- Pre-History of the Lawsuit (2008-2011)
- Key Issues During Trial Period (February – July 2012)
- Lawsuit Aftermath (August 2012 – Early 2013)
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Note: I split the Narrative Account into two parts. Page 02A Narrative Account and Analysis: The Lawsuit is for events directly related to court processes, from events leading up to the court case to the decisions and reactions to it. Page 02B Narrative Account and Analysis: “Sidebar Issues” explores other topics indirectly related to the legal process of the trial, but of direct interest to the spiritual abuse survivor community. While the timelines do overlap, I felt it would be easier to grasp the material in each if they were separate instead of all meshed together.
Also, let me repeat that understanding this court case will require reading the court documents and taking time to reflect. I have done the best I can to make the principles involved clear and as accessible as possible, but there is only so much that can be done in a case study like this to guide readers through material that is this dense with detail. Hopefully the format of presenting facts and then (often) analysis and commentary is of help.
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~ Pre-History of the Lawsuit (2008-2011) ~
Note: The following sections share some of the pre-history of the lawsuit, as written by Julie Anne Smith in her BGBC Survivors blog. Additional materials may be added at a later time to address additional aspects of the period leading up to the BGBC defamation lawsuit.
BGBC Survivors Blog Post #1 – February 24, 2012
This blog has been set up primarily as a safe haven for those who suffered at the hands of the pastor and/or members (perhaps unknowingly) of Beaverton Grace Bible Church. If you would like me to post your story, please send to: email@example.com Because of the nature of this situation, I understand that some will want to remain anonymous and I fully respect that choice.
As I have gone through this process personally and have read books, scoured the internet for understanding of what we went through, I am aware that others who may not have gone to BGBC will venture upon the site. You may read something here that sounds very similar to your church experience, just as I did on other blogs/websites. You are free to comment and respond, too. Sadly, this is not an isolated church experience and my heart goes out to you, too! You are not alone.
When you post anonymously on my Blogger blog, I am unable to see any identifiable information (ISP addresses, etc), so please know that this is a safe place to share your story or comment.
If you have ideas for discussion, please send them along to: firstname.lastname@example.org.
BGBC Survivors Blog Post #2 – February 24, 2012
Somehow someone has been able to manipulate the Google reviews so that the church members’ reviews stay on top, pushing down the negative reviews. Below is a new review today. I had completely forgotten about the weird foot washings and triple-dipping baptisms. That is why this blog can be very helpful. When you are deeply involved in a church like this, things that seem normal aren’t really normal once you have left and are on the outside and can think clearly. To elevate foot washing to the same level as communion? Really? No co-ed swimming? Thank you, former member, for your honest review.
BGBC Survivors Blog Post #3 – February 25, 2012
Somehow, the powers that be at Google have removed my legitimate reviews of Beaverton Grace Bible Church, yet have allowed Chuck O’Neal’s reviews of me on the Google review site of the church. I wasn’t aware that if you search Beaverton Grace Bible Church on Google, that my name was up for review. I thought the Google Review forum is to review the site, not reviewers. How can a man yield that much power to convince Google to remove posts and let his reviews stay when they do not even constitute as reviews? He has two reviews of me posted – both with 5 stars. Before he changes, them, I want to post them here and then will address a number of issues.
Interestingly, within 2 hours of publishing the first post on this blog, Chuck revised an earlier review and had this threat for me and “many of those involved” in a threatened defamation lawsuit. Defamation is based on false accusations. He will have a hard time in court proving that my words are defaming. I wouldn’t waste my time on defamation – what is there to gain in that? I will, however, sacrifice my time and energy in speaking the truth when there is abuse of power going on and lives are at risk.
Admin note: If you click on the links below, you will see that the reviews have since been edited (in fact, multiple times). Below is what was on the Google review site as of the date of this original posting.
