Eminent Domain Abuse: Nice airport … it’d be a real shame if anything happened to it.

You would expect this line in a cheesy Mob movie, not from government officials holding the power of eminent domain.  But in New Jersey, it seems the local government has been watching Goodfellas a few too many times.

The dispute involved whether a family’s 726 acre airport was going to be allowed to expand to take in overflow flights from Newark. The family wanted to expand, the local residents had been throwing fits about the airport since 1967.

From a great post by someone I don’t usually look at for condemnation case reports, Weaponsman, comes this great exchange:

Thor Solberg, Jr: “[Y]ou’re taking away my livelihood!”
Monaco: “No, we’re not.”
Mirota: “Not necessarily.”
Solberg: “You know that’s what–you want to take the land.”
Monaco: “We haven’t done that — yet.”
Solberg: “It’s our land.”
Savo: “Let me tell you what our options are. We could go down there tomorrow, right? And [take] just enough to put the airport out of business. I wouldn’t say anything.”

readingtonvsolberg04may15, page 13.

Even better, the Township–in what can only be one of the few preemptive uses of children as human shields by a government entity in the United States of America–decided to  locate a school directly across the street from the airport.  Id.  Go ahead and expand now, and kick the poor children out in the snow!!!  Ha ha, it is so funny, ho ho it is to laugh, if only there weren’t real lives and livelihoods on the line because of this arrogant group of bureaucrats.  And the Township located the school there in direct opposition to strenuous objections from the NJ Department of Transportation.  The township folks knew what they were doing.

When the Solbergs decided to finally sell this trouble to the State, the Township really went nuts.  It decided to condemn property that was subject to active negotiations between a private citizen and the State.   The bond measure to acquire the property at about 60% of the value passed by a comfortable margin of 9%, a solid win in modern electoral circles, but qualified as “narrow” by the court on appeal.  The stated purpose was not for the Township to run the airport—some other party would apparently manage it—but simply to keep the airport small in perpetuity.

In New Jersey, eminent domain can be exercised with broad discretion by municipalities, but “the decision to condemn shall not be enforced where there has been a showing of ‘improper motives, bad faith, or some other consideration amounting to a manifest abuse of the power of eminent domain.'” Borough of Essex Fells v. Kessler Institute for Rehabilitation, Inc., 289 N.J. Super. 329, 337 (Law Div.1995).  Although the ordinance to acquire the airport by eminent domain on its face might seem acceptable, the court took into consideration the long and contentious history between the Township and the airport, as well as the principle that a municipality only has limited control over airports under state law, to void the condemnation.

Really, the victory for the family and their airport is more properly viewed as a power struggle between the State that needs more air facilities and a local community that wants to stay small.  I wonder if the same result would obtain if the airport was not needed for Newark’s overflow, and was just some out-of-the-way facility.  Maybe after the goombah-type threats in the 1990s against the Solbergs, it would still get struck down.  The Superior Court opinion catalogued a helpful list of cases involving just such bad faith takings, and New Jersey has a well-developed body of case law specifically on that topic (perhaps the bullying mentality just comes with the accent):

[W]here a condemnation is commenced for an apparently valid public purpose, but the real purpose is otherwise, the condemnation may be set aside. Casino Reinv. Dev. Auth. v. Banin, 320 N.J. Super. 342 (Law Div. 1998); Essex Fells, supra, 289 N.J. Super. at 337; Wilmington Parking Auth. v. Land With Improvements, 521 A.2d 227 (De. 1986); see also, Earth Management, Inc. v. Heard County, 248 Ga. 442, 283 S.E.2d 455 (1981) (condemnation of land for a public park was a subterfuge to veil the real purpose of preventing construction of a hazardous waste disposal site); Carroll County v. City of Bremen, 256 Ga. 281, 347 S.E.2d 598 (1986) (condemnation for police and fire training facility voided when real purpose was to prevent the construction of a sewage treatment plant); Pheasant Ridge Assoc. v. Burlington Town, 399 Mass. 771, 1506 N.E.2d 1152 (1987) (land taken for park, recreation and moderate income housing seen as pretext to exclude low or moderate income housing). In 1997, the Supreme Court of New Jersey quoted from Wilmington Parking Auth., supra, 521 A.2d at 231: “In determining whether projects with substantial benefit to private parties are for a public purpose, this Court has held that the trial court must examine the ‘underlying purpose’ of the condemning authority in proposing a project as well as the purpose of the project itself.” City of Atlantic City, supra, 148 N.J. at 73.

