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Denson's Lawsuit Dismissed by Federal Judge


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2 hours ago, straightshooter said:

LOL. I’ll just leave you two to continue “debating” in your echo chamber. But I’ll leave you with this. Not difficult to define this judge having a clear conflict according to his very own code of conduct. Good day, brethren.

You're wrong.  Get over it.  The three attorneys that frequent this board have explained why, ad nauseum.  That you don't know what a canon is and subjectively misapply it does not change this fact.

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4 hours ago, provoman said:

Does the Church have a "legal duty to communicate" the transgressions of a person holding a calling? (How did the whole thing not get thrown out, what Court would require a Church to publish confessions)

If the Church does have a legal duty, does that mean sustains will be:

"It is proposed that Sister Jones be sustained as the YW President. But first, her sins  In 1987, Sister Jones confessed to having premarital sex. In 1993, Sister Jones confessed to impure thoughts about another womans husband. Just last week Sister Jones confessed to taking the Lord's name in vain. All in favor....Any opposed"

I think your missing the point. The contention is that Bishop's alleged confessed transgressions should have kept the Church from giving him a calling that would put him in a position to repeat the transgression - presiding over women.

Let's say that a member has confessed to embezzling money from his employer and has served the appropriate legal sentence. He would like to have a calling. Should his bishop call him to be a ward clerk and put him in a position that might be too tempting?

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17 minutes ago, Thinking said:

I think your missing the point. The contention is that Bishop's alleged confessed transgressions should have kept the Church from giving him a calling that would put him in a position to repeat the transgression - presiding over women.

Let's say that a member has confessed to embezzling money from his employer and has served the appropriate legal sentence. He would like to have a calling. Should his bishop call him to be a ward clerk and put him in a position that might be too tempting?

You should read her complaint and the motion to dismiss 

Fifth Cause of Action, Fraudulent Concealnent or Nondisclosure...see the complaint paragraph 68.

Denson's claim is that was not told information that she claims would have affected her decision about the MTC and JBishop. 

Edited by provoman
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10 minutes ago, Thinking said:

I think your missing the point. The contention is that Bishop's alleged confessed transgressions should have kept the Church from giving him a calling that would put him in a position to repeat the transgression - presiding over women.

Let's say that a member has confessed to embezzling money from his employer and has served the appropriate legal sentence. He would like to have a calling. Should his bishop call him to be a ward clerk and put him in a position that might be too tempting?

But a fraud is a misrepresentation (perhaps it is different legally speaking) which would seem to indicate it is about communication and not authority or position to do harm.  Wouldn't that be more liability?

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15 hours ago, smac97 said:

Not only that, but he's a member of the Church.No, he doesn't have a conflict.  BYU is not involved in the lawsuit. 

I'm not sure I agree here.  The MTC is part of BYU.  The domain is https://www.mtc.byu.edu/ the hiring for employment at the MTC is all done through BYU and jobs posted at the  BYU.edu domain, and MTC employees are issued a BYU ID. 

Phaedrus

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4 minutes ago, phaedrus ut said:

I'm not sure I agree here.  The MTC is part of BYU.  The domain is https://www.mtc.byu.edu/ the hiring for employment at the MTC is all done through BYU and jobs posted at the  BYU.edu domain, and MTC employees are issued a BYU ID. 

Phaedrus

Does it matter to you, that Denson's Attorney already address the issue? 

Does it matter to you that Denson's atyorney stated he beleived she coukd get a fair trial?

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Just now, provoman said:

Does it matter to you, that Denson's Attorney already address the issue? 

Does it matter to you that Denson's atyorney stated he beleived she coukd get a fair trial?

I'm not implying anything wrong with his decision or ruling.  The case could be the one regarding the BYU police department that has recently been in the news or anything similar.  The judge is employed by BYU and the case involves his employer. To my inexperienced eyes it looks like there is potential for conflict.  When Solicitor General Rex Lee recused himself from the Bob Jones vs. The United States and potential conflict seemed much more subtle and indirect.

Phaedrus 

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7 hours ago, Thinking said:

I think your missing the point. The contention is that Bishop's alleged confessed transgressions should have kept the Church from giving him a calling that would put him in a position to repeat the transgression - presiding over women.

Let's say that a member has confessed to embezzling money from his employer and has served the appropriate legal sentence. He would like to have a calling. Should his bishop call him to be a ward clerk and put him in a position that might be too tempting?

Bingo!

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9 hours ago, Calm said:

But a fraud is a misrepresentation (perhaps it is different legally speaking) which would seem to indicate it is about communication and not authority or position to do harm.  Wouldn't that be more liability?

I would say that the communication is implied. Calling Bishop to the position of MTC President communicates that he is an appropriate person for the position.