Chuck O’Neal – Feb 25, 2012
DEFAMATION IS A CRIME: Pastor Chuck O’ Neal, his wife, his children, and Beaverton Grace Bible Church as a whole, have suffered JulieAnne’s hateful lying slander for well over three years. After seeking counsel from a pastor on staff with Grace Community Church (under Pastor John MacArthur) and reading him several excerpts from JulieAnne’s endless defamation, he recommended that we FILE A LAWSUIT in an appeal to Caesar as the Apostle Paul did when falsely accused of crimes against God and the state. The lawsuit has been filed in the Washington County courthouse. JulieAnne and many of those involved in her present and historic slander will be served within the week. Her many lies and vicious criminal accusations will not stand in the light of day in the Washington County courthouse or in the coming courtroom before God. OVER THREE YEARS AGO the reviewer known as JulieAnne or “BROWN” was Biblically put out of Beaverton Grace Bible Church for ongoing vicious slander. You can see my 2009 response to her in the reviews below .
Chuck O’Neal – Nov 18, 2009
JulieAnne’s Destructive Slander Continues To Whom It May Concern: Almost a year ago JulieAnne and her husband were Biblically put out of Beaverton Grace Bible Church with a group of families and individuals that were engaged in ongoing divisive slander. After attending many churches and leaving them in a similar manner, the group has now splintered. Many of those in this factious group no longer attend church at all. It is sad to see that JulieAnne remains steadfast in her destructive behavior. For obvious reasons we exhort you to heed the following Scriptures: Prov 6:16-19 16 These six things the LORD hates, Yes, seven are an abomination to Him: 17 A proud look, A lying tongue, Hands that shed innocent blood, 18 A heart that devises wicked plans, Feet that are swift in running to evil, 19 A false witness who speaks lies, And ONE WHO SOWS DISCORD AMONG BRETHREN. Prov 16:28 A perverse man SOWS STRIFE, And A WHISPERER SEPARATES THE BEST OF FRIENDS. Prov 26:20 Where there is NO WOOD, THE FIRE GOES OUT; And where there is NO TALEBEARER, STRIFE CEASES. Rom 16:17-18 NOW I URGE YOU, BRETHREN, NOTE THOSE WHO CAUSE DIVISIONS AND OFFENSES, contrary to the doctrine which you learned, and AVOID THEM. 18 For those who are such do not serve our Lord Jesus Christ, but their own belly, and by smooth words and flattering speech deceive the hearts of the simple. Titus 3:9-11 But AVOID FOOLISH DISPUTES, genealogies, CONTENTIONS, and strivings about the law; for THEY ARE UNPROFITABLE AND USELESS. 10 REJECT A DIVISIVE MAN AFTER THE FIRST AND SECOND ADMONITION, 11 KNOWING THAT SUCH A PERSON IS WARPED AND SINNING, being self-condemned. It is our prayer that there will be no more wood thrown upon the fire of contentiousness, strife, discord, and division. It is our prayer that the fire will go out and that the body of Christ at BGBC will be able to press on “in one spirit, with one mind striving together for the faith of the gospel” (Phil. 1:27). It is our prayer that those who started the fire and have cut, stacked, and stoked much wood upon it, will repent, for God’s glory and their blessing. If you have any questions, please contact the pastor and elders. May we be evermore convinced of mankind’s sinfulness and of our need for God’s amazing grace through faith in His beloved Son, Jesus Christ our Lord. God STILL has the whole world and His Church in His very capable hands. For Christ and His Church, Pastor Chuck O’Neal, Elder Dave Loynes, Elder Dale Weaver
NOTE: The following screenshot of Mr. O’Neal’s Google Review of November 18, 2009, has been added here for the BGBC Defamation Lawsuit Archive, to illustrate the above text from Julie Anne’s blog post. You can compare/contrast this version with the typed text above to see if there has been editing. Click on the image below to link to a larger version that is more readable.
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~ Key Issues During Trial Period (February – July 2012) ~
February 2012 – Plaintiffs File the Lawsuit;
Julie Anne Smith Starts “BGBC Survivors” Blog
February 22, 2012 – LAWSUIT INSTIGATED WITH FILING OF “COMPLAINT”
The actual lawsuit events started with the filing of the original eight-page Complaint on February 22, 2012, charging defamation and asking for damages of $500,000. In addition, the Complaint also states that “Plaintiffs intend to file a motion seeking permission to allege a claim for punitive damages” (page 6).