Opinion at 21-22.  In any event, this is a substantial case for New Jersey, and hopefully a bellwether for other jurisdictions to take up a vigorous doctrine of looking at the motives behingd condemnation actions.  All too often, this kind of government power is abused to hurt folks who can’t afford over 30 years of threats and 10 years of litigation.

Child Molesters Use Churches to Get to Kids

These two stories in the Oregonian shows how child abusers can be anyone, and that they love to infiltrate places where they can appear trustworthy.

Jon Patrick Wheat is already a registered sex offender, but still was able to gain access to and some measure of control over a 6 year old girl at a church in Oregon City.

Wheat’s story follows closely on the heels of another church abuse case, that one from Salem, where Peter James Bass pleaded guilty to five counts of first-degree rape of a girl under 16.

So, why do child molesters gravitate to institutions of trust like churches,schools, Scouting, LDS missions, mentor clubs, and youth ministries?  To paraphrase John Dillinger, that’s where the kids are.   But it’s more than that.  These organizations are trusted in our society.  When a molester gets into the organization as a volunteer or employee, he (usually, but not always a “he”) gains a small part of that trust just by showing up.  Trust is the key to a child molester’s method.  If a child trusts an adult, even a little, that trust can be expanded upon and exploited to move the child down the path of grooming to abuse.

A lot of people are concerned about the stranger in the park with puppies.  And it’s right to be concerned about that.  But the number of stranger-danger assaults pale in comparison to those committed by trusted friends, ministers, volunteer leaders, or even family members.  Child molesters don’t look like misshapen Quasimodoes shuffling around with their pants down.  At least not the successful ones.

Remember the basic rule: if an adult is interested in spending time alone with your child, they should be considered guilty until proven innocent, and you should educate your children to recognize warning signs and get away, then tell you about it.

We have rules in criminal cases in courts of law that say that everyone is presumed innocent.  As a legal matter, that is fine.  But you don’t have to live your life that way, or risk your children’s long term health and safety because of it.

Oregon Appellate Review – Court rejects ski releases for resort’s own negligence in Oregon

Just before Christmas last year, the Oregon Supreme Court decided Bagley v. Mt. Bachelor, Inc., 356 Ore. 543, 340 P.3d 27 (2014), a case involving a young and promising snowboarder left paralyzed by what was asserted to be a bad jump at the Mt. Bachelor ski resort.  That young man, Miles Bagley, took a jump on a terrain park that caused him to fall badly, breaking his neck.  As a result, he sued the resort because a poorly designed jump is not an “inherent risk” of snowboarding.  His case was dismissed based on the release he signed as part of his season pass.  The release absolved the resort of all responsibility for anything that happened at all on the mountain.  Such a broad and unthinking release is not legitimate in my opinion, and the result here was particularly unjust.

I wrote an amicus curiae (friend of the court) brief on behalf of the Oregon Trial Lawyers Association, showing how widespread these “complete” releases really are.  You can read the brief her: Amicus MERITS Final (8MB file).  I hope it was helpful to the Court, but more importantly, the Oregon Supreme Court made a strong statement in favor of consumers and “little guy” by saying that complete releases were unconscionable in certain circumstances—including Miles’ case.

He hasn’t won yet, but at least now he has the chance to prove his case.  The analysis that went into the unconscionability analysis will be discussed more when I look at the Hoodoo Ski Bowl decision from last month.

Roggendorf Law in the news

oregonianWe filed suit today against the Jehovah’s Witnesses. Our incredibly brave client was willing to go on camera and microphone to advocate for child abuse victims. What a tremendously gutsy and selfless woman. Way to go, Velicia!

From the Oregonian: Jehovah’s Witnesses under fire from former congregants who say child sex abuse was hushed

Hillsboro teacher arrested for child abuse

Gregg Martin Jensen

Gregg Martin Jensen

was arrested last Friday for abusing one of his students.  The Oregonian reports that he was charged with “sexual abuse, luring a minor and encouraging child sexual abuse.”  If guilty, let’s hope that Mr. Jensen doesn’t see the outside world for a long, long time.

But what gets me about this is the school’s reaction.  Instead of sympathy, we see defensiveness and minimization:

Communications Director Beth Graser said the district has been pointing concerned parents to police statements about the case and asking students not to speculate or spread rumors.

