Tag Archives: #ASSE

2006 Jan-Mar: Federal government seeks to eliminate sexual abuse and exploitation

FOREIGN EXCHANGE STUDENTS: FEDERAL GOVERNMENT SEEKS TO ELIMINATE SEXUAL ABUSE AND EXPLOITATION

Since the Mutual Educational and Cultural Exchange Act of 1961, the U.S. Department of State has been active in promoting educational and cultural exchanges, especially at the high school level where some 1,450 program sponsors facilitate the entry of more than 275,000 foreign exchange students each year. The students are secondary level students. Most of the students are 17 or 18 years of age, but some participants are as young as 15 years of age and often are away from home for the first time.

The Department of State has amended 22 C.F.R. § 62.25, effective May 4, 2006, in an attempt to provide greater security for foreign exchange students. For Program Sponsors, their personnel must be “adequately trained and supervised” and that any person who has “direct personal contact with exchange students” must be “vetted through a criminal background check.” Program Sponsors also cannot make student placements “beyond 120 miles of the home of a local organizational representative authorized to act on the sponsor’s behalf in both routine and emergency matters…” An “organizational representative” cannot serve as “both host family and area supervisor for any exchange student participant.” In addition, there must be, at a minimum, monthly schedules of personal contact with the student and the host family. The school must have contact information for the local organizational representative. § 62.25(d).

Prospective foreign exchange students must be secondary students in their home country and not have completed more than eleven (11) years of primary and secondary study (kindergarten excluded), or be at least 15 years of age but not older than 18 years and six months of age as of the program start date. § 66.25(e).

The Sponsor must “secure prior written acceptance for the enrollment of any exchange student participant in a United States public or private secondary school.” § 66.25(f)(1). In addition, the Sponsor “must provide the school with a translated ‘written English language summary’ of the exchange student’s complete academic course work prior to commencement of school, in addition to any additional documents the school may require. Sponsors must inform the prospective host school of any student who has completed secondary school in his/her country.” § 66.25(f)(4). Also, Sponsors “may not facilitate the enrollment of more than five exchange students in one school unless the school itself has requested, in writing, the placement of more than five students.” § 66.25(f)(5).

Sponsors are also required to better prepare exchange students, especially “how to identify and report sexual abuse or exploitation.” The exchange student will also receive a “detailed profile of the host family” as well as a “detailed profile of the school and community” where the student will participate. The exchange student will be issued an identification card, with contact numbers should there be an emergency. § 66.25(g).

Host families must be screened, which must include “an in-person interview with all family members residing in the home.” A host family must have a good reputation and character. This must be supported by at least two (2) personal references “from the school or community attesting to the host family’s good reputation and character.” Each member of the host family who is 18 years of age or older must undergo a criminal background check. Also, “[e]xchange students are not permitted to reside with relatives.” § 66.25(j).

Sponsors must report immediately to the Department of State “any incident or allegation involving the actual or alleged sexual exploitation or abuse of an exchange student participant.” This would be in addition to any State or local reporting requirement. § 66.25(m).

Tragedy In Wisconsin

Although the Department of State did not indicate any precipitating event for the amendment of its regulations to require more direct involvement of Sponsors and the closer scrutiny of host families, the case of Kristin Beul, a 16-year-old German exchange student, and her tragic placement in a dysfunctional Wisconsin family had to be a primary motivation.

In Beul v. ASSE International, Inc., 233 F.3d 441 (7th Cir. 2000), the U.S. 7th Circuit Court of Appeals let stand a jury verdict of $649,000 against a non-profit corporation that operates international student exchange programs. Beul paid ASSE a $2,000 fee in order to secure a year in the United States. She was placed with the Bruce family in Wisconsin. The family consisted of Richard, the father (40 years of age); his wife; and their 13-year-old daughter. The Bruce family was selected by Marianne Breber, ASSE’s Area Representative.

As a Sponsor, ASSE was subject to regulations by the Department of State, U.S. Information Agency, that require Sponsors to train their agents, monitor the progress and welfare of the exchange visit, and require a regular schedule of personal contact with the student and the host family. Violations of these regulations are evidence of negligence as they define the duty of care a Sponsor owes to an exchange student. See 22 C.F.R. §§ 62.10(e)(2); 62.25(d)(1), (4). 233 F.3d at 444-45.

Beul arrived in Wisconsin from Germany in September of 1995. She was met at the airport by the father of the host family, Richard Bruce. Breber did not go to the airport to meet her. In fact, from September to January 21, 1996, Breber met only once with Beul and that was at a shopping mall for a brief orientation. Berber gave Beul her telephone number. Breber did call the host family a few times and spoke once or twice with Beul during these conversation, but Breber made no effort to ensure her conversations with Beul occurred outside the presence of members of the host family. Breber never spoke with Mrs. Bruce, who had concerns her husband “seemed to be developing an inappropriate relationship with Kristin.” Id. at 445-46.

Beul had “led a sheltered life in Germany. She had had no sexual experiences at all and in fact had had only two dates in her lifetime.” Id. at 446. In November of 1995, Bruce entered her bedroom and raped her. This began “a protracted sexual relationship.” In the following months, Bruce would call the high school Beul was supposed to be attending and report her ill. With his wife at work and his daughter at school, Bruce and Beul could continue their sexual relationship. By February of 1996, Bruce had reported Beul as ill 27 times. He showed Beul a gun and told her that should she tell anyone about their relationship, he would kill himself. Id.

In January, Bruce called Breber and told her that his wife “appeared to be jealous of the time” that he spent with Beul. He invited Breber to dinner on January 21, 1996. During this time, Breber did not meet privately with either Beul or Mrs. Bruce, and she did not observe anything out of the ordinary. In February, Mrs. Bruce told Breber that she and her husband were getting divorced, and Breber found another host family for Beul. Beul did not want to leave the Bruce residence. Breber brought a sheriff’s deputy to the Bruce house to remove Beul. During this time, the deputy asked Beul–in front of Bruce–whether any inappropriate sexual activity had occurred. Beul answered “no.” Breber learned that same date of Beul’s many absences from school when Breber called to indicate Beul would be living with a different host family. Id.

Beul lived with Breber for a few days until the new host family situation could be finalized. During the period, Breber never inquired about a possible sexual relationship between Beul and Bruce. Breber advised the host family that Beul was not to contact Bruce for a month, but Breber never informed Bruce he should not contact Beul. They continued to communicate. Beul “decided that she was in love with Bruce and considered herself engaged to him.” Id.

In April, Mrs. Bruce discovered some of Beul’s love letters to Bruce and alerted law enforcement. A deputy interviewed Bruce. Bruce had a previous conviction for having sex with a sixteen-year-old girl. The day after the interview, Bruce killed himself, leaving a suicide note expressing fear of jail. “It is undisputed that the events culminating in Bruce’s suicide inflicted serious psychological harm on Kristin[.]” Id.

The 7th Circuit rejected ASSE’s argument that Beul’s determination to conceal her relationship with Bruce negated any failure of ASSE’s agent–Breber–to maintain closer contact with Beul, the Bruce family, and the high school. There is no causal relation between ASSE’s negligence and Beul’s harm, ASSE argued.

But it is improbable, and the jury was certainly not required to buy the argument. Suppose Breber had inquired from the school how Kristin was doing–a natural question to ask about a foreigner plunged into an American high school. She would have learned of the numerous absences, would (if minimally alert) have inquired about them from Kristin, and would have learned that Kristin had been “ill” and that Richard Bruce had been home and taken care of her. At that point the secret would have started to unravel.

Id. at 447. The 7th Circuit opined that the high school would not be liable for the consequences of Bruce’s sexual activity with Beul, even if the high school should have reported her frequent absences to Breber. The criminal sexual activity and resulting suicide were not foreseeable by the school.

But part of ASSE’s duty and Breber’s function was to protect foreign girls and boys from sexual hanky-panky initiated by members of host families. Especially when a teenage girl is brought to live with strangers in a foreign county, the risk of inappropriate sexual activity is not so slight that the organization charged by the girl’s parents with the safety of their daughter can be excused as a matter of law from making a responsible effort to minimize the risk. [Citations omitted.] Sexual abuse by stepfathers is not uncommon [citation omitted], and the husband in a host family has an analogous relationship to a teenage visitor living with the family.

Id. at 448. The court also found that ASSE was “standing in the shoes of the parents of a young girl living in a stranger’s home far from her homeland and could reasonably be expected to exercise the kind of care that the parents themselves would exercise if they could to protect their 16-year-old daughter from the sexual pitfalls that lie about a girl of that age in those circumstances. ASSE assumed a primary role in the protection of the girl.” Id.

In Indiana

Indiana has a statutory reference to foreign exchange students. It can be found at I.C. § 20-26-11-10(b). The relevant language is reproduced below.

I.C. § 20-26-11-10 Tuition for Children of Certain State Employees and Foreign Exchange Students

* * *

(b) A foreign student visiting in Indiana under any student exchange program approved by the state board is considered a resident student with legal settlement in the school corporation where the foreign exchange student resides. The student may attend a school in the school corporation in which the family with whom the student is living resides. A school corporation that receives a foreign student may not be paid any transfer tuition. The school corporation shall include the foreign student in computations to determine the amount of state aid that it is entitled to receive.

In essence, a foreign exchange student placed with an Indiana host family through an approved student exchange program has “legal settlement” in the public school district where the host family resides and may attend the public school without payment of transfer tuition. The statutory provision does not address a host of other concerns, such as whether a foreign exchange student who completes all graduation requirements (including passing the Graduation Qualifying Examination) can receive a high school diploma (the student can); who determines whether a foreign exchange student has met all State and local graduation requirements (the local public school district does); and who is responsible for providing to the public school district a translation of the student’s transcript from the student secondary school program in the student’s home country (under federal regulations, it is the Sponsor’s responsibility, see supra).

The Indiana Department of Education also maintains information for schools, Sponsors, and students at its web site. See http://www.doe.state.in.us/opd/studentexchange/stu_exch.html. The web site contains a Question-and-Answer document on various issues as well as links to pertinent federal agencies involved or interested in foreign exchange students.

1999 Jul 29: Former exchange student who had affair suing program

BEUL v. ASSE INTERN., INC.No. 98-C-426.

233 F. 3d 441 – Kristin Beul, et al. v. Asse International, Inc., et al.

Red highlight added by me

Asse International appeals court decision

233 F.3d 441 (7th Cir. 2000)

Kristin Beul, et al., Plaintiffs-Appellees,
v.
ASSE International, Inc., et al., Defendants-Appellants,

No. 99-3978

In the United States Court of Appeals For the Seventh Circuit

Argued September 7, 2000
Decided November 15, 2000

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98-C-426–Myron L. Gordon, Judge.

Before Bauer, Posner, and Evans, Circuit Judges.

Posner, Circuit Judge.