The original Complaint that started the lawsuit process contained 17 allegations of defamation against four defendants. Here are the defendants, in the order cited in the Complaint.
- Julie Anne Smith (11 allegations).
- Jason Stephens – son of Kathy Stephens (two allegations).
- Hannah Smith – daughter of Julie Anne Smith (one allegation).
- Kathy Stephens (three allegations).
Later changes would involve dropping two of the defendants – Jason and Kathy Stephens – and adding another defendant –Meaghan Varela.
A failure by the defendants to respond by their deadline to the O’Neal/BGBC Complaint would have meant automatic default and loss of the lawsuit for them, and thus incur liability to pay the full amount of damages asked, half a million dollars. Understandably, all four decided to seek for legal representation. They began their search.
ANALYSIS/COMMENTARY – MEDIA AND MEDIATION
When news of the lawsuit filtered into the broader Christian community, theological questions naturally arose about the legitimacy of filing a civil suit instead of settling it within the church, either through a process of communication, church discipline, mediation, etc., as appropriate to the situation. As claimed in Mr. O’Neal’s Google Review of February 25, 2012 (see text in above section), supposed church discipline did not settle the matter, as far as he was concerned.
Also, as best I can tell from my research, there were several points along the way when appeals were made to Mr. O’Neal for outside mediation or to otherwise resolve things without this civil suit. This included representatives from Grace Community Church (GCC; led by John MacArthur). As we will see shortly, GCC employees spoke with Mr. O’Neal when he attended their annual Shepherds’ Conference in March 2012 and offered to mediate. However, he declined and insisted on having his day in court.
In various of Mr. O’Neal’s online comments in various places in 2012-2013, he seems to have seen a civil suit as the only remaining option. This was because of Ms. Smith’s online comments and messages, her later blogging (which began on February 24, 2012, at a time when she did not even know yet about the lawsuit), and his ongoing charges that she was defaming him and BGBC. Apparently, for Mr. O’Neal, there was no letting go of the alleged offenses, of settling out of court through mediation, or of withdrawing the lawsuit.
It is important to bring this up at the outset of the narrative about the lawsuit period of the Beaverton Grace Bible Church v. Smith case, because this kind of insistence on having his way went on, long after the trial was over because the judge found for the defendants and dismissed Mr. O’Neal’s lawsuit July 23, 2012. Here is an example of that hardened attitude in action, from comments on Mr. O’Neal’s blog, January 10, 2013 – almost six months after he lost his case. He wrote in early 2013 about events of January 2009, and the alleged offense of Tim Varela and his (lawsuit defendant) wife Meaghan, including an allegedly false report to DHS/Child Protective Services that led to his being investigated. A commenter named Jeff challenged him to move on. In response, Mr. O’Neal stated:
We would love to “get over this issue and move on with life.” It is our lives and church that they are trying to destroy with historic and ongoing criminal accusations. When they cease, desist, and confess what they have done… we will gladly “move on with life.” [Chuck O’Neal, January 10, 2013]
Whether that will ever happen is anyone’s guess. I suspect the Varelas (and Julie Anne Smith, for that matter) would not be able to change sufficiently for the standards of Mr. O’Neal. But, theologically speaking, I am uncertain where the Bible mandates that we hold on to alleged offenses against us by others, not letting go of them until THEY change. Certainly that does not seem to be consistent at all with the way of Jesus, who forgave even those who brutalized Him. Despite the theological issues involved here, for now it will be the legal issues that set the framework for the rest of this narrative account – which is, as a reminder, purposely written with a bias toward the defendants’ point of view although it uses the plaintiffs’ documents as the framework for exploration and analysis.
March – April 2012 – Defendants Hire Attorneys;
Anti-SLAPP Motion Filed
March 12, 2012 –DEFENDANTS HIRE LEGAL COUNSELS
On March 12, Julie Anne and Hannah Smith hired Linda K. Williams of Portland, Oregon, as their representative to respond to the lawsuit.
