Denson's Lawsuit Dismissed by Federal Judge

[phaedrus ut]

One thing that really surprised me here is Judge Dale Kimball is not only a federal judge but also current faculty at BYU.  Would one of the lawyers on here opine about how he wouldn't have a conflict? 

Phaedrus

[PacMan]

8 minutes ago, phaedrus ut said:

One thing that really surprised me here is Judge Dale Kimball is not only a federal judge but also current faculty at BYU.  Would one of the lawyers on here opine about how he wouldn't have a conflict? 

Phaedrus

If Vaughn Walker (a gay California judge) can adjudicate In re Marriage Cases (the California gay marriages cases), then Kimball doesn't have a problem.  The bar to find conflict to offend due process is actually quite high.

[smac97]

10 minutes ago, phaedrus ut said:

One thing that really surprised me here is Judge Dale Kimball is not only a federal judge but also current faculty at BYU.  Would one of the lawyers on here opine about how he wouldn't have a conflict? 

Phaedrus

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.  The LDS Church (of which he is a member) is obviously a party, but judges are, absent contrary evidence, assumed to be adhering to the Code of Conduct for United States Judges.

So a male judge is not going to be presumed to have a "conflict" in adjudicating a dispute involving a male litigant, a black judge is not going to be presumed to have a "conflict" in adjudicating a dispute involving a black litigant, and so on.

A judge being an adjunct professor at a law school that is part of a university that is owned by the LDS Church is not something that, I think, would count as a "conflict."  See 28 U.S. Code § 455 ("Disqualification of justice, judge, or magistrate judge"):

Quote

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b)He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5)He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

(c) A judge should inform himself about his personal and fiduciaryfinancial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

...

(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.

Thanks,

-Smac

[PacMan]

None of this makes sense.  Fraudulent concealment is not a claim.  It's a defense against the statute of limitations.  Colosimo v. Roman Catholic Bishop of Salt Lake City, 2007 UT 25, 156 P.3d 806, (2007) ("Under the fraudulent concealment doctrine, Utah courts toll the running of the limitations period if 'a plaintiff does not become aware of the cause of action because of the defendant's concealment or misleading conduct.').  Beyond fraudulent concealment, she raises only 3 other claims against the Church -- all of which were dismissed.

In other words, she successfully evaded the statute of limitations to bring . . .what, exactly?  She has no cognizable claims left.

I really like Judge Kimball as both a judge and as a person.  But he is off in left field on this one.  The case should be dismissed.

[provoman]

29 minutes ago, phaedrus ut said:

One thing that really surprised me here is Judge Dale Kimball is not only a federal judge but also current faculty at BYU.  Would one of the lawyers on here opine about how he wouldn't have a conflict? 

Phaedrus

Why not ask Craig Vernon, who addressed the issue at the news conference held when the case was filed.

[smac97]

12 minutes ago, PacMan said:

None of this makes sense.  Fraudulent concealment is not a claim.  It's a defense against the statute of limitations.  Colosimo v. Roman Catholic Bishop of Salt Lake City, 2007 UT 25, 156 P.3d 806, (2007) ("Under the fraudulent concealment doctrine, Utah courts toll the running of the limitations period if 'a plaintiff does not become aware of the cause of action because of the defendant's concealment or misleading conduct.').  Beyond fraudulent concealment, she raises only 3 other claims against the Church -- all of which were dismissed.

"Fraudulent concealment" is both a defense and a cause of action.  As a cause of action, it's a species of fraud.  “The three elements of fraudulent concealment are…(1) there is a legal duty to communicate information, (2) the nondisclosed information is known to the party failing to disclose, and (3) the nondisclosed information is material.” Yazd v. Woodside Homes Corp., 2006 UT 47, ¶ 35, 143 P.3d 283.

12 minutes ago, PacMan said:

In other words, she successfully evaded the statute of limitations to bring . . .what, exactly?  She has no cognizable claims left.

I really like Judge Kimball as both a judge and as a person.  But he is off in left field on this one.  The case should be dismissed.

I really don't get the legal theory here.  Ms. Denson is claiming that the fraudulently concealed information was that Bishop was a sexual predator.  She then is purportedly sexually assaulted by Bishop in 1984.  From today's memorandum decision

Quote

Denson’s fraudulent concealment claim is based on the COP representing that Bishop was a safe, honorable, and trustworthy person when the COP had prior knowledge that he was a sexual predator. The COP argues that the statute of limitations has run because Denson knew when she was raped that the COP’s representations that Bishop was safe, honorable, and trustworthy were not true.

...

The COP argues that Denson’s case is similar to Dummar because she had knowledge at the time she was sexually assaulted that the COP’s representations that Bishop was safe, honorable, and trustworthy were not true.  The COP argues that such knowledge is similar to Dummar where the plaintiff had knowledge that the deceased man had actually left his hotel room because the plaintiff had met him on the side of the road. However, this holding would be inharmonious with the Utah Supreme Court’s holding in Colosimo.