  1. In this diversity suit for negligence, governed (so far as the substantive issues are concerned) by Wisconsin law, the jury returned a verdict finding that plaintiff Kristin Beul’s damages were $1,100,000 and that she was 41 percent responsible for them; in accordance with the verdict, judgment was entered against defendant ASSE International for $649,000 (59 percent of $1.1 million). The other parties can be ignored. The appeal raises issues of both tort law and civil procedure.
  2. The defendant is a nonprofit corporation that operates international student exchange programs. For a fee of $2,000 it placed Kristin, a 16-year-old German girl who wanted to spend a year in the United States, with the Bruce family of Fort Atkinson, Wisconsin. The family, which consisted of Richard Bruce, age 40, his wife, and their 13-year-old daughter, had been selected by Marianne Breber, the defendant’s Area Representative in the part of the state that includes Fort Atkinson. Breber is described in the briefs as a “volunteer,” not an employee; the only payment she receives from ASSE is reimbursement of her expenses. Nothing in the appeal, however, turns either on her “volunteer” status or on ASSE’s nonprofit status. Charities are not immune from tort liability in Wisconsin, Kojis v. Doctors Hospital, 107 N.W.2d 131 (Wis. 1961), and ASSE does not deny that if Breber was negligent it is liable for her negligence under the doctrine of respondeat superior, even though she was not an employee of ASSE. The doctrine is nowadays usually described as making an employer liable for the torts of his employees committed within the scope of their employment, but strictly speaking the liability is that of a “master” for the torts of his “servant” and it extends to situations in which the servant is not an employee, provided that he is acting in a similar role, albeit as a volunteer. E.g., Heims v. Hanke, 93 N.W.2d 455, 457- 58 (Wis. 1958), overruled on other grounds by Butzow v. Wausau Memorial Hospital, 187 N.W.2d 349, 353-54 (Wis. 1971); Morgan v. Veterans of Foreign Wars, 565 N.E.2d 73, 77 (Ill. App. 1990); Restatement (Second) of Agency sec. 225 (1958). In Morgan, as in this case, the defendant was a charity.
  3. There is also no argument that the contract between ASSE and Kristin’s parents is the exclusive source of ASSE’s legal duties to Kristin. Negligence in the performance of a contract that foreseeably results in personal injury, including as here emotional distress, is actionable under tort law. See, e.g., Kuehn v. Childrens Hospital, 119 F.3d 1296 (7th Cir. 1997). As we pointed out in Rardin v. T & D Machine Handling, Inc., 890 F.2d 24, 29 (7th Cir. 1989), “tort law is a field largely shaped by the special considerations involved in personal-injury cases, as contract law is not. Tort doctrines are, therefore, prima facie more suitable for the governance of such cases than contract doctrines are” even when victim and injurer are linked by contract. See also Fireman’s Fund American Ins. Cos. v. Burns Electronic Security Services, Inc., 417 N.E.2d 131, 134 (Ill. App. 1980).
  4. As the sponsor of a foreign exchange student, ASSE was subject to regulations of the United States Information Agency that require sponsors to train their agents, “monitor the progress and welfare of the exchange visit,” and require a “regular schedule of personal contact with the student and host family.” 22 C.F.R. sec.sec. 514.10(e)(2), 514.25 (d)(1), (4) (now sec.sec. 62.10(e)(2), 62.25(d)(1), (4)). These regulations are intended for the protection of the visitor, see “Exchange Visitor Program,” 58 Fed. Reg. 15,180, 15,190 (1993) (statement of USIA accompanying promulgation of 26 C.F.R. sec. 514.25), and the jury was therefore properly instructed, under standard tort principles not challenged by ASSE, that it could consider the violation of them as evidence of negligence. There is no argument that the regulations create a private federal right of suit that would allow the plaintiffs to sue ASSE under the federal-question jurisdiction of the federal courts (and we have found no case suggesting there is such a right), or that Wisconsin is legally obligated to use the regulations to define the duty of care of a sponsor sued under state tort law. (In other words, there is no argument that the federal regulations have preemptive force in state tort litigation.) But the district court was entitled to conclude that a state court would look to the regulations for evidence of the sponsor’s duty of care. Courts in tort cases commonly take their cues from statutes or regulations intended to protect the safety of the class to which the tort plaintiff belongs. See, e.g., Bennett v. Larsen Co., 348 N.W.2d 540, 548-49 (Wis. 1984).
  5. ASSE is also a member of a private association of sponsors of foreign exchange students, the Council on Standards for International Educational Travel, which requires members to “maintain thorough, accurate, and continual communication with host families and school authorities.” A jury could reasonably consider the Council’s statement as additional evidence of the standard of care applicable to sponsors and it could also accept the plaintiff’s argument that due care required Breber to try to develop rapport with Kristin so that Kristin would trust and confide in her and so that Breber could pick up any signals of something amiss that Kristin might be embarrassed to mention unless pressed.
  6. Kristin Beul arrived in Wisconsin from Germany on September 7, 1995, and was met at the airport by Richard Bruce and his daughter. Marianne Breber did not go to the airport to meet Kristin. In fact, apart from a brief orientation meeting at a shopping mall in September with Kristin and one other foreign exchange student, at which Breber gave Kristin her phone number, she didn’t meet with Kristin until January 21 of the following year– under unusual circumstances, as we’ll see. She did call the Bruce home a few times during this period and spoke briefly with Kristin once or twice, but she made no effort to make sure that Kristin was alone when they spoke. She would ask in these calls how Kristin was doing and Kristin would reply that everything was fine. Breber did not talk to Mrs. Bruce, who would have told her that she was concerned that her husband seemed to be developing an inappropriate relationship with Kristin.
  7. Kristin had led a sheltered life in Germany. She had had no sexual experiences at all and in fact had had only two dates in her lifetime. On November 17, 1995, Richard Bruce, who weighed almost 300 pounds and who was alone at home at the time except for Kristin, came into the loft area in which she slept and raped her.
  8. This was the start of a protracted sexual relationship. In the months that followed, Bruce frequently would call the high school that Kristin was attending and report her ill. Then, with Mrs. Bruce off at work and the Bruce’s daughter at school, Bruce would have sex with Kristin. By February 22, Kristin had been absent 27 days from school. Bruce brandished a gun and told Kristin that he would kill himself if she told anyone what they were doing together.
  9. Curiously, in January Bruce and Kristin called Marianne Breber and told her that Mrs. Bruce appeared to be jealous of the time that her husband was spending with Kristin. Bruce invited Breber to dinner on January 21. Breber did not meet privately with either Kristin or Mrs. Bruce on that occasion, and she observed nothing untoward. In February, however, Mrs. Bruce told Breber that she and her husband were getting divorced, and Breber forthwith found another host family to take in Kristin. Kristin didn’t want to leave the Bruce home, but on February 22 Breber arrived there with a sheriff’s deputy to remove Kristin. The deputy asked Kristin in the presence of Richard Bruce and his daughter whether there was any inappropriate sexual activity between Richard and Kristin, and Kristin answered “no.” The same day Breber, upon calling Kristin’s school to tell them that Kristin would be out for a few days in connection with her change of residence, learned for the first time of Kristin’s many absences.
  10. Kristin lived with Breber for a few days between host families, but Breber didn’t use the occasion to inquire about any possible sexual relationship between Kristin and Bruce. Breber told the new host family that Kristin was not to contact Bruce for a month, but she did not tell Bruce not to have any contact with Kristin. They continued to correspond and talk on the phone. Kristin had decided that she was in love with Bruce and considered herself engaged to him.
  11. In April, Mrs. Bruce discovered some of Kristin’s love letters and alerted the authorities. A sheriff’s deputy interviewed Bruce. The next day Bruce, who had committed a misdemeanor by having sex with a 16 year old, Wis. Stat. sec. 948.09, killed himself, leaving a note expressing fear of jail. It is undisputed that the events culminating in Bruce’s suicide inflicted serious psychological harm on Kristin; the jury’s assessment of her damages is not claimed to be excessive.
  12. The defendant argues that it was entitled to judgment as a matter of law, or alternatively to a new trial because of trial error. The first argument divides into three: there was insufficient proof of a causal relationship between the defendant’s negligence in failing to keep closer tabs on Kristin Beul and her sexual involvement with Bruce culminating in his suicide; Bruce’s criminal activity was the sole, or superseding, cause of her harm; and the harm was too “remote” in a legal sense from the defendant’s failure of due care to support liability.
  13. Since Kristin was determined to conceal her relationship with Bruce, the defendant argues, no amount of care by Breber would have warded off the harm that befell Kristin; she would have stonewalled, however pertinacious Breber had been in her questioning. This is conceivable, and if true would let ASSE off the hook; if there was no causal relation between the defendant’s negligence and the plaintiff’s harm, there was no tort. E.g., Merco Distributing Corp. v. Commercial Police Alarm Co., 267 N.W.2d 652 (Wis. 1978); Vastola v. Connecticut Protective System, Inc., 47 A.2d 844, 845 (Conn. 1946); Guthrie v. American Protection Industries, 206 Cal. Rptr. 834, 836 (Cal. App. 1984).
  14. But it is improbable, and the jury was certainly not required to buy the argument. Suppose Breber had inquired from the school how Kristin was doing–a natural question to ask about a foreigner plunged into an American high school. She would have learned of the numerous absences, would (if minimally alert) have inquired about them from Kristin, and would have learned that Kristin had been “ill” and that Richard Bruce had been home and taken care of her. At that point the secret would have started to unravel.
  15. As for the argument that Bruce’s misconduct was so egregious as to let ASSE off the hook, it is true that the doctrine of “superseding cause” can excuse a negligent defendant. Suicide by a sane person, unless clearly foreseeable by the tortfeasor, for example a psychiatrist treating a depressed person, is a traditional example of the operation of the doctrine. E.g., McMahon v. St. Croix Falls School District, 596 N.W.2d 875, 879 (Wis. App. 1999); Wyke v. Polk County School Board, 129 F.3d 560, 574-75 (11th Cir. 1997); Bruzga v. PMR Architects, P.C., 693 A.2d 401 (N.H. 1997); Edwards v. Tardif, 692 A.2d 1266, 1269 (Conn. 1997); W. Page Keeton et al., Prosser and Keeton on the Law of Torts sec. 44, p. 311 (5th ed. 1984). So if Bruce’s boss had refused him a raise and Bruce had responded by killing himself, the boss even if somehow negligent in failing to give him the raise would not be considered the legal cause of the death. Or if through the carelessness of the driver a truck spilled a toxic substance and a passerby scraped it up and poisoned his mother-in-law with it, the driver would not be liable to the mother-in-law’s estate; the son-in-law’s criminal act would be deemed a superseding cause. See Giebel v. Richards, 591 N.W.2d 901 (Wis. App. 1999); Henry v. Merck & Co., 877 F.2d 1489, 1494-97 (10th Cir. 1989); Rowe v. State Bank of Lombard, 531 N.E.2d 1358, 1368 (Ill. 1988); Shelton v. Board of Regents, 320 N.W.2d 748, 752-53 (Neb. 1982).
  16. Animating the doctrine is the idea that it is unreasonable to make a person liable for such improbable consequences of negligent activity as could hardly figure in his deciding how careful he should be. Cf. Schuster v. Altenberg, 424 N.W.2d 159, 165 (Wis. 1988). The doctrine is not applied, therefore, when the duty of care claimed to have been violated is precisely a duty to protect against ordinarily unforeseeable conduct, as in our earlier example of a psychiatrist treating depression. The existence of the duty presupposes a probable, therefore a foreseeable, consequence of its breach. (All that “foreseeable” means in tort law is probable ex ante, that is, before the injury that is the basis of the tort suit.) Thus a hospital that fails to maintain a careful watch over patients known to be suicidal is not excused by the doctrine of superseding cause from liability for a suicide, e.g., DeMontiney v. Desert Manor Convalescent Center, 695 P.2d 255, 259-60 (Ariz. 1985), any more than a zoo can escape liability for allowing a tiger to escape and maul people on the ground that the tiger is the superseding cause of the mauling. City of Mangum v. Brownlee, 75 P.2d 174 (Okla. 1938); see also Scorza v. Martinez, 683 So. 2d 1115, 1117 (Fla. App. 1996); Behrens v. Bertram Mills Circus, Ltd., [1957] 2 Q.B. 1, 1 All E.R. 583 (1957).