“It’s just hard because things like this happen and people want answers,” she said. “No one anywhere can provide an ironclad guarantee that nothing (like this) is ever going to happen.”

Nice strawman, Ms. Graser.  What, “everyone else has molesters, so it’s ok that the school had one”?  Is that really the best statement from the school after one of its students gets molested? 

What the public needs is not an “ironclad guarantee” but a reasonable response, and policies that prevent this from happening.  It’s early yet (and perhaps Ms. Graser should have just offered her sympathy, encouraged other victims to come forward, and say that it was too early to tell what happened), but in the hundreds of child abuse cases I’ve been involved in, almost all of them had times where a strictly enforced policy or a mindful co-worker could have cut short or prevented the abuse.  The predator doesn’t own a magic portal or invisible cloak, so most likely someone, at some point, saw something and either didn’t talk or was told to shut up.

Instead of accepting responsibility and seeking healing (& one can apologize for the abuse happening without accepting legal liability), what we see from the School in the Oregonian is preemptive spin, disclaiming of responsibility, and an attempt to squelch “rumors”—or more likely any discussion of the case at all in the school.  There is nothing at the school’s website even mentioning the abuse or advocating that victims come forward.

Creepy predatory teachers are nothing new to Oregon, and the school should know that while rumor-mongering about potential victims should be strongly discouraged, talking about the case and raising concerns are healthy.  If another child or children have been abused, they will only feel empowered to come forward in an environment that is supportive and accepts its responsibility to keep children safe.

Liberty High doesn’t sound like the kind of place where a victim would feel comfortable coming forward.  Maybe that’s why this creep Jensen got away with it for at least a little while.

Erin’s Law in Oregon

Erin’s Law would require school districts to implement sexual abuse education to public school students.  Why this isn’t in place already everywhere is a mystery to me.  Maybe we can find some Oregon legislators to advance this in the next session.  Ask the state candidates in this election cycle if they support this law.  The schools are historically one of the worst places for abuse, and because of sovereign immunity and tort claim notice requirements, the victims are almost always denied civil justice.  Let’s get Erin’s Law passed in Oregon.  

https://www.facebook.com/ErinsLaw

Never, ever, take naked pictures of yourself

facebook-stalkThey can and do get out, and ruin lives in the process—especially if a kid does it themselves.  This is a terrible story from our own backyard:

Facebook stalker gets girl to give him naked pics, and then blackmails her and a friend for more.

The darker side of social media is maturing, so to speak, and the old methods of extortion, blackmail, stalking, and sexual harassment have become recognizable patterns.  Kids are new to everything, so even if you know never to friend someone you’ve never heard of, your child doesn’t.

Molesters are invariably good at manipulating children—it’s all they think about and all the practice.  Always monitor your kids’ internet use by making them give you their password.

It’s “invasive”?  Tough.  Child abusers are evil incarnate, and they count on the “discretion” and “politeness” of society to keep their predations secret.

Be nosy.  The life you save may be your child’s.  Still, evil people do evil things, and the best we can do as parents is try to keep our kids safe.

As for this poor girl and her friend, if they ever find this piece of filth who is blackmailing them, I hope they get a chance to use Masha’s law and bankrupt the creep.

Kelly Clark the artist

After a few days of reflection, my contribution to the public praise of this great man.

A lot has been said about Kelly as a lawyer (he was indeed one of the best of his generation), an abuse advocate (none better), and as a leader and mentor in the recovery community (dedicated to a fault). One thing that hasn’t been discussed as much was his deep love of language. You see, Kelly was an intellectual in the best sense of the word. He had been beaten up enough by life to stay connected to normal people, but his quick and curious mind never stopped looking for a more perfect way to craft words.

Kelly Clark

Kelly Clark

For 13 years, I wrote the first draft of most of Kelly Clark’s words as a lawyer. That’s not to say he just had me write something and signed his name to it—to the contrary, he fully engaged in the process, but he used my raw material to mold and sculpt truly persuasive arguments. We got to the point, rather quickly it seems in retrospect, where we knew what the other was thinking and what they meant, what we wanted to say, and how we were going to say it. He called me his “Brain in the Jar”—meaning that I sat in my office cranking out thoughts without all that messy human interface in the way. Putting the human face on things was Kelly’s job.

