sexually abusing our client.  He absconded overseas for a time, but after 8 years on the run, was caught and extradited to Oregon to serve his sentence.

Oregon law on the child abuse statute of limitations (ORS 12.117) allows child abuse victims to bring suit until age 40, or within 5 years of making a connection between one’s abuse and subsequent injuries, whichever is later.  In dismissing the claim, Dr. Sandra Dixon argued (and the trial court agreed) that she did not “knowingly” allow, permit, or encourage abuse by Silverman because she did not see the abuse itself.  The Court of Appeals rightly rejected such a narrow view of what the legislature meant by “allowing” child abuse to happen.  Unless it is further appealed, the case now returns to the trial court to find out exactly what Sandra Dixon knew about her husband’s proven sexual abuse of our client.

Another Victory for Portland Couple in 23+ Year Fight with City

Court of Appeals says the City of Portland can’t avoid liability for preventing future development access.

Courter v. City of Portland, 286 Ore. App. 39 (2017)

Dick and Gayanne Courter just wanted to enjoy their tree farm on Cornell Road and Skyline Boulevard, and eventually develop it to pay for their retirement.  That dream started to crumble when the City of Portland decided in 1994 to place water tanks—with a capacity of over 2 million gallons—on part of the Courters’ land.   I served as second chair in the condemnation trial (my first trial) held in late 2003 with my old boss Kelly Clark (RIP).  We hit the City hard, and they were forced to pay the Courters what the land was worth, as well as the damages to the rest of the property, in a verdict that eventually approached $1,000,000 when attorney fees were added.    Here is a good summary of that fight and the background on the case from a 2004 Portland Tribune article.

Unfortunately, even though we won at trial, and the City had to pay, it also got to use the land for its water tank (just one was ultimately built).  Part of the value left in the Courters’ land was the ability to put in a subdivision o the remainder, accessed by the same road the City uses to access its water tank.  Of course, a water tank isn’t worth much without pipes to connect it to the water system, so the City had to use the access road to lay the piping to the tank.  At the 2003 trial, we showed that for the rest of the property to be developed, the City would have to bury its pipes 14 feet in the ground on that access road.  So when the City built the tanks and connected the pipes, how deep did they bury them?

Four feet.

That’s right, there are parts of piping that will stand up 10 feet from the middle of the road if the Courters try to develop (or the moving of the pipes will cost a lot of money).   So, the Courters sued the City to either get the money for moving the pipes or receive the value of the lost development.  The City figured that since there was no application for development, the Courters had not been harmed yet.  The trial court agreed, so Roggendorf Law appealed for the Courters to reverse the dismissal of their lawsuit.  The Court of Appeals agreed with the Courters that the City has to answer for why they didn’t follow their promises made back in 2003 under oath.

Really, the City’s theory got it entirely backwards.  By not burying their pipes deep enough, the City exceeded the scope of their easement and so it owes the Courters money for preventing valuable and needed housing, or alternatively the City can just move its pipes and then there won’t be a problem at all.  After all, that’s what the City told the court and jury they would do in 2003 is bury  the pipes deep enough that they would never be an issue.  That concession saved the City over a million dollars in compensation during the condemnation trial.  The City of Portland needs to keep its promises, or pay its fair share.

Insurance Companies Can’t String Along Payments Without Facing Fees

Oregon Supreme Court holds that partial payments of undisputed amounts do not relieve Insurance companies from paying attorney fees.

Long v. Farmers Ins. Co., 360 Ore. 791

Say your kitchen sink pipe bursts in the middle of winter, and you make a homeowner’s insurance claim.  Say the insurance company pays for the immediate repair to stop the leak, but then refuses to pay any more for months, ultimately leaving you without a functioning kitchen for a year, because they disagree how much cabinets should cost.  Under Oregon law, if you have to wait more than 6 months for payment of the value of the loss, the insurance company has to pay all of your lawyer fees for any lawsuit you bring to get what you are owed.  ORS 742.061. For several years, however, the courts had ruled you needed to secure a favorable judgment in a lawsuit to collect those fees.