  17. So Kristin’s high school would not have been liable for the consequences of Bruce’s sexual activity with Kristin even if the school should have reported her frequent absences to Breber; the criminal activities with their bizarre suicide sequel were not foreseeable by the school. But part of ASSE’s duty and Breber’s function was to protect foreign girls and boys from sexual hanky-panky initiated by members of host families. Especially when a teenage girl is brought to live with strangers in a foreign country, the risk of inappropriate sexual activity is not so slight that the organization charged by the girl’s parents with the safety of their daughter can be excused as a matter of law from making a responsible effort to minimize the risk. See, e.g., Niece v. Elmview Group Home, 929 P.2d 420, 427 (Wash. 1997); R.E. v. Alaska, 878 P.2d 1341, 1346-48 (Alaska 1994); Juarez v. Boy Scouts of America, Inc., 97 Cal. Rptr. 2d 12, 31 (Cal. App. 2000); Phillips v. Deihm, 541 N.W.2d 566, 573 (Mich. App. 1995). Sexual abuse by stepfathers is not uncommon, see, e.g., Diana E.H. Russell, “The Prevalance and Seriousness of Incestuous Abuse: Stepfathers vs. Biological Fathers,” 8 Child Abuse & Neglect 15 (1984), and the husband in a host family has an analogous relationship to a teenage visitor living with the family.
  18. It is true (we turn now to the issue of remoteness) that when through the negligence of an alarm company, to which ASSE in its role as protector of foreign students from the sexual attentions of members of host families might perhaps be analogized, a fire or burglary is not averted or controlled in time, the company is generally not liable for the consequences; the consequences are deemed too remote. E.g., Edwards v. Honeywell, Inc., 50 F.3d 484, 491 (7th Cir. 1995); Fireman’s Fund American Ins. Cos. v. Burns Electronic Security Services, Inc., supra, 48 N.E.2d at 132-33; cf. Fireman’s Fund Ins. Co. v. Morse Signal Devices, 198 Cal. Rptr. 756, 760 (Cal. App. 1984); see also Heitsch v. Hampton, 423 N.W.2d 297, 299 (Mich. App. 1988). There are two related considerations. One is that so many factors outside the alarm company’s control determine the likelihood and consequences (whether in property loss or personal injury) of a failure of its alarm to summon prompt aid on a particular occasion that the company is bound to lack the information that it needs to determine what level of care to take to prevent a failure of its system. See, e.g., Guthrie v. American Protection Industries, supra, 206 Cal. Rptr. at 836. This basis of the doctrine is the same as that of the doctrine of superseding cause. A harm is not foreseeable in the contemplation of the law if the injurer lacked the information he needed to determine whether he must use special care to avert the harm. See, e.g., Lodge v. Arett Sales Corp., 717 A.2d 215, 223 (Conn. 1998). The second point is that the alarm company is not the primary accident avoider but merely a backup, and the principal responsibility for avoiding disaster lies with the victim. See, e.g., Rardin v. T & D Machine Handling, Inc., supra, 890 F.2d at 27; EVRA Corp. v. Swiss Bank Corp., 673 F.2d 951, 957-58 (7th Cir. 1982). The points are related because both involve the difficulty a backup or secondary protector against disaster has in figuring out the consequence of a lapse on its part. Neither point supports ASSE, which was standing in the shoes of the parents of a young girl living in a stranger’s home far from her homeland and could reasonably be expected to exercise the kind of care that the parents themselves would exercise if they could to protect their 16-year-old daughter from the sexual pitfalls that lie about a girl of that age in those circumstances. ASSE assumed a primary role in the protection of the girl.
  19. So the plaintiff was entitled to get to the jury, and we turn to the two alleged errors in the procedure at trial. The first concerns the judge’s response to a question submitted to him by the jury during its deliberations. To try to discipline the jury’s thinking, Wisconsin makes the submission of a special verdict the default rule in all civil cases. Wis. Stat. sec. 805.12(1) and Judicial Council Committee’s 1974 Note thereto; see Anderson v. Seelow, 271 N.W. 844, 846 (Wis. 1937). In a negligence case, therefore, the jury will be asked to enter separately on the verdict form the amount of damages and the percentage of the plaintiff’s comparative fault and not make the “bottom line” computation, which involves deducting from the amount of damages that amount times the plaintiff’s percentage of comparative fault. The fear is that the jury will fill in the bottom line first and then work backwards, failing to give due consideration to the significance of the plaintiff’s fault. McGowan v. Story, 234 N.W.2d 325, 329 (Wis. 1975). The question the jury asked the judge in this case was, “What bearing do the negligence factors have on the amounts we may or may not choose to award?” The judge’s answer, given after consultation with the lawyers, was that “the comparison factor, if you find both parties negligent, has a significant impact upon the award that the Court enters. . . . If you answer the comparison question, then it is a problem that’s presented to the Court as to . . . how to apply those percentages to the damages.” ASSE argues that this answer was inconsistent with the policy of Wisconsin law of keeping the jury from working backwards from the bottom line in completing the rest of the special verdict.
  20. In making this argument ASSE assumes that the federal district court in a diversity case is bound not only by Wisconsin’s presumption in favor of the use of special verdicts but also by whatever standard Wisconsin courts use to determine how a judge should respond to a jury’s question arising from the use of a special verdict. That is incorrect. Wisconsin’s affection for the special verdict is not limited to a particular area of law, which would suggest that it was motivated by a desire to shape substantive policy in that area. Compare Herremans v. Carrera Designs, Inc., 157 F.3d 1118, 1123 (7th Cir. 1998); Harbor Ins. Co. v. Continental Bank Corp., 922 F.2d 357, 364 (7th Cir. 1990). Rules of general applicability and purely managerial character governing the jury, such as the form in which a civil jury is instructed, are quintessentially procedural for purposes of the Erie rule. See, e.g., Odekirk v. Sears Roebuck & Co., 274 F.2d 441, 445 (7th Cir. 1960); Turlington v. Phillips Petroleum Co., 795 F.2d 434, 441 (5th Cir. 1986); Seltzer v. Chesley, 512 F.2d 1030, 1035 (9th Cir. 1975); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure sec. 2555, p. 432 (1995). They are therefore supplied by federal law in diversity as in all other federal cases.
  21. But supplied by what federal law here? Rule 49(a) of the Federal Rules of Civil Procedure authorizes but does not direct the use of special verdicts, and this is the rule that federal courts are to follow, as the cases hold without exception. E.g., Sadowski v. Bombardier Ltd., 539 F.2d 615, 622 (7th Cir. 1976); Geosearch, Inc. v. Howell Petroleum Corp., 819 F.2d 521, 527 (5th Cir. 1987); Shultz v. Rice, 809 F.2d 643, 650 (10th Cir. 1986); DeEugenio v. Allis-Chalmers Mfg. Co., 210 F.2d 409, 414-15 (3d Cir. 1954); Lang v. Rogney, 201 F.2d 88, 97 (8th Cir. 1953); 9A Wright & Miller, supra, sec. 2502, pp. 154-55. We think it follows that whether the federal court should try to keep the jury in the dark about the legal effect of the jury’s answers to the questions posed to it by the special verdict is also a question of federal law, whether viewed as an interpretation of Rule 49(a) or as the creation of a federal common law of special verdicts to supplement the rule. E.g., Thedorf v. Lipsey, 237 F.2d 190 (7th Cir. 1956); Carvalho v. Raybestos- Manhattan, Inc., 794 F.2d 454, 457 n. 2 (9th Cir. 1986); Lowery v. Clouse, 348 F.2d 252, 260-61 (8th Cir. 1965). Although the cases (particularly in this court) make clear that the judge has no general duty to inform the jury of the legal consequences of its verdict, see, e.g., Freeman v. Chicago Park District, 189 F.3d 613, 616 (7th Cir. 1999), and intimate that in some circumstances the giving of such information might interfere with the jury’s appraisal of the facts, e.g., Gullett v. St. Paul Fire & Marine Ins. Co., 446 F.2d 1100, 1105 (7th Cir. 1971), there is no rule against giving the information, Simms v. Village of Albion, 115 F.3d 1098, 1107 (2d Cir. 1997); Lowery v. Clouse, supra, 348 F.2d at 261; 9A Wright & Miller, supra, sec. 2509, p. 198, nor have we found any case in which the giving of it was held to be a reversible error. In fact, we find it difficult to conceive of such a case. As Lowery points out, since the judge could submit to the jury instead of a special verdict a general verdict with special interrogatories, a form of verdict that would reveal to the jury the legal consequences of its specific findings, there is no purpose in forbidding him to do the same thing with a special verdict.
  22. All this is rather to one side of the present case, since in the particular circumstances presented here it is apparent that the judge gave as good an answer to the jury’s question as he could have done, and a better answer than saying nothing and leaving the jury confused. Cf. Bollenbach v. United States, 326 U.S. 607, 612-13 (1946); Davis v. Greer, 675 F.2d 141, 145 (7th Cir. 1982); Testa v. Wal-Mart Stores, Inc., 144 F.3d 173, 176 (1st Cir. 1998). He made clear in the second part of his answer that the jurors were not to make the bottom-line computation. Had he said in the first part that their answer to the question of comparative fault would have no or an insignificant impact on the damages award, that might have been an invitation to them not to take it seriously; but he did not do that.
  23. The defendant also complains about the following instruction to the jury
  24. “You’re instructed that the law of Wisconsin does not allow a child under the age of 18 to consent to an act of intercourse.” This was a reference to the state’s statutory rape law, but it was not elaborated further. The jury was instructed to consider the instructions as a whole and another instruction was that it was to consider Kristin’s comparative fault. The jury assessed that fault at 41 percent, so obviously it did not think the age-of-consent instruction prevented it from considering Kristin’s responsibility for the harm that befell her as a consequence of her sexual relationship with Bruce.
  25. But should the jury have been told what the age of consent is in Wisconsin and, if so, was the information conveyed to the jury in the right way? The answer to the first question is yes. The age of consent fixed by a state represents a legislative judgment about the maturity of girls in matters of sex. Eighteen is a pretty high age of consent by today’s standards and of course the law was not fixed by reference to German girls; but it is nonetheless a reminder that teenage children are not considered fully responsible in sexual matters, and this was something relevant to the jury’s consideration of Kristin’s share of responsibility for the disaster. The criminal law is frequently used to set a standard of care for civil tort cases– for the general principle, see, e.g., Bennett v. Larsen Co., supra, 348 N.W.2d at 548; Cutsforth v. Kinzua Corp., 517 P.2d 640, 647 (Ore. 1973); Southern Pacific Co. v. Watkins, 435 P.2d 498, 511 (Nev. 1967), and for its application to age of consent see Doe v. Greenville Hospital System, 448 S.E.2d 564, 566 (S.C. App. 1994); cf. Mary M. v. North Lawrence Community School Corp., 131 F.3d 1220, 1227 (7th Cir. 1997)–and that was essentially the use made of it here. It would have been error to instruct the jury that because Kristin was below the age of consent her comparative fault must be reckoned at zero. That would have given too much force to the criminal statute in this civil case, for the statute cannot be considered a legislative judgment that minors are utterly incapable of avoiding becoming ensnared in sexual relationships. A comparative-fault rule, moreover, requires gradations of victim responsibility that are alien to the normal criminal prohibition. Victim fault is not a defense, either partial or complete, to criminal liability. It is not a defense to a charge of rape that, for example, the victim was dressed provocatively, or drunk, or otherwise careless in the circumstances in which the rape occurred.
  26. It would have been better, though, if the jury had been told how it should take the age of consent into account in their deliberations. It should have been told that in deciding how much responsibility to assign to Kristin for the events that gave rise to the harm for which she was suing, it could consider that the state had made a judgment that girls below the age of 18 should be protected by the criminal law from sexual activity even if they agree to it. As it was, the jury was left to tease out the relation between the age-of-consent instruction and the comparative-fault instruction for itself. But we cannot think that it was other than a harmless error. Indeed, we are surprised that the jury assigned so large a responsibility to this young foreign girl virtually abandoned by the agency that was standing in for her parents. The jury verdict was rather favorable to the defendant than otherwise.
  27. Affirmed.