Although the court in Colosimo ultimately dismissed the plaintiff’s claims as time barred, it discussed circumstances when the statute of limitations would be tolled. The court held “once a plaintiff has made a prima facie showing of fraudulent concealment, the plaintiff will be charged with constructive notice of the facts forming the basis of a cause of action only at that point which a plaintiff, reasonably on notice to inquire into a defendant’s wrongdoing, would have, with due diligence, discovered the facts forming the basis for the cause of action despite the defendant’s efforts to conceal it.” Id. at 816.

...

If the COP’s interpretation of Dummar is correct that the plaintiff knew of the fraud once she was sexually assaulted, then the Utah Supreme Court’s guidance on when the statute of limitations may be tolled on sexual assault claims against an institutional defendant would not apply. A victim of sexual assault would never be able to toll the statute of limitations against an institutional defendant because the victim would always know at the time they were sexually assaulted, absent repressed memories, that any representation made by the institutional defendant about the safety of the individual at issue was false. 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.

That last paragraph is befuddling to me.  

The gist of a fraud claim is deceit.  Trickery.  False or withheld information that is important.  In this case, the deceit / trickery / false-or-withheld information pertained to Mr. Bishop's purported sexual predation.  How is it that the Court could conclude that she did not know about this after he allegedly assaulted her in 1984?  How did the assault not trigger a duty for her to "investigate" (file a complaint with the police, file a lawsuit, whatever)?

Thanks,

-Smac

[Tacenda]

56 minutes ago, phaedrus ut said:

One thing that really surprised me here is Judge Dale Kimball is not only a federal judge but also current faculty at BYU.  Would one of the lawyers on here opine about how he wouldn't have a conflict? 

Phaedrus

I knew there was a reason I was concerned now remember reading it, not sure what to think now. 

Edited August 13, 2018 by Tacenda

[PacMan]

34 minutes ago, smac97 said:

"Fraudulent concealment" is both a defense and a cause of action.  As a cause of action, it's a species of fraud.  “The three elements of fraudulent concealment are…(1) there is a legal duty to communicate information, (2) the nondisclosed information is known to the party failing to disclose, and (3) the nondisclosed information is material.” Yazd v. Woodside Homes Corp., 2006 UT 47, ¶ 35, 143 P.3d 283.

I really don't get the legal theory here.  Ms. Denson is claiming that the fraudulently concealed information was that Bishop was a sexual predator.  She then is purportedly sexually assaulted by Bishop in 1984.  From today's memorandum decision

That last paragraph is befuddling to me.  

The gist of a fraud claim is deceit.  Trickery.  False or withheld information that is important.  In this case, the deceit / trickery / false-or-withheld information pertained to Mr. Bishop's purported sexual predation.  How is it that the Court could conclude that she did not know about this after he allegedly assaulted her in 1984?  How did the assault not trigger a duty for her to "investigate" (file a complaint with the police, file a lawsuit, whatever)?

Thanks,

-Smac

Smac,

Without an element of damages, it's not a cause of action.  If there's no recovery, there's no standing, and no subject matter jurisdiction.

[smac97]

6 minutes ago, PacMan said:

Smac,

Without an element of damages, it's not a cause of action.  If there's no recovery, there's no standing, and no subject matter jurisdiction.

It appears that the element of damages is inferred.  From the Yazd case (¶ 10):

Quote

In order to prevail on a claim of fraudulent concealment, a plaintiff must prove "(1) that the nondisclosed information is material, (2) that the nondisclosed information is known to the party failing to disclose, and (3) that there is a legal duty to communicate." Mitchell v. Christensen, 2001 UT 80, ¶ 9,  31 P.3d 572.

I just checked Westlaw and found quite a few cases that address "fraudulent concealment" as a cognizable claim or cause of action.  Here are just a few:

• 2018 WL 3322749 
• 2018 WL 2055466 
• 2015 WL 6438902 
• 2015 WL 4651548 

An instructive case may be Hermansen v. Tasulis, 2002 UT 52, 48 P.3d 235.  Damages stemming from fraudulent concealment are, I think, addressed there.

Thanks,

-Smac

[provoman]

2 hours ago, smac97 said:

It appears that the element of damages is inferred.  From the Yazd case (¶ 10):

I just checked Westlaw and found quite a few cases that address "fraudulent concealment" as a cognizable claim or cause of action.  Here are just a few:

• 2018 WL 3322749 
• 2018 WL 2055466 
• 2015 WL 6438902 
• 2015 WL 4651548 

An instructive case may be Hermansen v. Tasulis, 2002 UT 52, 48 P.3d 235.  Damages stemming from fraudulent concealment are, I think, addressed there.

Thanks,

-Smac

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"

Edited August 14, 2018 by provoman

[provoman]

 

7 hours ago, jkwilliams said:

I doubt anyone is surprised about the abuse suit being dismissed, but I wonder on what basis the fraud case is being allowed to continue. 