In this Oregon Supreme Court appeal I handled with another lawyer, a rough and ready old Marine named Mr. Kelly Vance (I was not involved at the Court of Appeals), the trial court refused to award fees at all because the insurance company eventually paid all they were required to pay (according to the jury) prior to trial, and so a favorable judgment could not be obtained by the homeowner.  So even though the lawyer eventually obtained an extra ~$11,000 over Farmer’s initial payment, she could not collect her lawyer fees, including fees up to trial (a lot more than $11,000).

What this meant in practice is that the insurance company could fix a leak, make you hire a lawyer, not pay any repairs until the day of trial, and then bring a check for the full amount and avoid any lawyer fee liability—meaning you had to pay for your own lawyer, out of your own pocket, usually for far more than the repair check.  A real scam.

The Oregon Supreme Court was having none of it.  The court easily saw the problems with requiring a judgment in this kind of situation and  held that once the insurance company refused to pay the full amount in 6 months, they are on the hook for any fees incurred to obtain a better result.  In our case, Kelly didn’t get a better result at trial, so the court didn’t give fees for the trial itself.  Although that was unfortunate (trail should not be that big of a gamble for a homeowner after nearly two years of delay), the removal of the judgment requirement was a huge win for Oregon insurance consumers.

A Narrow but Significant Victory for the Deaf in Jail

Even in Jail, the Deaf have rights.  One of those rights is to know what is going on.  Another right is to receive medication even if you happen to be asleep.  When you are Deaf and and in Jail, and the only notification system in the Jail is the intercom, you don’t know when it is recreation time, nor do you hear them calling your name to get your necessary medication.

Roggendorf Law brought suit against Clark County, Washington for the conditions at the county jail in Vancouver.  The litigation is ongoing, but just today we received an opinion that granted summary judgment to the plaintiffs (that is, the court has decided as a matter of law that the plaintiffs win) on the narrow issue of whether the Jail can do nothing and expect Deaf inmates to just figure it out.

The court denied summary judgment—meaning that the jury has to decide—whether my clients are owed money and how much they are owed for these violations of their rights, as well as whether other problems we have alleged were in fact violations of their rights under the Americans with Disability Act.  But the court itself has ruled that no matter what else, the Clark County Jail has to start providing some type of notification that is accessible to Deaf and hard of hearing people.

64. Order on Plaintiffs’ Sum J

Roggendorf Law Files Suit against Dominican Order, Holy Rosary Parish

Roggendorf Law filed suit today on behalf of a man who was abused for nearly a decade at Portland’s Holy Rosary Church in Northeast Portland, a church operated and staffed by the Western Dominican Province of the Holy Name.  He is using a pseudonym to shield his identity and protect his family from reprisals.

Between the ages of 8 and 17, my client was fondled, kissed on the mouth, and subjected to crude and salacious discussions of pornography and masturbation by Fr. Emmerich Vogt, a priest of the order.  Around age 12, my client reported  the kissing and the graphic sex talk to other Dominican priests at Holy Rosary, but was told to obey Fr. Vogt and to stop complaining.

The complaint seeks $950,000 in damages.

Read the complaint: HERE.

Nice to See that Money Isn’t Enough for Politically Connected Accused Pervert

Terry Bean can’t buy his way out of trouble.

Politically-connected fundraiser to the President, Portland big shot Terry Bean, is accused of having sex with a 15 year old boy in a hotel in Eugene in 2013.  Bean is charged with felony sodomy among other charges.

Whether the victim wants to testify or not–and as much of a staunch advocate for victims as I am–an abuser settling with his victim should never get him out of criminal charges.  You can’t buy the criminal justice system in America (at least you shouldn’t be able to).