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9 hours ago, Calm said:
Quote

I think your missing the point. The contention is that Bishop's alleged confessed transgressions should have kept the Church from giving him a calling that would put him in a position to repeat the transgression - presiding over women.

Let's say that a member has confessed to embezzling money from his employer and has served the appropriate legal sentence. He would like to have a calling. Should his bishop call him to be a ward clerk and put him in a position that might be too tempting?

But a fraud is a misrepresentation (perhaps it is different legally speaking) which would seem to indicate it is about communication and not authority or position to do harm.  Wouldn't that be more liability?

There are a few different species of fraud, the most common of which centers on a misrepresentation of fact by X to Y which Y reasonably relies upon, which reliance leads to Y incurring some sort of injury.

However, the species of fraud here is "fraudulent concealment."  That is, Ms. Denson is not accusing the Church of making an affirmative misrepresentation of fact, but of fraudulently concealing or failing to disclose a fact about which the Church had a duty to disclose.

Consider, for example, a daycare center that knowingly hires a caregiver with a history of striking children under her care and other serious misconduct.  The daycare center conceals or fails to disclose this caregiver's history to parents who patronize the daycare center.  The caregiver then severely injures a child.  The parents file a lawsuit, and quickly discover the caregiver's prior history, and also that the daycare center knew about that prior history.  The parents then ask the court to let them amend their complaint to include a "fraudulent concealment/nondisclosure" claim.

Would the court let them do this?  In my view, almost certainly yes.  The daycare center had a common law duty of care, a duty to disclose to parents that it had hired a caregiver with a history of violence toward children in her care.  This concealment/nondisclosure induced the parents into trusting the daycare center with the welfare of their child.  The child was then injured.  So a claim under such circumstances would be quite viable.

The claim as asserted by Ms. Denson, however, is quite another story.  Was Bishop really a "sexual predator?"  And if so, did the Church know about that?  And if so, when?

Unfortunately, the trail of evidence, for the most part, went cold long ago.  This is why we have statutes of limitation.

Thanks,

-Smac

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10 hours ago, Thinking said:

I think your missing the point. The contention is that Bishop's alleged confessed transgressions should have kept the Church from giving him a calling that would put him in a position to repeat the transgression - presiding over women.

Or put another way:

  • A) if Bishop had a history of sexual predation, and
  • B) if the Church knew about that history beforehand, and
  • C) if the Church nevertheless decided to put him in a position of authority and influence such as might lead to sexual predation (of, say, young female missionaries),
  • D) then there would, I think, be a duty to disclose.

That seems like an untenable position for the Church, but that's what the law requires.

Which is one of the reasons I am so skeptical about Ms. Denson's claims.  I think she will have a very hard time establishing the above "if" statements.  A very hard time, indeed.

Moreover, I continue to be flummoxed by the rationale of the Court in allowing the fraud claim to stand.  The statute of limitations issue continues to perplex.

Quote

Let's say that a member has confessed to embezzling money from his employer and has served the appropriate legal sentence. He would like to have a calling. Should his bishop call him to be a ward clerk and put him in a position that might be too tempting?

That would be up to the Church, I think.  After all, the Church is only imperiling its own money.  So there wouldn't be a duty owed to anyone else.

Nevertheless, I think the Church would not put this person into a situation where he might be tempted.

Thanks,

-Smac

Edited by smac97
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49 minutes ago, Thinking said:

I would say that the communication is implied. Calling Bishop to the position of MTC President communicates that he is an appropriate person for the position.

that is one of her fraud claims, but she knew the "fraud" of that "implied communication" when she was assaulted and avoided him for the remainder of her stay at the MTC.

As I understand it, her only existing claim is the concealment claim, that is 'The Church knew and did not tell me, Mckenna Denson"

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1 hour ago, provoman said:

that is one of her fraud claims, but she knew the "fraud" of that "implied communication" when she was assaulted and avoided him for the remainder of her stay at the MTC.

Yep.  That's why I don't get the Court's reasoning on the statute of limitations issue.  I guess I need to read the memorandum decision in more detail.

1 hour ago, provoman said:

As I understand it, her only existing claim is the concealment claim, that is 'The Church knew and did not tell me, Mckenna Denson"

Yes, that is her only pending claim.

Thanks,

-Smac

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1 hour ago, smac97 said:

Yep.  That's why I don't get the Court's reasoning on the statute of limitations issue.  I guess I need to read the memorandum decision in more detail.

Is it possible that Judge Kimball is being savvy and allowing the one complaint to advance, knowing that it doesn't stand a snowball's chance? Kind of like the British judge who allowed the suit against President Monson to actually advance before eviscerating and rebuking it? At the time, I was worried that that ridiculous suit even made it into court, but in hindsight, the beating and tongue-lashing the judge gave was worth it. 