There are only two people who know what was said in 1978, Elder Wells and Bishop. Treating it as a true that Bishop confessed his sins to Wells, then yes priest/penitent communication should bar Wells from having to speak to any particular thing Bishop confessed. 

[smac97]

8 minutes ago, straightshooter said:

Not just that he’s a member of the church, but that he’s currently working at BYU is a pretty clear conflict of interest for non-LDS people outside the church. 

 

http://friendlyatheist.patheos.com/2018/07/24/judge-in-sex-abuse-case-against-former-mormon-leader-is-employed-by-the-church/

Would a black judge have a presumptive conflict of interest if one of the parties was black? Would a Jewish judge have a presumptive conflict of interest if one of the litigants was Jewish? What a female judge have a presumptive conflict of interest if one of the litigants was a woman?

The uninformed opinions of bystanders is not the test by which a conflict of interest for a judge is determined.

[USU78]

10 minutes ago, straightshooter said:

Not just that he’s a member of the church, but that he’s currently working at BYU is a pretty clear conflict of interest for non-LDS people outside the church. 

 

http://friendlyatheist.patheos.com/2018/07/24/judge-in-sex-abuse-case-against-former-mormon-leader-is-employed-by-the-church/

You and they are pounding the table. Smac cited the actual judicial standards.

I daresay what you and they are actually doing is revisiting the highly offensive attempt to gain ground towards prohibiting Christian participation in the public square.

This goes back to the outrageous trial judge's dicta adopted by the 9th circuit but slapped down by scotus in the Prop 9 case.

[provoman]

10 minutes ago, straightshooter said:

No, I’m not. I’m LDS and try to tell my non-LDS friends that we don’t live in a theocracy in Utah. I don’t think it should be difficult to find a judge who hasn’t taken the oaths in the temple, which is unique to Mormonism, not other Christian churches. That on top of his church employment is troubling for a lot of members.

An exmormon Judge broke their covenants; thus an exmormon cannot hold any position that requires an Oath of Office because the exmormon cannot be trusted to uphold oaths. Seems fair doesn't it?

[smac97]

14 minutes ago, straightshooter said:

No, I’m not. I’m LDS and try to tell my non-LDS friends that we don’t live in a theocracy in Utah.

And we don't presumptively accuse judges of having a conflict of interest because of their race or gender or religious affiliation. Have you told your friends that?

14 minutes ago, straightshooter said:

I don’t think it should be difficult to find a judge who hasn’t taken the oaths in the temple, which is unique to Mormonism, not other Christian churches. That on top of his church employment is troubling for a lot of members.

Phbbt.

[smac97]

5 minutes ago, straightshooter said:

Does a black man take an oath to God that they will defend black people? Does a gay person take an oath to God to defend homosexuals? If these two groups, in addition to the aforementioned, did work for activist organizations specifically related to their protected class, should they then recuse themselves? 

Prevarication on your part.

I think I'll just save some time and report you to the mods.

[USU78]

16 minutes ago, straightshooter said:

No, I’m not. I’m LDS and try to tell my non-LDS friends that we don’t live in a theocracy in Utah. I don’t think it should be difficult to find a judge who hasn’t taken the oaths in the temple, which is unique to Mormonism, not other Christian churches. That on top of his church employment is troubling for a lot of members.

Now that there is seriously funny

[USU78]

1 minute ago, smac97 said:

I think I'll just save some time and report you to the mods.

Naw. Play with your mouse.

[Calm]

25 minutes ago, straightshooter said:

Does a black man take an oath to God that they will defend black people? Does a gay person take an oath to God to defend homosexuals? If these two groups, in addition to the aforementioned, did work for activist organizations specifically related to their protected class, should they then recuse themselves? 

Prevarication on your part.

 

We don't take an oath to support the Church committing fraud or anything else illegal

[USU78]

18 minutes 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.

I can see how lawyers engaging in shoptalk would be unsettling.

[Duncan]

53 minutes ago, straightshooter said:

And yet, the church leaders continue to support the Book of Abraham. 

Abraham Lincoln? I highly doubt he was a member of the Church in this life

[USU78]

10 minutes ago, Duncan said:

Abraham Lincoln? I highly doubt he was a member of the Church in this life

Isn't there a ward house on the Plains of Abraham?

[Duncan]

18 minutes ago, USU78 said:

Isn't there a ward house on the Plains of Abraham?

there used to be, now it's a gift shop and an interpretive centre☺️ best licorice I've ever tasted😍

Edited August 14, 2018 by Duncan

[Calm]

1 hour ago, straightshooter said:

And yet, the church leaders continue to support the Book of Abraham. 

Talk about a truckload of assumptions....

[provoman]

2 hours ago, straightshooter said:

Unless it can be proven that those covenants were made under the pretense of fraud. That isn’t difficult to prove, friend. 

So now the exmormon judge is an oath breaker and lacks in judgement, as he beleived something that you claim is not difficult prove a fraud....yeah oath breaker and easily deceived are exactly the qualities society wants in Judges of law...smh