Moreover, according to the Oregonian, Bean has other past “indiscretions” that apparently did not result in charges:

Prosecutor Scott Healy opposed the civil compromise and offered detailed account of Bean’s sexual encounter with three teenage males — two of the incidents happened more than 20 years ago — in court filings.

If these allegations are true (and there’s no way of knowing beyond the prosecutor’s statements here, so that has to be taken with a grain of salt), such a history would suggest that sweeping these charges under the rug is not in the best interests of public safety.  Were there similar civil compromises in the past?

It’s nice to see that money can’t buy everything in this State, even for the politically connected.

Follow up on Sherwood Priest Ysrael Bien and the Bathroom Camera

As my dearly departed father would say, the plot thickens

From the Oregonian:

Priest pretended to notify police after teen found camera in church bathroom, records say

In my earlier post, I said that “the failure of Fr. Bien to report the camera at all until after it was subsequently “lost” speaks volumes about the continuing systemic failure of the Archdiocese to educate parishioners on the reporting of suspected abuse and misconduct.”

Well, let me hand it to the parishioners, they didn’t just let it go, and they were active in making sure the misconduct had been reported.  Fr. Bein simply lied to them that it had been.

Quelle suprise.

Here’s the load of horse pucky the priest gave the teen’s mother when she followed up to find out what was being done about the camera:

[Fr.Bien] told her that police had visited the parish and they didn’t need the boy’s statement or fingerprints because the priest had filled them in on everything, records say. Police had a suspect in mind who had used similar devices in other places, he continued. They were gathering more evidence to make an arrest, he said.

As the kids used to say, ya, right.

Even better, Fr. Bien started penning what appears to be his first in a series of fictional novels based around police investigation techniques:

“Sherwood police did not have enough to go with from the device,” the priest wrote. “Two sets of fingerprints were found: mine and, by process of elimination, (your son’s). … They were hoping to find a third set of fingerprints to lead them to the perpetrator. But there was none. Not surprising because they said it is consistent with the modus operandi of the person they have in mind. The device – same style and model – is ‘affiliated’ with this person. Unfortunately, these are ‘circumstantial (sic). Because of insufficient and inconclusive evidence, they are not able to place the person they have in mind in our church bathroom. …

“Fortunately, however, other police departments are pursuing the same person for another on-going case investigation (I am not sure if it is a crime of a similar nature or different and bigger). Happily, this is where they are confident they are going to get him. So, officially Sherwood police investigation of our incident is over. But other police departments (Tigard or Beaverton, I’m not exactly sure) are currently pursuing the person they think is also our perpetrator …”

The priest then asked the couple to pray for him because he was having some medical tests done.

On the last part, the medical tests, of course he would add that, to distract from the issue at hand.

In a court of law, if prosecuted, Fr. Bien deserves a presumption of innocence.  No such presumption applies in our regular lives.  I’m going out on a limb here and saying Fr. Bien was likely intimately and personally involved with placing this camera.  If that excludes me from the jury pool in his potential upcoming criminal trial, well, too bad.

Serious kudos to the family here for not letting this go, and for following up with police themselves.  That’s the way that all good Catholics should behave.  I’m proud of them, even as I’m ashamed of one of the priests of my faith.  Always listen to that little voice.

And yes, the device could have been bluetooth enabled.  Now of course, you all should go read the entire article, but let me leave you with this gem: “A judge signed search warrants for the church, Bien’s home, his car, phones and computers.

Oh, what a tangled web we weave, Fr. Bien.

Archdiocese of Portland still has problems with its priests

At best, this story shows a disturbing lack of training for Fr. Ysrael Bien.  At worst, it suggests that he may have been involved in sexual misconduct.

Sherwood priest on leave as police investigate hidden camera

A fake outlet that concealed a camera was placed next to the toilet in the men’s room at St. Francis Church in Sherwood.  Per the Oregonian:

A church member initially found a camera – disguised as a power outlet – in a St. Francis bathroom on April 26 and turned it over to Bien.