Kelly told me that in our vocation—and he truly believed the law was a calling—we worked with words the way a sculptor works with clay. One of my tendencies when rushed or disorganized is to retreat into complex, dense writing, yielding large blobs of unwieldy muck. Kelly taught me to see that and correct it, not by telling me to dumb down my writing (advice we both hated), or just “make it shorter” (which is not advice at all), but to hone it. To craft it more like a blacksmith would forge a sword. Remove what’s unnecessary and sharpen what works. He sent me to Colorado last fall for a seminar to do just that, saying that I was at this point an excellent legal writing technician but that I now needed to become an artist. That is how he viewed written legal advocacy, and writing in general.

Steve Hayward posted a great video with Kelly reading from a passage on the spiritual decline in the Episcopal Church. One of the things that most impressed Kelly was not the thought itself, which he understood and shared, but the way the author conveyed it.

But at the same time, Kelly wasn’t above having fun with writing. In one memo in an early Archdiocese case, the defense raised the concept of laches, which requires three elements. Setting aside the fact that laches does not apply to actions at law (a legal technicality that gave us an easy win anyway), all of the three necessary elements couldn’t exist in a properly pleaded child abuse case. So I used the quote on the “importance of counting” from Monty Python and the Holy Grail in a footnote:

First shalt thou take out the Holy Pin, then shalt thou count to three, no more, no less. Three shall be the number thou shalt count, and the number of the counting shall be three. Four shalt thou not count, neither count thou two, excepting that thou then proceed to three. Five is right out. Once the number three, being the third number, be reached, then lobbest thou thy Holy Hand Grenade of Antioch towards thy foe, who being naughty in My sight, shall snuff it.

I couldn’t believe he left that in; it made me happy as a little kid. Even better, we got the headline that Kelly always wanted from that motion (even if it didn’t get printed anywhere): “Christ Rules Against Archdiocese.” Tom Christ (pronounced “Krist” though) was the pro tem judge, and he knocked down a number of the Archdiocese’s defenses in that case.

Kelly wasn’t above levity of his own. In fact, the one time Kelly got truly upset with me in my writing was when I changed one of his barbs. We had a case in which a priest had abused a boy in part by grinding on the poor kid through clothing. Gross, terrible, a massive violation; but was it “abuse”? We said “of course it is!”, and Kelly emphasized this point by writing that “… humping is sexual (just ask any dog—it will bite you).” I took out the “it will bite you” in the final draft. Apparently, he thought that was a salient point; he was not happy-fun Kelly that day. But as long as my arguments didn’t leave him “with [his] **** in his hands in front of the judge,” as he would often say, he was pleased .

Still, over the dozen-plus years together, he taught me that it was far better not to take those cheap shots at the follies of opposing—and also taught me to break that rule in the utmost deserving of circumstances. Taking the high road wasn’t just advice, it was the way he lived. “Don’t get mad, don’t get even, just get ahead.” That was something he told me on more than one occasion, and sage wisdom given my bellicose nature. His advice had the effect of changing the person, not just your actions. His little cryptic red-ink notes—“Let’s talk” (uh-oh, or maybe even nothing), “Awkward” (meaning either rephrase it, or maybe just chuck the whole concept), and “See me” (heart stops, what did I do wrong?)—triggered more introspection and self-correction than a half page of explanations.

At times, we disagreed about how to do something, and we both gave in when the other was right (or particularly animated about an issue). For the last several years, we got to the point where there was little for him to do on my work product, because he had essentially done it all years before. I knew how he wanted arguments to read, and he knew that I would make them work logically and rhetorically as best the law allowed. God willing, I will always carry that little facet of Kelly’s personality in my head, guiding me on the best way to say things. I’ve always needed an editor, and Kelly, you were the best.

Kelly made me better at writing, but like all truly great teachers, he made me a better human being. His compassion, patience, and gentleness shaped me as much as his editorial comments shaped my work. When I told him I wanted to leave the firm last March, his first reaction was, very kindly, “You can’t leave, I need you.” My response was, “It’s OK, I’ll always be around to help. It’s just a phone call away.” But then he went somewhere that words didn’t matter, and where my help, meager as it was, was useless. And when I found out he had died, I wanted to tell him in the words J.R.R. Tolkien in the Two Towers, “Don’t leave me here alone! It’s your Sam calling. Don’t go where I can’t follow!” But he had to go, and he deserves his rest.