That beats back canards about him being a shill who should have recused himself. Yes, judges are supposed to not take PR considerations into account and just objectively apply the law, but the reality is that some mine-field navigation is also required. You just don't want to be overturned by a higher jurisdiction!

I wonder if he figured that outright throwing the whole thing out would throw fuel on the conspiracy theory fires, and since it's dead in the water through discovery (assumption), no harm and some good can accrue by letting the one count advance. No harm, other than the cost.

Could the Church go after Denson for expenses if she loses outright? Might not be the best PR to do that, but I wondered if they are entitled to. 

Edited by rongo
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Just now, rongo said:

Is it possible that Judge Kimball is being savvy and allowing the one complaint to advance, knowing that it doesn't stand a snowball's chance? That beats back canards about him being a shill who should have recused himself. Yes, judges are supposed to not take PR considerations into account and just objectively apply the law, but the reality is that some mine-field navigation is also required. You just don't want to be overturned by a higher jurisdiction!

I had considered that.  I think Judge Kimball's assessment is probably either A) fairly straightforward, B) incorrect, or C) a combination of A and B.

Just now, rongo said:

I wonder if he figured that outright throwing the whole thing out would throw fuel on the conspiracy theory fires, and since it's dead in the water through discovery (assumption), no harm and some good can accrue by letting the one count advance. No harm, other than the cost.

Then he just kicked the can down the road.  Ms. Denson's case is plagued with problems.  The statute of limitations issue.  The decay/loss of extant evidence and witness recollections.  Ms. Denson's very poor personal credibility.  And . . . the priest/penitent privilege.

The Church's Motion to Dismiss could not really address the privilege issue, I think.  Now that discovery will proceed, that issue will come to the forefront, and probably fairly quickly.  Mr. Vernon will no longer be able to play to the cameras.  Now he has to present evidence.  He has to seek out evidence.  That means . . . a fight over discoverable information, with particular emphasis on any priest/penitent communications between Bishop and Elder Wells.

Just now, rongo said:

Could the Church go after Denson for expenses if she loses outright? Might not be the best PR to do that, but I wondered if they are entitled to. 

I don't think so.  And the Church wouldn't.  And if it did, I think the Court would say no.

Thanks,

-Smac

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from my fb feed

Federal judge refuses to dismiss claim against Mormon church in rape case

https://www.stgeorgeutah.com/news/archive/2018/08/14/apc-federal-judge-refuses-to-dismiss-claim-against-mormon-church-in-rape-case/#.W3MutehKhPY


"the court issues the following Memorandum Decision and Order GRANTING in part and DENYING in part the COP’s (mormon church)
Motion to Dismiss and GRANTING Bishop’s Motion
to Dismiss in its entirety.'
This is where McKenna won (FRAUDULENT CONCEALMENT BY THE mormon church): 
"The court therefore concludes that pursuant to Utah law, under the allegations of the complaint, Denson adequately investigated her claims. Denson reported her claims to her local Bishop, Stake President, and General Authority Carlos Asay. Carlos Asay allegedly told Denson that he would inform her of the outcome of the investigation, but never did. Despite her efforts, she was not able to uncover that the COP allegedly had knowledge that Bishop was a sexual predator prior to calling him as the MTC President. Accordingly, pursuant to the Plaintiff’s allegations, the statute of limitations did not begin until she confronted Bishop in December of 2017 and learned of the concealment"

"Accordingly, because Denson put forth effort in investigating her claims but was unable to discover that the COP had prior knowledge that Bishop was a sexual predator because of the COP’s failure to report back to her, she has satisfied the requirements in Colosimo to toll the statute of limitations"

"Accordingly, the court finds that Denson alleged enough facts in her complaint that she reasonably investigated her claims by reporting her abuse to multiple COP leaders, and that the COP concealed the fact that it allegedly knew that Bishop was a sexual predator."

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3 hours ago, changed said:

from my fb feed

Federal judge refuses to dismiss claim against Mormon church in rape case

https://www.stgeorgeutah.com/news/archive/2018/08/14/apc-federal-judge-refuses-to-dismiss-claim-against-mormon-church-in-rape-case/#.W3MutehKhPY


"the court issues the following Memorandum Decision and Order GRANTING in part and DENYING in part the COP’s (mormon church)
Motion to Dismiss and GRANTING Bishop’s Motion
to Dismiss in its entirety.'
This is where McKenna won (FRAUDULENT CONCEALMENT BY THE mormon church): 
"The court therefore concludes that pursuant to Utah law, under the allegations of the complaint, Denson adequately investigated her claims. Denson reported her claims to her local Bishop, Stake President, and General Authority Carlos Asay. Carlos Asay allegedly told Denson that he would inform her of the outcome of the investigation, but never did. Despite her efforts, she was not able to uncover that the COP allegedly had knowledge that Bishop was a sexual predator prior to calling him as the MTC President. Accordingly, pursuant to the Plaintiff’s allegations, the statute of limitations did not begin until she confronted Bishop in December of 2017 and learned of the concealment"

"Accordingly, because Denson put forth effort in investigating her claims but was unable to discover that the COP had prior knowledge that Bishop was a sexual predator because of the COP’s failure to report back to her, she has satisfied the requirements in Colosimo to toll the statute of limitations"

"Accordingly, the court finds that Denson alleged enough facts in her complaint that she reasonably investigated her claims by reporting her abuse to multiple COP leaders, and that the COP concealed the fact that it allegedly knew that Bishop was a sexual predator."