—————————————————–

1999 Jul 29: Former exchange student who had affair suing program

BEUL v. ASSE INTERN., INC.No. 98-C-426.

Beul sues ASSE International for negligence

65 F.Supp.2d 963 (1999)

Kristin BEUL, Klaus Beul, and Petra Beul, Plaintiffs,
v.
ASSE INTERNATIONAL, INC., and Admiral Insurance Company, Defendants.

United States District Court, E.D. Wisconsin.

October 19, 1999.

Heiner Giese, Giese & Weden, Milwaukee, WI, for Plaintiffs.

Timothy J. Strattner, Amy J. Doyle, Schellinger & Doyle, Waukesha, WI, Nancy J. Sennett, Brett H. Ludwig, Foley & Lardner, Milwaukee, WI, for Defendants.

    DECISION and ORDER

MYRON L. GORDON, District Judge.

When plaintiff Kristin Beul was a 16 year-old German exchange student living in the Wisconsin home of Richard Bruce, his wife Cheryl and their daughter Angela, she became involved in a sexual relationship with Mr. Bruce, her “host father”. According to Kristin’s testimony at trial, he initially employed some force to accomplish a sexual act with her and later used psychological pressure, including threats of suicide, to coerce her into continuing the relationship and keeping it a secret. Shortly after her “host mother”, Cheryl Bruce, found “love letters” from Kristin in her husband’s truck, Mr. Bruce committed suicide in the face of an impending criminal investigation. There was evidence at trial to suggest that Kristin sustained severe psychological injuries as a result of her involvement with Mr. Bruce, including post-traumatic stress disorder, bulimia, self-mutilation and thoughts (as well as acts) of attempted suicide.

Kristin and her parents, Klaus and Petra Beul, filed this diversity action against defendant ASSE International, Inc., [“ASSE”], the foreign corporation that ran the student exchange program, and its insurer Admiral Insurance Company. The plaintiffs alleged that ASSE’s negligent supervision was a cause of the sexual relationship and the resulting harm that Kristin suffered. The jury agreed, returning a verdict in favor of the plaintiffs on August 4, 1999. The jury attributed 59% of the causal negligence to ASSE, and 41% to Kristin. The jury determined that her damages were $1,100,000 and that her parents’ damages for loss of consortium were $17,000. After applying the jury’s apportionment, the court entered judgment in favor of Kristin for $649,000 and in favor of her parents Klaus and Petra Beul for $10,030.

Presently before the court are the defendants’ post-trial motions for judgment as a matter of law, a new trial and amendment of the judgment. This decision will assume familiarity with the court’s prior opinion granting in part and denying in part the defendants’ motion for summary judgment, in which the factual and procedural background of this case are stated in greater detail. Where necessary, the court will discuss the evidence presented at trial in the context of discussing the defendants’ motions.

I. RULE 50 MOTION

The defendants move for judgment as a matter of law, and alternatively for a new trial, on the ground that there was no evidence that ASSE caused any injuries to the plaintiffs. The defendants made the same argument in their summary judgment motion, and as the argument related

[65 F.Supp.2d 965]

to the claims that went to trial, the court rejected it. Based on the evidence presented at trial, I now believe there is even less reason for granting judgment as a matter of law on the issue of causation.

The defendants do not challenge the jury’s finding that ASSE was negligent. The evidence, which I must review in the light most favorable to the plaintiffs, supports the conclusion that ASSE was negligent in many significant respects. These include ASSE’s noncompliance with a number of specific duties contained in its manual, federal regulations, and student exchange organization accreditation standards. Most if not all of these duties were designed to protect the children in the student exchange program from the risks associated with having them live with adult strangers in another country. In addition, ASSE failed to perform many obligations imposed by the common-law negligence duty of reasonable care. Examples of these failures include, inter alia:

  • not maintaining anything other than minimal and perfunctory contact with Kristin;
  • not having any meaningful communication with Cheryl Bruce, who testified that she immediately became suspicious of Richard Bruce’s relationship with Kristin and would have told ASSE’s area representative about her problems had she been asked;
  • not speaking privately with Kristin or the Bruces;
  • not giving Kristin the student handbook containing specific instructions to students about what to do if they were in “sexual jeopardy”;
  • not maintaining contact with school authorities (Kristin had a number of absences because, unbeknownst to his family, Richard Bruce kept her home from school on many occasions to have sex with her);
  • not providing formal training or supervision for ASSE’s area representative.

I believe that these factors bear an important relationship to the issue of causation. For example, if ASSE’s area representative had advised Kristin about how to respond if she was in “sexual jeopardy”, Kristin may have been better prepared about what to do when Richard Bruce began making improper advances. Had the representative spoken with Cheryl Bruce and encouraged her to discuss any problems, Ms. Bruce may have told her about her concerns, or suggested that another host family be found for Kristin. A personal visit with the family may have led the representative to observe, as Ms. Bruce did early on and the representative did eventually, that Kristin and Richard Bruce were interacting improperly. Checks with the school might ultimately have led to the other members of the Bruce family discovering that Mr. Bruce had been secretly arranging Kristin’s frequent absences from school.

ASSE’s omissions in this case can each be linked to a possibility that the injuries sustained by Kristin might have been avoided. A mere possibility is not enough, however, and some factors, such as not meeting Kristin at the airport, seem remote from the harm that occurred to her in this case. Nevertheless, other omissions, such as not speaking with Cheryl Bruce or failing to provide a copy of the student handbook, are perhaps sufficient in and of themselves to support a finding of causation. More important, the jury reasonably could find that all of these possibilities add up to a probability that the injury to Kristin would have been avoided if ASSE had complied with its duties, duties which were specifically designed to ferret out or prevent any problems.

The defendants, relying on the fact that Kristin herself kept the improper relationship a secret until it was discovered by Ms. Bruce, argue that Kristin would not have confided in anyone. The jury was entitled to believe this argument, but it was not required to do so. The jury could have inferred, based on Kristin’s testimony, that she wanted to tell someone about Mr. Bruce’s improper behavior, but for obvious reasons did not tell the Bruces and was

[65 F.Supp.2d 966]

afraid to tell her parents. The jury could have believed that ASSE’s area representative (if she had met her responsibilities) would have been the most appropriate person to have dealt with precisely this type of situation. They also could have found that what kept Kristin from telling the area representative was the lack of communication and rapport between them, the failure to sufficiently encourage Kristin to seek help if she had a problem, and the failure to specifically advise Kristin about what to do if she was in “sexual jeopardy”. Moreover, even if the jury did believe that Kristin would not have told anyone about the relationship, they could still have found causation based on other theories that do not depend on Kristin’s disclosure.

Looking at the evidence of ASSE’s failures as a whole, I believe that the jury reasonably could have found that the agency totally failed to guard against the possibility that a host parent with sinister intentions might seek to sexually abuse a teenaged student who, out of fear, humiliation, lack of maturity or other reasons, would keep the abuse secret. Reviewed in the light most favorable to the plaintiffs, the evidence supports the finding that this overall failure, more likely than not, was a cause of the plaintiffs’ injuries. See Wisconsin Jury Instructions — Civil 1500 (submitted to the jury). Accordingly, I will deny the defendant’s motion for judgment as a matter of law. I will also deny the alternative motion for a new trial, as I believe the jury’s finding of causation is not against the greater weight of the evidence.

II. MOTION FOR A NEW TRIAL

The defendants claim they are entitled to a new trial on the basis of several prejudicial errors that the defendants allege had occurred during the trial. One of these claimed errors is that the court informed the jury of the effect of its verdict in answering one of their questions. Their question, which arose during deliberations, was: “What bearing does the negligence factors have on the $ amounts we may or may not choose to award?”

This somewhat ambiguous question was interpreted by the court and, I believe, by the parties’ attorneys, as inquiring about the relationship between the degree of negligence of one or both of the parties and the amount of damages. After considering the suggestions of counsel, the court informed the jury that as far as they were concerned, their answers to the damages questions had nothing to do with their answers to the negligence questions, but that their answer to the comparative negligence question (number five), if they reached it, would affect the amount of damages the court would ultimately award in entering the judgment.

I do not accept the defendants’ contention that these comments improperly informed the jury of the effect of its verdict. I believe that the court gave the jury an accurate response to their question, without ignoring their question or avoiding giving them an answer. In fact, the answer that the court ultimately gave the jury was generally consistent with the answer recommended by defense counsel:

I would simply answer the jury by saying that the impact of the negligence findings on the ultimate judgment is the province of the court and that they do not need to be concerned with that and that they are asked only to find what sum of money will reasonably compensate the plaintiffs and just leave it at that.

I told the jury that their answer, if any, to question five would have a significant impact, which the court would determine, on the damages ultimately awarded. The jury was given no indication of how their answer would affect the judgment, and the court made clear that this was not their concern. Any variance between my answer and the defendants’ suggested answer, if there was error in it at all, does not provide the basis for granting a new trial.

The court did not, as the defendants claim, instruct the jury that they had to answer question five in order to award the

[65 F.Supp.2d 967]

plaintiffs’ any damages. Such an erroneous instruction, had it been given, would have favored the defendants by incorrectly suggesting to the jury that they should find Kristin at least partially negligent. The transcript also belies the defendants’ assertion that the court told the jury that the plaintiffs would only receive the percentage of damages not attributable to Kristin. The court gave no such instruction.

The defendants argue that the court erred in instructing the jury that “the law in Wisconsin does not allow a child under the age of 18 to consent to an act of sexual intercourse”. The defendants do not contend that the instruction incorrectly states the law, nor do they argue that this legal principle is not relevant to this case (I believe it clearly is). Instead they assert that the instruction was prejudicial to them because it tended to diminish Kristin’s responsibility and “place[ ] the two parties on different levels.” This argument is waived because it is unsupported by citation to any authority. See Chambers v. American Trans Air, Inc., 17 F.3d 998, 1005 (7th Cir.1994). In any event, it is black-letter law that different standards of care apply to adults and minors. See, e.g. Wisconsin Jury Instructions—Civil 1582: “Comparative Negligence: Adult and Child” (collecting cases in comment).

Moreover, the defendants concede that the jury could consider other factors, besides her supposed consent, in weighing Kristin’s negligence. The jury did, in fact, find that 41% of the causal negligence was attributable to her.

For similar reasons, the court rejects the defendants’ somewhat related argument that they must be granted a new trial because “ASSE cannot be more negligent than Kristin Beul, an active participant in the affair.” The argument is unsupported by citation to any authority, and it ignores the differing standards of care that applied to Kristin and ASSE. In addition, it depends on the theory that Kristin was an entirely willing participant in the relationship from its inception, a view that the jury arguably could have rejected in reaching its verdict.

I have considered the defendants’ remaining arguments in favor of a new trial. I conclude that they are waived because they are not based on any pertinent authority (See Chambers, 17 F.3d at 1005) and, also, they are devoid of merit.

III. MOTION TO AMEND JUDGMENT

The defendants seek an order amending the judgment for the same reasons advanced in support of their other motions. For the reasons set forth above, I hold that the defendants are not entitled to amendment of the judgment.

ORDER

IT IS ORDERED that the defendants’ motions for judgment as a matter of law, a new trial and amendment of the judgment be and hereby are denied.