But Bien didn’t contact police until May 20, when he reported it as stolen.

* * * * * outletcamerajpg-ebf87aaf77d52f2c[1]

The secret camera was placed next to a toilet and would have captured anyone who used the restroom[.]

What the hell is going on here?  Thankfully the Archdiocese has “suspended” Fr. Bien, but the failure of Fr. Bien to report the camera at all until after it was subsequently “lost” speaks volumes about the continuing systemic failure of the Archdiocese to educate parishioners on the reporting of suspected abuse and misconduct.  No mention of whether the camera had bluetooth capability.  Someone could have been—and almost certainly was—taping kids going to the bathroom in the church.  And this idiot doesn’t even report it to anyone for almost a month, and then only does to report it stolen!!!  Something is rotten in the parish of St. Francis.

Trusting individual priests to police themselves or their parishes was shown to be a spectacular failure for the decades leading up to the priest abuse scandal of the 2000s and the Archdiocese’s own bankruptcy in 2004-05.   Yet I’ve seen no communication from the Archbishop to the parishioners to report such misconduct to the Archbishop directly.  That needs to change.  Now.

Archdiocese of St. Paul Charged Criminally

An amazing story out of St. Paul, Minnesota: the Archdiocese of St. Paul is being criminally prosecuted for failing to protect boys from Rev. Curtis Wehmeyer in 2010.  Fr. Wehmeyer had a trailer on the church grounds he used to ply the kids with drugs and alcohol, and abuse them.  He was known to have been unstable and inappropriate throughout his 15+ years of ministry in the Archdiocese of St. Paul.

The lawsuit is an indictment of the Archdiocese itself , not just individual prelates, and so is also an indictment of the Church’s actions over the last 60 plus years:

The archdiocese’s failure to protect these children is part of an institutional pattern of allowing unsuitable priests to continue working in the church, and have access to children, the complaint says. In an extremely rare move, the complaint does not accuse a specific church leader, but rather the archdiocese corporation as a whole.

The pattern of ignoring warning signs about Wehmeyer was decades-long and blatant:

[T]he archdiocese officials were aware of Wehmeyer’s problematic behavior yet ordained him and allowed him to assume greater duties in church ministry.

When Wehmeyer was admitted to the seminary in 1997, “seminary officials were aware Wehmeyer had a history of abusing alcohol and marijuana, experimented with other drugs, was promiscuous with men and women, was on medication for low-level depression and was in therapy,” the 44-page complaint says.

In 2004, Wehmeyer approached two younger-looking men at a Barnes and Noble in Roseville, seeking to have sex. He was evaluated at a treatment center for troubled priests, and was later put on an archdiocese monitoring program.

But the archdiocese failed to enforce its own restrictions for Wehmeyer, Choi said. He cited a 2010 incident when a priest reported to Auxiliary Bishop Lee Piché that on a camping trip Wehmeyer had slept in the same bed with one of the victims.

The criminal charges were driven by the recent nature of the abuse.  Numerous cases have been filed since the passage of the Minnesota Child Victim Act in 2012.  The Child Victims Act allows sexual assault civil lawsuits to be filed even if they’re beyond the statute of limitations for three years after its passage. “David Clohessy, director of the Survivors Network of those Abused by Priests, credited the legislation for Friday’s civil lawsuit.

Unfortunately, ignoring warnings and the cover-up of misconduct was a hallmark of the mentality prevalent in the Church as a whole, including the Archdiocese of Portland. But once a criminal statute of limitations has run, a person or organization cannot be charged criminally under the Ex Post Facto clause of the Constitution.

The Archdiocese of Portland’s most recent known abuse scandal happened in Woodburn, Oregon in 2012, where Fr. Angel Perez photographed and molested a boy who had been spending the night in the rectory in violation of Archdiocese policies.  Perhaps the Clackamas County DA can look into the Archdiocese of Portland’s conduct there and see if it warrants charges.