Around that same time early in March, Kathy and Jason Stephens hired Herbert G. Grey of Beaverton, Oregon, as their attorney.
They began preparing their declarations and responses for the court.
April 26, 2012 –DEFENDANTS FILE ANTI-SLAPP MOTION
The defendants’ attorneys filed these responses and also, Ms. Williams filed an anti-SLAPP motion on all the defendants’ behalf on April 26.
SLAPP stands for Strategic Lawsuit Against Public Participation. These are civil suits whose purposes are generally designed to silence or intimidate opponents. SLAPP suits are often frivolous and insidious, used by individuals or entities with “deep pockets” – ample funds to outlast and outlawyer their opponents.
This paragraph from the wikipedia article on SLAPP and anti-SLAPP is very instructive about the SLAPP type of defamation lawsuit. I strongly suggest that ALL court documents, blog posts, blog comments, news interviews, and any other primary and secondary sources of information about the O’Neal/BGBC case should be carefully evaluated with this information in mind:
“Other widely mentioned elements of a SLAPP are the actual effectiveness at silencing critics, the timing of the suit, inclusion of extra or spurious defendants (such as relatives or hosts of legitimate defendants), inclusion of plaintiffs with no real claim (such as corporations that are affiliated with legitimate plaintiffs), making claims that are very difficult to disprove or rely on no written record, ambiguous or deliberately mangled wording that lets plaintiffs make spurious allegations without fear of perjury, refusal to consider any settlement (or none other than cash), characterization of all offers to settle as insincere, extensive and unnecessary demands for discovery, attempts to identify anonymous or pseudonymous critics, appeals on minor points of law, demands for broad rulings when appeal is accepted on such minor points of law, and attempts to run up defendants’ costs even if this clearly costs more to the plaintiffs.” (http://en.wikipedia.org/wiki/Anti-SLAPP)
Typically, an anti-SLAPP motion is filed to counter SLAPP defamation lawsuits. It was designed to protect defendants from frivolous lawsuits. Many states have some version of an anti-SLAPP statute. Oregon is one of them. (As of January 2013, there is no federal anti-SLAPP statute in place. However, according to the Public Participation Project, 29 states currently have a statute. Oregon’s statute is based on the one developed in California.)
ANALYSIS/COMMENTARY – ANTI-SLAPP
How does an anti-SLAPP work? As best I can understand and explain it in relatively non-technical language, the filing of an anti-SLAPP motion “freezes” or “suspends” the judicial process. So, the case does not go to a jury trial (as was requested in the O’Neal/BGBC lawsuit). Instead, the case goes before a judge and is given expedited treatment.
Also, filing of an anti-SLAPP motion means the suspension order goes into effect immediately. Neither plaintiffs nor defendants are allowed any further depositions or discovery process. This means they cannot search for additional evidence to support their case. (Apparently, the theory for stopping discovery and pushing up the court date schedule is that, should a civil suit prove to be unfounded or otherwise frivolous, the defendants will not have had to spend considerable time and funds to comply with the draining demands of the plaintiffs.)
This all means that the judge considers only the evidence at hand – making his/her decision based on the official Complaint documents from plaintiffs, any response documents from defendants, and any counter-responses. Plus, in-person presentations in the courtroom. In this kind of defamation/freedom of speech case, the burden of proof is on the plaintiffs to show substantial evidence that the allegations are “actionable items” of “provable facts” and the defendant(s) knowingly “defamed” by telling a lie (not an opinion, and not merely believing they were telling the truth) and did so with “absolute malice” (wreckless disregard). (There will be leads shortly on what these more technical issues mean.)
If the plaintiffs demonstrate their case clearly enough and the anti-SLAPP motion fails, the defendants could appeal. If the defendants’ appeal fails, then the lawsuit goes forward with discovery, depositions, jury trial if requested, and cross-examination. If the anti-SLAPP motion succeeds because the plaintiffs fail to give substantial enough evidence, then the lawsuit is over (unless the plaintiffs appeal).