1999 Jul 29: Former exchange student who had affair suing program

2009 Feb 04: Foreign exchange program controversy

The U.S. State Department is investigating whether a major non-profit foreign exchange agency violated regulations by not having proper homes in place for visiting students. Local families who thought they’d have kids for a few weeks say they got stuck with students who had nowhere to go.

The Investigators Sarah Wallace has more on this exclusive story.

State Department regulations are clear — before a foreign exchange student comes to in the United States the sponsoring agency is supposed to have secured a home placement and a school placement for the year.

Well now there are allegations that an agency called ASSE International has blatantly violated those regulations. ASSE denies it.

“I just think it’s wrong. It’s wrong all around ” said Michele Renaud.

Michele Renaud thought it would be a great experience for her son TJ to have foreign visitors. So this summer, she welcomed Hee-Sung from Korea, to stay while he attended an English language camp in Putnam County. She also took in Lenny from France — both students would then go to a different, permanent home for the school year.

Sarah Wallace: “Your understanding was you’d have them for how long?” Michele: “Four weeks.”

The sponsoring agency — ASSE International — is headquartered in California, with area representatives in several states, including New York.

“They did not have placement for either one of my boys … And could I keep them for a few more days. … And it was going on the third month,” Michele said.

Ira Drescher and his family, who also live in Putnam County, took in three exchange students — two from Japan, and one from France.

“We found out none of them had placement. I mean we were told they all had placement and they’d be here for a month,” Ira said.

The Dreschers say they scrambled to get the students enrolled in the local school because ASSE had done nothing. Federal regulations require that a school placement is secured before students arrive.

Michele Renaud echoes the Dreschers. “We went to the school. They were not even registered. The school didn’t even have their names,” she said.

“Those students, before they departed their home country, were supposed to be promised a properly screened and secured host family, as well as a high school,” Danelle Grijalva said.

Danelle Grijalva says her Internet based watchdog group has received complaints about ASSE from families in nine different states.

Independently, we received several e-mails and phone calls. One area representative writes: “This has been a bait and switch program from the beginning.”

“To get them here and have them fend for themselves and just hope that the temporary families fall in love with them is a recipe for disaster,” Danelle said.

In Buffalo, New York we heard a disturbing case of a young girl from Thailand happily living in a temporary house, then placed by ASSE with a family living in a mobile home on the side of the road in the Adirondacks.

“She was distraught. She was crying,” Barbara said.

Barbara Costuros says she drove four hours each way to bring 18-year-old Sufrete back to Buffalo. “It was dirty … I see mice … yes I was scared” Sufrete said.

Sufrete says she was told by ASSE she’d be sent back to Thailand if she didn’t stay in the Adirondacks. But her parents, who paid more than $10,000 to the agency, had had enough. She flew home.

ASSE declined to be interviewed but released this statement: “ASSE is has always been committed to full compliance with all U.S. Department of State regulatory requirements governing its programs.”

When we visited the Dreschers several weeks ago, they decided to keep their French student for the year. But with two children of their own, the family just could not keep the other students.

“They start school, they get upset. It’s very disturbing to them. … All of them is too much,” Ira said.

Michele Renaud still had one of her foreign students waiting for a permanent placement,as well.

“It just feels that we were lied to … blatantly lied to,” Michele said.

The students from Putnam County have all now been placed in permanent homes, although a couple of them say they found families on their own without ASSE’s help.

The Agency claims as of a few weeks ago, all its students had been placed.

(Copyright ©2014 WABC-TV/DT. All Rights Reserved.)
————————————————

Lauret D Hooks and aliases

OKLAHOMA DEPARTMENT OF CORRECTIONS

Name: LAURET D HOOKS / ODOC# 281969

Alias: D Hooks / Jean Miller / Lauret Hooks / Lovin’ Spoonful Hooks / Lauret DeJan Hooks

IDs ODOC#: 281969

Birth Date: 08/19/1961

Appearance White Female; 5 ft. 3 in. tall; 190 pounds; Brown hair; Hazel eyes;

Body Marks No data available

Sentence
CRF# 1999-973
County: OKLA
Offense: False Declaration To Pawnbroker / Embezzlement By Employee
Conviction: 12/20/1999
Term: 3 Y
Term Code: SUSPENDED
Start: 12/20/1999
End: 12/19/2002

Facility
Current Facility: INACTIVE
Phone#
Reception Date
Discharge Date: 01/07/2000
Parole Hearing Date


2007 Jun 10: ASSE: Exchange-student problems bring shake-up

2007 Jun 10: School of hard knocks? Every story has two sides, but tales about Bayard Rustin Living Learning Center couldn’t be more further apart.

2007 Jun 10: Storrs, Hooks, Lamonte and Bayard Rustin Living Learning Center

The Oklahoman | By Randy Ellis | Published: June 10, 2007

Three high school foreign exchange students had high expectations last summer after they learned they had been accepted into a private Oklahoma City school funded in part with a grant from Microsoft billionaire Bill Gates’ foundation.

Nobody said anything about fights in classrooms. Nobody said anything about living with convicted felons. Nobody said anything about cockroaches.

Those were things they had to learn from experience.

Welcome to Oklahoma City’s Bayard Rustin Living Learning Center — a nonaccredited, unregulated school where foreign exchange students say they received an education — just not the kind they were expecting.

The students said they were ultimately rescued by caring Oklahoma families that took them in and got them transferred to public schools. They talked with The Oklahoman about their experiences.

Cockroaches
“I learned a lot about cockroaches,” said David Lorenz, a 17-year-old foreign exchange student from Germany. Lorenz said he was placed with a host family headed by the school’s secretary, and her home was crawling with them.”The cockroaches were everywhere — in the refrigerator, in the oven,” he said.

Lorenz said he tried not to complain because foreign exchange officials had stressed the need to be tolerant of different cultures during a student orientation.

However, he said that became impossible when he woke up one morning with a throbbing pain in his left ear.

“We went to the emergency room and the doctor looked into the ear and there was a cockroach in it. I could feel it crawling around in there,” he said.

Antibiotics were prescribed and it took about a week for the pain to ease, Lorenz said.

Bayard Rustin secretary Lauret Hooks, Lorenz’s host parent, said the cockroach invasion was a temporary problem created when a neighbor moved out. She said she bombed for the cockroaches and took Lorenz to the hospital.

“I don’t know what more I could have done,” she said.

Lorenz said he discovered later that Hooks, 45, had a 1999 felony conviction. Hooks confirmed that she pleaded guilty back then to embezzlement by an employee and making a false declaration to a pawnbroker.

A representative of ASSE International Student Exchange Programs, the exchange organization that placed students in her home, said its criminal background check failed to turn up that information.

Hooks, however, said the organization knew all about it, but said it was OK.

Hooks said her experience with the exchange program wasn’t so great, either. She said a student from Japan tore up her son’s comforter, ruined food by leaving the freezer door open and ran up long distance phone bills.

Founder’s troubled history
Bayard Rustin is the brainchild of Toshav L. Storrs, a gay man with a criminal past and pending felony charge who said he started the 32-student school in hopes of helping troubled inner city youth avoid the mistakes he made. The pending charge in Tulsa is for allegedly writing nine bogus checks totaling more than $2,600. His half-dozen prior convictions in New York and Oklahoma are for grand larceny, bogus checks and forgery-related offenses.

“I started out with great gifts and didn’t use them well,” said Storrs, 46. “It’s not anything I’m at all proud of. From those experiences — whatever I have learned — I hope I can pass on to these young people.”

Storrs said he started Bayard Rustin two years ago with a vision of creating a small school that would embrace diversity.

Many students founder in public schools when they don’t fit in because they are gay, shy, from broken foster homes or have discipline problems, he said. Storrs said he invited six foreign exchange students to attend Bayard Rustin last fall because he thought it would increase diversity and the multi-lingual, high performing exchange students would be an inspiration for the school’s other students.

Unexpected surprises
Lorenz and fellow foreign exchange students Daniel Balser, 17, of Germany and Petr Dolecek, 17, of the Czech Republic told The Oklahoman that Bayard Rustin provided them and three other exchange students with one bizarre surprise after another.

While Lorenz was dealing with cockroaches, Balser and Dolecek were placed in Storrs’ home. Balser said he came to Oklahoma City with the understanding he would be living with former Bayard Rustin Principal Sean Lee. But after arriving, he learned Storrs would be his host.

Balser said Storrs told him he was gay, but not being familiar with all the nuances of the language, he thought Storrs might be saying that he was a “happy person.” Balser said he realized Storrs was a homosexual after meeting his gay roommate.” They didn’t do anything to us. Just the feeling wasn’t so cool,” he said.

Dolecek said he understood before he came to Oklahoma City that Storrs was homosexual, but it wasn’t a big deal to him.

The students said they had never heard of Bayard Rustin when the exchange program notified them that they would have an opportunity to attend school there.

They said they looked up the school on the Internet, but about all they discovered was that Bayard Rustin was a private school that embraced students from diverse social and racial backgrounds and received part of its funding from the Bill and Melinda Gates Foundation.

The Gates Foundation tie seemed promising.

“I thought it was a prestigious school,” Dolecek said, adding he also thought it might be high tech.

He was wrong.

An IBM employee who worked on the computers said some of them were so old they wouldn’t load 10-year-old software. Storrs said he bought the computers cheap as surplus property.

School moves
As for the school, students said they were surprised to discover it was located in a warehouse on E Reno Avenue. They were even more surprised when officials packed up and moved the school a few weeks into the fall semester. The new location at 726 Colbertson Drive is in a strip shopping center southeast of the state Capitol.Jimmy Nix, the warehouse owner, said he was trying to evict Storrs when school officials moved.

“They were in there probably two or three months,” Nix said.

Nix said he received two bad checks from Storrs, along with a lot of excuses.

Other suppliers reported similar experiences.

And it wasn’t just the suppliers who weren’t being paid.

Former teachers told The Oklahoman they weren’t, either, which prompted many of them to quit mid-semester.

“Most of the time, we were just sitting there doing nothing,” Balser said.

The students said they would have one morning class, then do whatever. Fights frequently broke out between students, they said.

The state Education Department never stepped in because it doesn’t have oversight of private schools that don’t seek accreditation, said department spokeswoman Shelly Hickman.

Dolecek said he thought it was strange the school didn’t have money to pay teachers because it bought thousands of dollars in football equipment for a joint team with some charter schools.

The school still owes several thousand dollars on the equipment, an employee of the business that sold the equipment said.

Money problems
Storrs said Bayard Rustin is a private school that doesn’t charge tuition. He admits money was a constant problem.The school’s two primary sources of funding were a $150,000 model schools grant from the Bill and Melinda Gates Foundation and federal money the school collected for doing after-school tutoring of Oklahoma City students, Storrs said.

The Gates Foundation grant was pulled in September, before the last $50,000 installment was paid, after grant officials learned the school was writing bad checks and not paying teachers, said Isaac L. Ewell of the Black Alliance for Education Options, which administered the pass-through grant.

The state Education Department removed Bayard Rustin from the list of eligible tutoring assistance providers after investigating complaints involving many of the same issues, Hickman said.

Storrs said he still plans to hold classes next fall and hopes the school can become self-sufficient.

He said he understands the complaints of foreign exchange students, but thinks they stem largely from their expectations.

“I think they were looking for ‘Fast Times at Ridgemont High’. They wanted a big high school with lots of kids,” Storrs said.

Storrs thinks many struggling inner-city students were much happier with the Bayard Rustin experience.

The foreign exchange students said they will have a lot to talk about when they get home.

“Overall, we experienced everything, I guess,” Lorenz said.