It was a blessing to see him off to the Mayo Clinic on December 8, and the news that we wouldn’t seem him coming back has been the saddest moment in my life since my father died in 1997. Kelly was more than a boss, more than a law partner, and even more than a friend. He was an Example. An example of how to live life right, how to work and help others, how to love and cherish your family and friends. Occasionally, after doing some incredibly boneheaded, absent-minded professor-type thing, I would mention to him that perhaps the purpose of my life was to serve as a warning to others. Kelly Clark was just the opposite. His life, his teaching, his mentoring, above all his patience, serve as that shining city on the hill—a phrase he loved from Reagan—to all of us on what it means to live a truly humane life.

Kelly deeply and truly believed in a compassionate and loving God, and I for one have no doubt that this all-loving God of the universe has taken Kelly into His arms. We love you brother, and we miss you. Godspeed to your rest. We will see you again in God’s time.

My friend, mentor and brother, Kelly Clark — Requiescat In Pace

kelly-clark-thumbI can’t really say much beyond what I wrote earlier to an email to friends:

For 13 years, Kelly and I “shared a brain”: I would know what he wanted to say, and he always knew best how to say it.  Although his abuse work was central to who he was, he cared about and tried to fight for everyone who was being taken advantage of.  From fighting casinos and the lottery because of the impact on gambling addicts, to representing landowners getting shafted by the government, Kelly was always looking for a good cause and good people to dedicate his keen intellect and extremely well-honed instincts.  His thinking was always based on subtlety and understatement, and that thoughtfulness and caring came through to everyone he met.  His calm reaction was the opposite of my quick impatience, and his personality tempered my approach to everything, from litigation to family.

One thing that many folks didn’t see of Kelly was the truly selfless help he gave to people in substance abuse recovery.  He would take a call in the middle of a meeting, take an hour out of the office, whatever needed do get done to give these guys the support they needed right away so that they didn’t backslide.  He would tell me that as a “normie,” (a “normal” person—which is debatable) I couldn’t quite get the urgency of addicts feeling like they are in trouble, and that he needed to help them when they called, or they would quickly be beyond help.  Once, I remember we went to some event on the other side of town, and he was looking around the streets from the car for a friend he knew that had fallen off the wagon a few days before, because that was where the guy used to hang out when he was using.  Even from his sickbed, Kelly continued this ministry to those in recovery.

Kelly taught me more than I can say, and made me not just a better lawyer, but a better man.  Leaving his firm back in May, I told him that I would always be around to help, even if my office was somewhere else, whenever he got back from caring for his wife in her final months.  His loss now has just left me stunned, and even seeing him off to the Mayo a little over a week ago, you’d never guess he would be leaving us so soon.  Tears don’t come easily, but there are more than a few for KC right now.

Words cannot express the gratitude I feel for Kelly being in my life, and the real hole in my heart now that he is gone.  The world is indeed a smaller place without him in it.  I take comfort from his rock-solid faith in God, even though he had seen some of the worst of life.  We will see our dear brother again over the river.

Kristian

Update:  I had incorrectly put “Pacem” above.  Kelly, who learned classical Latin several years back (since he wasn’t doing much else besides running a major law office and taking on the Catholic Church), would want me to use proper Latin.

The troubling priorities of Cardinal Mahony

Cardinal Mahoney

Cardinal Mahoney

A friend emailed this link to me and advised “don’t read it unless you’re prepared to get very angry.”

Indeed.

He seemed almost temperamentally unable to see a problem and not do something. When a cathedral fire alarm stopped working, Mahony found a screwdriver and rewired it. When the clock was blinking the wrong time in an aide’s car, he quickly reset it.

Apparently that drive did not extend to cleaning out the child molesters in the Church.

Even after Fr. Tom Doyle’s excellent guide to dealing with the problem, and his lawyer’s advice to “Be sure that someone has reported the matter to the authorities,” Mahony still refused to deal with problem priests in any way other than shuffling them around (so more kids could get hurt).

There’s really so much there, including the great story of how the Times shamed the Church into tracking down a molester that it had helped get away.

“They lied as bad as any thug or ex-con I’ve ever come across on the street,” [Det.] Lyon recalled in an interview. “They were more interested in saving the reputation of the church than helping us find these young victims.”

Read the whole thing