So – since plaintiffs hold the responsibility to give “substantial evidence” that their allegations of the defendants’ statements indeed constitute “defamation,” the key implication in the Beaverton Grace Bible Church v. Smith is this: Once the anti-SLAPP motion went into effect, the plaintiffs and their legal counsels were pretty much stuck with working within what evidence they had already submitted. There are indicators from sources other than my opinion that the plaintiffs’ documents were poorly drafted, and done without consideration that an anti-SLAPP motion might be filed. (See some points from Ms. Williams’ perspective noted in the section below on “Before Going Farther #2.”) And all of this seemed to set the plaintiffs’ team off in an almost unrecoverable direction, right from the start.
Early May 2012 – Plaintiffs “Attempt to Circumvent”
the Anti-SLAPP “Stay of Discovery”
May 3, 2012 –PLAINTIFFS IGNORE ANTI-SLAPP PROVISIONS
The ground rule about suspension of discovery is important to this case. The anti-SLAPP motion filed on April 26, 2012, should have been seen by the plaintiffs as halting their process of deposing witnesses. However, many attorneys are unfamiliar with SLAPP/anti-SLAPP issues. Thus, exactly one week later after the suspension of discovery was in force:
“Plaintiffs … served a ‘notice’ of intent to depose other church members not named in the lawsuit on May 3, after the Special Motions had been filed, which was a violation of the automatic stay of discovery [ORS 31.150] arising from the earlier filed Special Motions. The attempt to circumvent the stay was not reasonable.” (Motion and Memorandum in Support of Awards of Stated Costs, Disbursements and Attorney Fees Filed by Julie Anne Smith, Hannah Smith and Meaghan Varela; filed August 20, 2012; page 6.)
Besides the fact that this action by the plaintiffs should not have happened, the reality that it did required the defense counsels to spend time on a response. They reminded the plaintiffs that their intent to question any other witnesses was out of order. And that extra work that should have been unnecessary ultimately meant a larger legal bill for the plaintiffs to pay when their lawsuit was dismissed – because they were then required to pay all court costs and reasonable attorneys’ fees for the defendants, who were the “prevailing party.”
Ms. Williams suggested there were other such moves by the plaintiffs that would eventually lead to their paying far higher costs in the award amounts. Those are detailed below, in the subsection on “Before Going Farther #2” (on problems with documentation and presentation), and in the Analysis/Commentary section following the entry for September 3 on Deadline to Contest Statement Details.
Before Going Farther #1:
Establishing the Ground Rules and Guiding Precepts
There are several very helpful resources for defining and interpreting the legal principles and precedents most relevant to the case of Beaverton Grace Bible Church v. Smith. I have already referred to the general assistance that the Citizen Media Law Project offers, and their links to the core six court documents.
The official court documents offer us a very important source for comprehending the many complex issues raised in this case, and for grasping its significance. Attorney Linda K. Williams in particular has done us all an immense service by using the defendants’ court Memorandum documents to educate us on relevant legal issues. She provides definitions of core concepts, and describes the history of U.S. case law for how we come by these principles. She lays out relevant U.S. and Oregon statutes, and shows how they should guide the legal reasoning as applied to the BGBC defamation lawsuit. And she writes as much of this as possible in language accessible to both laypeople and lawyers.
So, she has created a crucial resource, as these kinds of defamation lawsuits are not particularly common, especially those involving individuals and organizations dealing with religious issues. In fact, I believe anyone researching this case will find a practical framework for grasping the issues, responses, and decisions in this case by referring back to Ms. Williams’ list of seven key legal concepts. I have copied it below, leaving out the case citations.
This list is found in defendants’ Memo in Support of Special Motions to Strike – i.e., the reasoning behind the filing of an anti-SLAPP motion – on Page 26, Point G. The table of contents in that same document is also exceptionally well laid out to help us follow a logical line of reasoning.