2007 Jun 10: ASSE: Exchange-student problems bring shake-up

2007 Jun 10: ASSE: Exchange-student problems bring shake-up

By Randy Ellis Modified: June 10, 2007 at 7:02 am •  Published: June 10, 2007
Troublesome situations that six foreign exchange students encountered at Oklahoma City’s Bayard Rustin Living Learning Center should never have happened and steps have been taken to make sure they don’t happen again, said the regional director of the exchange organization that placed the students there.

ASSE International Student Exchange Programs has replaced its local representative and will never again send a student to Bayard Rustin, said Terri Joski, ASSE’s regional director.

Concerning ASSE’s former local representative, Joski said: “Clearly, his judgment was not very good.”

Criminal background checks by The Oklahoman revealed that two host parents used by the organization for Bayard Rustin students had felony criminal convictions.

Those felony records should have been uncovered during a criminal background check required by the U.S. State Department, Joski said.

ASSE paid an outside company to perform the background checks, but for some yet to be explained reason, those checks did not reveal the felony convictions, she said.

“If we had gotten results like that back, we cannot place a student in a home with a convicted felon,” she said.

Name changes possible

Individuals with minor criminal infractions in their distant past can sometimes serve as host parents, but the exchange student and the student’s natural family must approve, Joski said.It is unclear whether name changes and aliases were a factor in the organization’s failure to discover the criminal backgrounds of Lauret Hooks and Toshav L. Storrs.

Court records show both have gone by other names in the past. Hooks has used at least seven other names, including Jean Miller and Lovin’ Spoonful Hooks, records show.

Storrs used to be known as Tony Lamonte Greene. He changed his first name to Toshav when he converted to Judaism in 1990 and took the last name Storrs when he and Phillip Storrs united their lives in a gay commitment ceremony in New York in 1995. The couple since has split and Toshov Storrs now lives with another gay partner and his partner’s elderly mother.

Joski said ASSE was not told that Storrs was living with a gay partner when it placed students in his home.

The organization does have some gay host families, but ASSE’s policy is to fully inform students and their natural families before placing a student in a nontraditional home, she said.

Joski said it also upset her when students reported that Storrs and his partner would leave them to care for the partner’s elderly mother, who suffered a stroke a few years back, while they left on some weekends.

“That is not an acceptable situation,” Joski said. “We weren’t made aware of the partner or the mother.”

Not like a school

ASSE also did not know that Hooks’ home was infested with cockroaches, Joski said.ASSE requires its representative to do home visits, but there is no guarantee that home visits will detect that type of problem, she said.

Just by chance, Joski said she and a coordinator happened to be in Oklahoma City in January and decided to drop by Bayard Rustin.

“It was a very eye-opening experience,” she said. “I thought it was more like a community hang out place for kids than a school.”

Joski said ASSE gives every foreign exchange student the telephone number of his or her local representative as well as the telephone number of the regional office.

They are told to call if there is any kind of emergency, she said.

All students removed

All six Bayard Rustin foreign exchange students were removed from the school and their original host families as problems became known, Joski said. Some were at Bayard Rustin for a few weeks, while others were there several months.The students finished the year living with other host families and attended various public schools — where they reported much happier experiences.

“I’m a little sad it didn’t come up sooner,” Joski said. “We want them to have a good time on the program.”

2007: CSFES Helps Foreign Exchange Students

by NORTH COUNTRY GAZETTE on MAY 11, 2007
By Danielle Grijalva, CSFES Director

Approximately 30,000 teenage exchange students will return to their home countries next month.

The Committee for Safety of Foreign Exchange Students (CSFES) shares the following true story regarding the treatment of an exchange student by his student exchange company.

Jay’s stomach rumbled as he sat in his counselor’s office. His eyes would move down as he looked at the pencil his counselor held and then he looked up to his counselor’s mouth as he spoke on the phone to the area representative of his student exchange company.

He was exhausted and his energy was lost; this very well may be time for him to give in to returning to Thailand four months early. To return to his family who loved him didn’t sound like such a bad idea.

Mr. Ashurst would shade in the numbers on his desk calendar with his pencil and occasionally look over at Jay who was sitting in front of his desk. Occasionally Jay would see him write something down on a separate notepad, but for the most part, shading in the numbers is what occupied him most as he listened to Mrs. Wallen.

“Now may I say something, Mrs. Wallen?” Mr. Ashurst calmly spoke. “While I am not quite sure if you are interested in hearing what I have to say, I believe I’ve been patient with you and now I would like to ask the same from you. When Jay arrived, he had missed five weeks of school through no fault of his own. He has since maintained a 4.2 GPA and is active in many after school activities. Jay is well liked by anyone who comes into contact with him. Although he is quite shy, he has made friends, many of whom have taken it upon themselves to write letters on his behalf. Not one person wants him to return to Thailand early, Mrs. Wallen. My notes tell me that you have labeled this student as manipulative — please, let me finish. My notes reflect on four separate occasions you have called this young man a liar — please, I’m not done. Essentially you have told me he is nothing more than a spoiled rotten brat who is impossible to please and has been a troublemaker from the beginning.”

Jay was uncomfortable hearing Mr. Ashurst’s conversation, but also liked it at the same time. There was no more shading in the numbers on his desk calendar. Mr. Ashurst was now standing.

“Since I can tell, Mrs. Wallen, that we are not going to have a meeting of the mind about Jay, I prefer to discuss this matter with the State Department —” Mrs. Wallen had heard enough and abruptly ended the call. This was fine by Mr. Ashurst.

Mr. Ashurst reached in his desk and grabbed for his car keys. “Jay, I’m hungry. Grab your backpack, I’m taking you to lunch.”

“Yes, sir.” Jay softly responded.

During lunch, Mr. Ashurst learned from an ever so soft-spoken 16-year-old boy that it had been two days since he had anything to eat.

His last four weeks had been spent sleeping on a mattress in a basement.

The reason he didn’t tell his parents in Thailand is because he didn’t want to cause them to worry.

The reason he missed five weeks of school was because he did not have a host family waiting for him as he and his family were promised.

Against the United States Department of State regulations, he lived in the home of his area representative where he was told that he had better keep his mouth shut about the matter; that if he did complain to anyone, he would be sent home early to Thailand.

His parents in Thailand spent $16,000 for this experience.

It was in the basement of his area representative where he spent his last four weeks.

CSFES is pleased to report Jay was removed from the basement and placed in an actual home where he is thriving.

This is not an isolated incident as the exchange industry would like for you to believe.

CSFES urges all school administrators to report to the CSFES via www.csfes.org  or by calling 866-471-9203 should any students with a similar story appear at their high school.   5-11-07

2010 Jul 27: Former Danville teacher arrested for sexual assault

By Catherine Amos – Danville Register & Bee

DANVILLE – A former Danville teacher with no record of complaints from the local school system has been exposed as a possible sexual predator with a history spanning decades in multiple states.

Kevin G. Ricks, 49, was arrested in Prince William County in February and was indicted on felony charges of aggravated sexual battery, sodomy and two counts of indecent liberties stemming from a December incident, according to court records. Ricks has a court hearing Thursday in which he is expected to plead guilty to one count of indecent liberties with a minor under his supervision, according to The Washington Post.

In a massive four-month investigation, The Washington Post uncovered Ricks’ history in a story Sunday, revealing the former teacher spent time living and teaching in Danville from 1995 to late 2000. According to the Post, Ricks continuously hosted “dozens of students” through a foreign exchange program at his Marshall Terrace home.

Juliet Jennings, assistant superintendent of human services for Danville Public Schools, began working with DPS a few months after Ricks was hired as a full-time teacher in 1997, although she said she did not remember him. According to DPS records, Ricks worked as a substitute teacher from 1995-97 before the school system hired him to work as a full-time teacher for the 1997-98 school year.

“We had no complaints about him,” Jennings said, “in terms of his interactions with students as a substitute or a teacher. That never came to us.”

Jennings said the foreign exchange program, Education First, had no affiliation with DPS, and the students Ricks hosted did not attend Danville Public Schools. School officials’ first inkling of any problems with Ricks came in March when a Post reporter called about his employment history here, Jennings said.

Ricks worked as a high school English teacher at Langston Focus School, where at the time the campus was split into four “schools” of focus areas, such as literature or science. That structure was disbanded more than eight years ago and the Langston campus currently serves as an alternative high school for at-risk students.

Although Ricks did not have his teaching license, Jennings said, it was policy at that time to grant a new hire one year to obtain his or her full license. But Ricks failed to get his license by the end of the school year, and DPS dismissed him. Jennings said he continued to work for the school system as a substitute teacher until November 2000.

Jennings noted that the district’s current policy for obtaining a teaching license gives new hires 30 days to obtain a license.

Hiring procedures require extensive background checks, which include running a candidate’s fingerprints through the FBI database and conducting Child Protective Services checks. Jennings said Ricks passed both checks.

“Looking at it from a human resources standpoint,” she said, “the only other way the information could have been shared is from reference checks. Reference checks were made (on Ricks), but the information, were it known, was not shared.

“… Without a conviction, unless information is shared (through references), we wouldn’t know. That’s what hurts school systems.”

Although there were no allegations on record during Ricks’ tenure with Danville Public Schools, Jennings said the news of his exploits was “disgusting.”

“It’s not something that good educators need to have haunting them,” she said. “It just makes me angry.”

————————————————————
2010 Jul 28: Manassas Teacher Charged with Child Pornography Offenses

Kevin Garfield Ricks: Case progression: Sentenced to 20 + 25 years

1978: First known abuse case

2004: First time Kevin Garfield Ricks was charged

2010 Jul 25: Kevin Ricks’ career as teacher, tutor shows pattern of abuse that goes back decades

2010 July 28: Complaint filed: Case no 1:10 MJ-515

2010 Jul 28: Official press release: Manassas Teacher Charged with Child Pornography Offenses

2010 Jul 30: Kevin Garfield Ricks pleads guilty

2010 Nov 10: KGR charged with additional sex charges (German exchange student)

2010 December: Teacher’s license revoked by North Carolina State Board of Education

2011 Mar 03: Official press release: Former Manassas School Teacher Pleads Guilty to Producing Child Pornography Over 17 Years

2011 Mar 08: Notice of sentencing sent to victim

2011 May 26: Official press release: Former Manassas School Teacher Sentenced to 25 Years for Producing Child Pornography

2012 May 08: Kevin Ricks faces charges in Caroline County

2012 Jul 25: Pleads guilty to additional charges

2013 Jan 23: Ricks sentenced to 20 additional years

2013 Apr 25: U.S. v Ricks: Appeal denied

2013 Oct 13: US v Kevin Ricks: Appeal denied

————————————————————————

Kevin Garfield Ricks: Work history of a sexual predator

2010 Sep 01: PIE (France)/ASSE/World Heritage v Beddick/Grijalva: 07 CVD 6565 (Forsyth)

In the case of PIE (France)/ASSE/World Heritage v Veronika Beddick and Danielle Grijalva it turns out that the plaintiffs did not have much of a case and had chosen to wait it out rather than take Ms. Grijalva to court. Ms. Grijalva’s and Ms. Beddick’s attorney sent this Letter of Voluntary Dismissal Without Prejudice to the plaintiffs in order to close the case properly.

—————————————————

2007 Sep 09: Affadavit of Bachelot

P.I.E. claims ASSE fired Beddick with just cause. Supposedly filled with a need for revenge, Beddick contacted CSFES. Together, Beddick and CSFES supposedly disseminated falsehoods to French students, their natural parents and French diplomacy. P.I.E. call the Defendants’ actions a campaign of falsehood and disparagement.