This is one part that confuses me.  Why does whether or not Denson attempted to investigate the claims personally (but couldn't find any info) have any impact on whether or not the church is liable for putting Bishop in a position of authority knowing he was a threat to women?

Any lawyers available to explain?

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Quote

Kind of like the British judge who allowed the suit against President Monson to actually advance before eviscerating and rebuking it? 

My memory is that SheilaUK, a poster here and a barrister/solicitor there (can't remember which one) said British law was different than ours and that was why it was allowed rather than it being a case of personal choice by the judge (she was addressing the claim by Phillips that the judge found his claims credible).

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9 hours ago, provoman said:

that is one of her fraud claims, but she knew the "fraud" of that "implied communication" when she was assaulted and avoided him for the remainder of her stay at the MTC.

No. All she knew at that time was that Bishop had assaulted her. She did not know that there had been allegations before he was called to be MTC President. If Denson was Bishop's first assault, she would have no fraud claim for concealment.

Edited by Thinking
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1 hour ago, Thinking said:

No. All she knew at that time was that Bishop had assaulted her. She did not know that there had been allegations before he was called to be MTC President. If Denson was Bishop's first assault, she would have no fraud claim for concealment.

Please read Densons complaint

Section VI FOURTH CAUSE OF ACTION: COMMON LAW FRAUD....i.e. because Bishop was the MTC Pres. the Church implied he was safe, trudtworthy, etc. 

Here is why the common law fraud claim fails, After the assault, Denson knew or should have known, by her actions demonstrated she knew - avoided Bishop for the remainder of her time at the MTC - that Bishop was not safe, honorable etc....She knew that in 1984, she had 3 years to file claim.

 

Section VII FIFTH CAUSE OF ACTION: Fraudulent Concealment...i.e. Bishop admitted he confessed all his sins to Elders Wells in 1978, therefore wChurch knew Bishop wad not safe, honorable etc; the Church knew and concealed Bishop's sins from Denson PARAGRAPH 69 Because of the concealment or failure to disclose, Denson trusted Bishop.

The Fifth cause of action is about what Deson claims the Church did not disclose to her.

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4 hours ago, bluebell said:

This is one part that confuses me.  Why does whether or not Denson attempted to investigate the claims personally (but couldn't find any info) have any impact on whether or not the church is liable for putting Bishop in a position of authority knowing he was a threat to women?

Any lawyers available to explain?

She is not suing because the Church put him as tbe MTC Pres, she is suing because the Church "concealment or failure to disclose" to her, Bishops confession to Elder Wells.

Her claim is basically that because she did not known the details of Bishops confession she was not able to make an informed decision about entering the MTC nor could make an informed decision about trusting Bishop. because she could not make an informed decision she trusted Bishop because of his leadership position.

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18 minutes ago, provoman said:

Please read Densons complaint

I read it. It's apparent that we understand things differently.

McKenna Denson vs LDS Church & Bishop

65. "DENSON did not know, prior to her abuse, that BISHOP was a sexual predator and a sex addict, nor that Defendant COP’s MTC was an untrustworthy and unsafe environment."

18 minutes ago, provoman said:

Here is why the common law fraud claim fails, After the assault, Denson knew or should have known, by her actions demonstrated she knew - avoided Bishop for the remainder of her time at the MTC - that Bishop was not safe, honorable etc....She knew that in 1984, she had 3 years to file claim.

Avoiding her abuser does not mean that she knew about the prior allegations. That the Church knew about the prior allegations is the issue.

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11 minutes ago, Thinking said:

I read it. It's apparent that we understand things differently.

McKenna Denson vs LDS Church & Bishop

65. "DENSON did not know, prior to her abuse, that BISHOP was a sexual predator and a sex addict, nor that Defendant COP’s MTC was an untrustworthy and unsafe environment."

Avoiding her abuser does not mean that she knew about the prior allegations. That the Church knew about the prior allegations is the issue.

and you wonder who "the Church" is? is it Elder Wells? The First Presidency?  how would the lawyers establish who knew what and when (when people are dead except for Elder Wells) and if Bishop was in fact all this stuff, or are they assuming he's guilty- glad i'm no lawyer!

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