2007 Sep 21: Programmes Internationaux D’Echanges v Grijalva

  • Defamation, civil conspiracy, interference with business relations and interference with contract. (Appellants’ Appendix (“AA”) 38-49.)
  • PIE’s complaint alleged that Grijalva and CSFES made false or misleading statements about PIE, its students and affiliates in the U.S., including ASSE and World Heritage. (AA 40-49.)
  • The complaint specifically alleged that Grijalva contacted the parents of a PIE student by email and falsely claimed that “all too often students are placed [by PIE and its affiliates] in the homes of convicted felons and registered sex offenders.” (AA 41.)
  • The complaint further alleged that Grijalva contacted the French Consulate regarding the enrollment of a French PIE student into a North Carolina high school, and that
  • Grijalva contacted a French PIE student in Missouri by email and said “PIE France is not interested in the safety and welfare of its students.'”(AA 42.)

2007 Sep 21: P.I.E. files Complaint and Motions for Temporary Restraining Order and Preliminary Injunction against Grijalva and Beddick

2007 Sep 21: Court issues Temporary Restraining Order Against Grijalva and Beddick

2007 Dec 20: Preliminary injunction barring Grijalva from contacting PIE’S students, their natural families and host families. (AA 51-54.)

2008 Feb 8: ASSE and World Heritage v Grijalva

  • Alleged that Grijalva defamed ASSE, interfered with ASSE’s business relationships and contracts, and disseminated knowingly false, malicious and misleading information to students in the ASSE program. (AA 56-59.)

2008 Mar 11: Notice of Related Case Filed By Danielle Grijalva; CSFES

2008 Mar 11: Grijalva v Brandt (this case)

A complaint filed with a retaliatory motive was not barred by the anti-SLAPP statute, so long as the claims in the complaint arose from statements or conduct independent of ASSE’s participation in the North Carolina litigation.

2008 Mar 24: First Amended Complaint Filed By Danielle Grijalva; CSFES.
2008 Apr 24: Demurrer Filed By ASSE International, Inc.; Helga Brandt.
2008 Apr 24: Motion To Strike Filed By ASSE International, Inc.; Helga Brandt.

2008 May 30: Preliminary Injunction Against Grijalva

2008 Jul 16: Notice of Non-Receipt of Opposition
2008 Jul 21: Ex Parte Application for Late Opposition filed by Danielle Grijalva
2008 Jul 21: Opposition to Motion to Strike filed by Danielle Grijalva
2008 Jul 21: Declaration of Danielle Grijalva
2008 Jul 21: Second Amended Complaint by Danielle Grijalva; CSFES
2008 Jul 22: Declaration of David Allen
2008 Jul 22: Opposition to Ex Parte Filed By ASSE International, Inc.
2008 Jul 24: Ex Parte Denied.
2008 Jul 25: Motion to Strike Granted. Attorney fees denied.
2008 Jul 25: Demurrer off calendar as Moot
2008 Aug 04: Motion for Attorney Fees by Defendants
2008 Oct 17: Opposition by Plaintiff
2008 Oct 31: Attorneys Fees Granted

2009 Mar 08: Appeal Brief

2009 May 01: Reply Brief

Electing to work on one client’s matters at the expense of another client does not constitute excusable neglect …. The trial court properly exercised its discretion to deny consideration of Appellants’ late-filed opposition.

2009 Jul 20: Grijalva-Appeal Decision

ASSE and Brandt did not demonstrate that the defamatory statements alleged in plaintiffs’ amended complaint were made in a judicial proceeding or in connection with an issue under consideration or review by a judicial body.

Accordingly, the trial court erred in concluding that ASSE and Brandt carried their burden of demonstrating that plaintiffs’ action arose from petitioning activity that is protected by the anti-SLAPP statute.

2010 Sep 01: PIE (France)/ASSE/World Heritage v Beddick/Grijalva: 07 CVD 6565 (Forsyth)

Voluntary dismissal without prejudice

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Related Links:

2008 Jun 26: The Oklahoman: Advocate for City Exchange Students Says Order Defies Free Speech
North Country Gazette: Agencies Seek to Silence Student Protection Group

2007 Sep 21: Programmes Internationaux D’Echanges v. Grijalva: Conspiracy; Defamation; Tortious Interference

From DMLP

Location of Filing/Threat: North Carolina
Source of Law: North Carolina

Court Name: North Carolina District Court, Forsyth County
Court Type: State

Case Number: 2007-CVD-656

Threat Type: Lawsuit
Date:  09/21/2007
Status: Pending
Location:  North Carolina
Disposition: Injunction Issued
Verdict/Settlement Amount: n/a
Legal Claims: Conspiracy; Defamation; Tortious Interference

PARTIES

Party Issuing Legal Threat: Programmes Internationaux D’Echanges; ASSE International, Inc.; World Heritage, Inc.

Type of Party: Organization
Location of Party: California; New York; France
Legal Counsel: Robert M. Elliot; Richard D. Menaker (Programmes Internationaux D’Echanges)

Party Receiving Legal Threat: Danielle Joyce Grijalva; Veronica Beddick

Type of Party: Individual
Location of Party: California; North Carolina
Legal Counsel: Jennifer Arno (Grijalva)

DESCRIPTION

Programmes Internationaux D’Echanges (P.I.E.), a French nonprofit that organizes student exchange programs, filed suit against Danielle Grijalva, director of the Committee for Safety of Foreign Exchange Students (CSFES), over emails and postings on CSFES’s website that criticized the organization’s handling of students. P.I.E.’s complaint asserted claims of defamation, civil conspiracy, interference with contract, and interference with business relationships. The suit also named as a defendant Veronica Beddick, a former employee of ASSE International, a nonprofit that assisted in student placements, alleging that she provided confidential information to Grijalva and assisted in the disputed acts.

In emails and postings to the CSFES website, Grijalva allegedly accused the plaintiff organizations of numerous wrondoings related to their treatment of foreign exchange students.

According to the complaint and other court filings, the accusations included that the organizations failed to place students in schools, failed to place students in permanent homes, placed students in homes with felons, and otherwise violated laws that regulate foreign exchange programs.

According to press reports, Grijalva has said that she sent an email to the father of a foreign exchange student at the student’s request but that she has not engaged in any “mass effort” to contact students, their families, or host families.

P.I.E.’s complaint included a request for a temporary restraining order against Grijalva and Beddick. On September 21, 2007, the court granted the request, ordering the defendants to cease communicating with P.I.E. students as well as the students’ familes, host familes, and educational institutions. The temporary restraining order, by its terms, expired after 10 days unless the court renewed it.

On Dec. 12, 2007, the court granted a preliminary injunction against Grijalva that reiterated the prohibition on direct communication with students and others involved with the plaintiffs and further ordered her to refrain from disseminating false or misleading information about the plaintiff organizations via email or her website.

On May 30, 2008, the court granted a near-identical preliminary injunction against Grijalva brought by P.I.E. associates (and plaintiff-intervenors) ASSE and World Heritage, Inc.

2009 Jun 20: Grijalva v. Brandt

The August 8, 2008 order is reversed. Grijalva is entitled to costs on appeal.

D053856.

DANIELLE GRIJALVA et al., Plaintiffs and Appellants, v. HELGA BRANDT et al., Defendants and Respondents.

Court of Appeals of California, Fourth Appellate District, Division One

July 20, 2009

B. Application

The primary arguments that ASSE and Brandt advanced in their anti-SLAPP motion in the trial court in attempting to carry their threshold burden of demonstrating that plaintiffs’ claims arose from protected activity are contrary to well established law. First, ASSE and Brandt claimed that the “`convenient’ “timing of the filing of this action, a “mere one month” after ASSE filed its complaint in intervention in the North Carolina action, demonstrated that plaintiffs’ lawsuit arose from ASSE’s participation in the North Carolina proceeding. However, as noted above, the Supreme Court has clearly held that the fact that a party files an action after protected activity has taken place does not demonstrate that the action arose from the protected activity. (Cotati, supra, 29 Cal.4th at p. 69 [fact that municipality’s action was filed “shortly after” owners filed separate action did not mean that municipality’s action arose from owner’s action].)

Second, ASSE and Brandt claimed that plaintiffs’ action was a “clearly-retaliatory lawsuit.” Even assuming that plaintiffs filed this lawsuit in retaliation for ASSE’s participation in the North Carolina action, any such retaliatory motive would be irrelevant in determining the merits of ASSE and Brandt’s anti-SLAPP motion. (Cotati, supra, 29 Cal.4th at p. 77; see Kajima Engineering and Const., Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921 [“Kajima wrongly focuses on the City’s filing of the amended cross-complaint as a supposed act of retaliation without demonstrating, as it must under the anti-SLAPP statute, that the amended cross-complaint `alleges acts in furtherance of [Kajima’s] right of petition or free speech in connection with a public issue'”].)9

ASSE and Brandt made the related argument in the trial court that, “The SLAPP character of Plaintiffs’ action is . . . clear from the obvious insufficiency of the causes of action.” We are not aware of any authority, and ASSE and Brandt have cited none, that indicates that the insufficiency of the allegations in a plaintiff’s complaint may be used to demonstrate that the claims alleged therein arise from a defendant’s protected activity.10 ASSE and Brandt apparently intend to suggest that that the alleged insufficiency of the plaintiffs’ amended complaint demonstrates that plaintiffs’ motive in filing the action was improper. (Cf. In re Marriage of Gong and Kwong (2008) 163 Cal.App.4th 510, 516 [“`”the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay”‘”]). However, as noted above, a plaintiff’s motive in filing an action is irrelevant for purposes of determining the merits of an anti-SLAPP motion. (Cotati, supra, 29 Cal.4th at p. 77.)

Any alleged insufficiency in the plaintiffs’ amended complaint regarding the context in which the purported defamatory statements were made would tend to negate, rather than support, the conclusion that ASSE and Brandt demonstrated that the statements were made in a judicial proceeding or in connection with an issue before a judicial body. ASSE and Brandt implicitly acknowledged this in their anti-SLAPP motion when they stated, “Because plaintiffs have not sufficiently alleged Defendants’ allegedly `defamatory statements’ in the instant action, the exact origin of and circumstances surrounding the alleged statements are currently unknown.”

A defendant seeking to carry its burden of demonstrating that a plaintiff’s action arises from the defendant’s participation in a judicial proceeding does not carry this burden by demonstrating that the statements that form the basis of the action were made under “unknown” circumstances. Further, a defendant seeking to establish that the plaintiffs’ cause of action arises from protected activity is not limited to the plaintiffs’ pleadings. Rather, in seeking to carry this threshold burden, a defendant may submit declarations attesting to the context in which statements that form the basis of the plaintiff’s claims were made. (See, e.g., Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1057 [defendant submitted declarations of its attorney and employee demonstrating that statements forming the basis of plaintiff’s complaint arose in connection with judicial proceeding]; § 425.16, subd. (b)(2) [trial court shall consider “supporting and opposing affidavits stating the facts upon which the liability or defense is based,” in ruling on anti-SLAPP motion].) In this case, ASSE and Brandt provided no such declarations. Their assertion in their anti-SLAPP motion that the statements forming the basis of plaintiffs’ claims “appear to directly relate to ASSE’s participation in the North Carolina action,” does not establish that this is in fact so. (Italics added, formatting omitted.)

While ASSE and Brandt did request that the trial court take judicial notice of various documents from the North Carolina proceeding, there is no reference in the plaintiffs’ amended complaint to the North Carolina proceeding, and nothing in the complaint suggests that plaintiffs seek to hold ASSE and Brandt liable for statements they made in any pleading in the North Carolina action. On the contrary, rather than alleging that ASSE made the statements in a judicial proceeding, plaintiffs’ amended complaint suggests that ASSE’s statements were “directed to the parents of the students and to citizens with concerns regarding the problems caused by . . . ASSE’s misconduct . . . .” (Italics added.)

Further, while plaintiffs’ amended complaint alleges nine defamatory statements,11 ASSE and Brandt’s anti-SLAPP motion fails to address, in any fashion, eight of these statements. The only allegation from the plaintiffs’ amended complaint that ASSE and Brandt mention in their anti-SLAPP motion is plaintiffs’ allegation that the defendants had falsely accused Grijalva of “making `false statements.'” ASSE and Brandt argued in their anti-SLAPP motion that this allegation arose from ASSE’s allegation in its complaint in intervention in the North Carolina action that Grijalva had disseminated “false and misleading information.”

Even assuming for the sake of argument that ASSE and Brandt demonstrated that this single allegation is premised on a statement made in the North Carolina pleading, or in connection with an issue under review in the North Carolina action, this would not satisfy their burden to demonstrate that the gravamen of plaintiffs’ claims arises from protected activity. (Martinez v. Metabolife Intern., Inc., supra, 113 Cal.App.4th at p. 188.) “[C]ollateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.” (Ibid.)

In sum, ASSE and Brandt did not demonstrate that the defamatory statements alleged in plaintiffs’ amended complaint were made in a judicial proceeding or in connection with an issue under consideration or review by a judicial body. (§ 425.16, subd. (e)(1) and (2).) Accordingly, the trial court erred in concluding that ASSE and Brandt carried their burden of demonstrating that plaintiffs’ action arose from petitioning activity that is protected by the anti-SLAPP statute.12

IV.

DISPOSITION

The August 8, 2008 order is reversed. Grijalva is entitled to costs on appeal.

WE CONCUR:

HALLER, Acting P. J.

O’ROURKE, J.

FootNotes

1. “CSFES” is the name plaintiffs used in their complaint to identify this party. Although CSFES appears to be an acronym, plaintiffs did not provide the full name of the entity in their complaint. In their complaint, plaintiffs alleged that both Brandt and Motycka were agents or employees of ASSE. Motycka is not a party to this appeal.

2. “SLAPP” stands for Strategic Lawsuit Against Public Participation. (See Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.

3. Plaintiffs also claim that the trial court abused its discretion in refusing to allow them to file a late opposition to the anti-SLAPP motion. In light of our reversal of the order granting the anti-SLAPP motion, we need not consider this contention.

4. The original complaint indicated that the case was a “Limited Jurisdiction” case, i.e. one in which the amount in controversy did not exceed $25,000 (§ 85). The amended complaint prayed for a judgment within the “unlimited jurisdictional limit” of the trial court.

5. Several of the pleadings contained in the record, including the demurrer, do not bear a file stamp. We assume for sake of this decision that the pleadings that do not bear a file stamp were filed on the dates indicated in the documents.

6. Implicit in the court’s comment is that the court’s docket no longer precluded holding a hearing on the motion.

7. In her notice of appeal, Grijalva refers to the “judgment entered on August 8, 2008.” (Italics added.) We construe the notice of appeal as referring to the August 8, 2008 order granting the anti-SLAPP motion. The order is appealable. (§ 904.1, subd. (13).)

8. ASSE and Brant did not argue in the trial court, and do not argue on appeal, that either of the plaintiffs’ causes of action arose from statements or conduct defined in section 425.16, subdivision (e)(3) or (4). Accordingly, we restrict our analysis to section 425.16, subdivision (e)(1) and (2).

9. ASSE and Brandt reiterate these arguments on appeal, claiming that plaintiffs’ filed this “retaliatory lawsuit” a “mere thirty-two days after ASSE intervened in the North Carolina action.”

10. We express no view in this opinion on the merits of ASSE and Brandt’s demurrer to the plaintiffs’ amended complaint. As noted previously, the trial court concluded that the demurrer was moot, in light of its ruling granting the anti-SLAPP motion.

11. The nine statements are quoted in full in part II, ante.

12. Although the trial court ruled that ASSE and Brandt demonstrated that plaintiffs’ amended complaint arose from “statements made by Defendants in the complaint-in-intervention in the North Carolina case,” Brandt did not make any statements in ASSE’s complaint-in-intervention. (Italics added.) Further, ASSE and Brandt did not argue in their anti-SLAPP motion that Brandt had any involvement in the North Carolina proceeding. However, we need not resolve whether an employee of a entity may prevail on an anti-SLAPP motion based on its employer’s alleged petitioning activity under these circumstances, in light of our conclusion that ASSE and Brandt failed to demonstrate that plaintiffs’ amended complaint arose from ASSE’s participation in the North Carolina proceeding.

2008 May 07: Agencies Seek To Silence Child Protection Group

Posted on Wednesday, 7 of May , 2008 at 10:24 am

OCEANSIDE, CA—A child protection organization is being taken to court by student exchange placement agencies due to efforts to protect foreign exchange students.   

Danielle Grijalva of Oceanside, CA, director of the Committee for Safety of Foreign Exchange Students (CSFES), will be in court in North Carolina on May 15 facing student placement agencies, which have obtained a restraining order to thwart her efforts. At issue is whether a child protection advocate should be restrained from reporting incidences of abuse of foreign exchange students. 

CSFES is a non-profit advocacy group for the protection of foreign exchange students. A New York teacher allegedly witnessed the physical assault of a French female exchange student by her ASSE International, Inc.  representative and sent a complaint to ASSE. The teacher provided the Committee for Safety of Foreign Exchange Students (CSFES) a copy of his complaint, complete with translated letters from four exchange students who witnessed the assault. The teacher’s complaint was forwarded by CSFES to the Buffalo Police Department, the National Center for Missing and Exploited Children (NCMEC) and the U.S. Department of State. 

On Sept. 26, 2007, the ASSE partner in France, Programmes Internationaux D’Echanges (PIE France) filed a Complaint and Motion for Temporary Restraining Order, Preliminary Injunction and Expedited Discovery against the director of CSFES. ASSE and World Heritage, Inc. filed a separate Complaint and Motion for Temporary Restraining Order against the director of CSFES.“Do I believe this is an intimidation tactic?  Absolutely.”  said Danielle Grijalva, director of CSFES.  “Let me emphasize that children’s safety must be first and foremost in foreign exchanges and every other aspect of education.  We want to ensure that visitors to our country enjoy a safe and enriching academic and cultural experience that builds bridges for future collaboration, be it social, educational or economic.”Grijalva remains firm, “Abuse by those in positions of trust will not be tolerated.”  The May 15 hearing will be held at the Forsyth County Hall of Justice, 200 North Main Street, Courtroom 4C, Winston-Salem, North Carolina  

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1999 Jul 27: Exchange student testifies in rape case

1999 Jul 29: Witness: Student, host father had consensual sex

1999 Aug 05: Company blamed in exchange student sex case

1999 Aug 05: Exchange student may get USD 649 000 for assaults

2000 Nov 15: 233 F. 3d 441 – Kristin Beul, et al. v. Asse International, Inc., et al.

2007 Sep 03: Complaint to USSD re. ASSE temporary homes

2007 Sep 21: Programmes Internationaux D’Echanges v. Grijalva

2008 Jun 26: Advocate for exchange students says order defies free speech

2008 Nov 03: Grijalva v. Brandt

2009 Feb 04: Foreign exchange program controversy

2007: ASSE blames student for problem-family

Sometimes students are placed with host-families that are trouble. One of the things that happen to the students if they complain about their situation is that, if they are lucky, get re-located, or unlucky, get sent back to their home countries. The below example shows the latter:


Regarding ASSE International participant:  Marc Jaubert of FRANCE

Dear Ms. Melofchik, Ms. Dickerson, Ms. Findlay, Ms. Martin and Ms. Lawrence:

Marc Jaubert of France left Knoxville, Tennessee on August 25, 2007 and is currently living with host family:

Stuart and Heidi Jackson
128 N. Van Brant Blvd.
Kansas City, MO  64123
816-418-3318

It has been reported to CSFES by ASSE International representative Amber Wallen that Marc has been crying uncontrollably since being placed in this home and feels unsafe in the neighborhood.  Amber Wallen’s contact information:  home telephone:  865-947-2823.

Marc Jaubert’s ASSE International area representative in Missouri is:  Christina Evans, telephone:  816-617-5173.

Last week, Ms. Evans gave an ultimatum to Marc that he needs to adjust or he will be sent back home.

Please be advised that on Tuesday, September 4, ASSE International is repatriating Marc Jaubert.

At approximately 8:20 am on Monday, September 3, ASSE International Regional Director Shannon Cochran will remove Marc Jaubert from the Jackson residence and will depart Missouri to France on Tuesday, September 4.

Note the names of former exchange students who were also not able to continue to reside in this residence Marc was placed:

  • Marianne of Norway
  • Rosario of Italy

Please be informed that a student from the Czech Republic has already been selected to be placed in the above-referenced residence.

It is an obvious pattern to blame the student for the placement breakdown.  This is not what the natural parents agreed to when they sent their son/daughter to the United States.

Respectfully,

Danielle Grijalva, Director
Committee for Safety of Foreign Exchange Students
P.O. Box 6496 / Oceanside, CA 92052
www.csfes.org / 866-471-9203

ASSE: Three students without permanent host-families

Dear Danielle,

I confirmed that the following two Thai students do not have a permanent family as of yet. I am unsure if the third student has a permanent family or not.  I’ve been out of touch with her for a week.  I’m including their ASSE IDs in case they are helpful.

3 thai students

You may also want to talk to Ms. Syracuse and Ms. Costuros.  I have heard that these women have felt pressured into keeping their students beyond the 30 days they agreed to.  In fact, the Donelson’s asked all the host families to sign the attached document without providing them a copy to keep. It was received as attachment by some host families, however, some of the host families were elderly persons and unlikely online or computer literate. I have heard that the Donelson’s then told these women that by signing this paper they agreed to keep the students for as long as it takes to find a host family.  If you read the agreement, it says nothing like that.

ASSE: Host-family and exchange student needs ignored

I am a host parent for a Thai student who has been with us since 8/25/07.  My family and I are new to the exchange program, and this is our first exchange hosting experience.  I can tell you that I have not been pleased with the experience thus far, primarily due to the inadequacy of the agency we hosted through – ASSE.

First, our student arrived on 8/25 and was met at the airport by my family—there was no ASSE rep to be found.  Not only that, we have yet to receive a call, visit, or other communication from a local rep for ASSE.  I have complained to Ms. Helga Brandt (Western Regional person at ASSE), only to be quoted about minimum State Department requirements and that ASSE was not in violation of any of them.  From day one, our student has shown a bare minimum of English speaking and communicating capability. We were told by her high school that unless she raised her ability to a minimum level, she would be removed from school per the school district’s policy.  I voiced our concerns to Ms. Brandt and was told that our student had passed a ESL test (46 scored with 45 being a passing grade) and she sent me a PDF of a scanned test score sheet which had nothing more than multiple choice bubbles filled in.  I explained to her that a multiple choice test answer sheet does not constitute a minimum capability, and she replied that ASSE was not in violation of anything.

I am not happy with the way ASSE has handled our situation thus far.  ASSE tells me that our student has a local rep, though none of us has yet to meet him/her.  Last night our student tells me that there are 5 exchange students in New Mexico that she went to English camp with that do not have host families or a school to attend.  She has been receiving frantic phone calls from them since Saturday to ask for help in locating host families.

I find it appalling that a local rep was not present at the airport when our student arrived, and has yet to call us or our student.  I have spoken to other host families that have hosted through Rotary International, and they tell me a whole different story of what a wonderful experience their hosting is.  One gentleman and his family have hosted 27 kids over the years.  In the span of 4 short weeks,  have been soured by our experience and will not host again

Dr. Peter C. Riley
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