G. SUMMARY OF LAW.
The following principles should guide the Court in evaluating the defamation claims:
- Statements expressed on the internet, especially on publicly accessed websites and interactive platforms, enjoy free speech and free exercise of religion protections of the First Amendment and Oregon Constitution.
- Only statements which are provable false are actionable as defamation.
- Opinion is not actionable. (Opinions which “do not imply facts capable of being proved true or false” are protected by the First Amendment.)
- A court must evaluate alleged “defamatory” meaning in the “full context” of remarks.
- Opinions based on stated or known facts are protected (regardless of whether others would reach different opinions reviewing those same facts).
- Rhetorical devices, such as irony, hyperbole and figurative language, are cues that statements are opinion.
- Statements of religious conviction and belief are not provably true or false and non-actionable (or non-justiciable) under the Free Exercise Clause of the First Amendment and absolutely protected under Oregon Constitution; and the court will not decide “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals.”
Given the nature of the legal process, it is understandable that the plaintiffs’ first two Complaint documents contained no citations of case law precedents or relevant sections of the Oregon State Constitution. While they might have put citations into these documents, they really only had a need to do so in their response of Opposition to Motion to Strike (13 pages). In that third major document, the plaintiffs referenced four legal cases and one Oregon statute. (Two of the four legal cases were also cited by the defendants.) The plaintiffs also cited “ORCP 18A,” which had no other identifying data or explanation of the acronym and which I finally located on the internet to be an acronym for “Oregon Rules of Civil Procedure.” I was surprised at the low number of case citations by the plaintiffs – this was their best opportunity to clearly develop a reasoned presentation of their case. It seemed to me they missed out.
That very low number of cases cited to support their opposition to the anti-SLAPP motion stands in stark contrast to Ms. Williams’ rather monumental Memo in Support of Special Motions to Strike (54 pages). Her document refers to 70 cases, two Oregon statutes, and six other references – mostly legal resources. Also, she alphabetized all referenced items within their category sections and she indexed all entries to the page numbers on which they could be found. Her Memo in Support of Special Motions to Strike regarding Amended Complaint (24 pages) included 13 cases in the “Table of Authorities.” Of these, eight cases cited were also used in the original Memo to Strike and five cases were new.
When we read the Order on Motion to Dismiss from Judge Fun, it is clear that he recognized the logical and legal case presented by Ms. Williams, and that he acted in the very ways she so persuasively argued were required of the court. All throughout Judge Fun’s written reasons for his decision, he refers to principles we find in Ms. Williams’ Point G, Summary of Law. He demonstrates in his language that he accepted the premises of the anti-SLAPP law: The burden of substantial evidence was with the plaintiffs. And yet, as the next section explores, the plaintiffs’ own presentations seem to have created most of the problems they experienced in attempts to persuade the court to find in their favor.
Before Going Farther #2:
Plaintiffs’ Troubles With Documentation and Presentation
Having given that overview of ground rules and guiding principles that ended up shaping the court’s reasoning, this seems the appropriate place to note other problems for the plaintiffs. I’ve alluded to what I believe are three key problems that plagued the plaintiffs’ team in documenting and presenting their case:
- The documents that the plaintiffs filed seemed poorly prepared and unclearly written.
- They did not consider the possibility that the discovery process might be halted by an anti-SLAPP motion.
- Other actions and/or attitudes ultimately ended up bringing the plaintiffs a higher final bill in tallying court costs and attorneys’ fees for the prevailing parties – the defendants.
This section looks at some aspects of those problems. This exploration should help set the stage for how the court dates and decision-making played out.
I thought about the best way to approach this. I decided it would be to let Ms. Williams speak to the general point through quotes from her Motion and Memorandum in Support of Awards of Stated Costs, Disbursements and Attorney Fees of Filed by Julie Anne Smith, Hannah Smith and Meaghan Varela (filed August 20, 2012). Then, I give some specific examples that I’ve drawn from the plaintiffs Opposition to Motion to Strike.
Examples from the Defendants’ “Motion and Memorandum in Support of Awards”
Here are examples drawn from all three defendants represented by Ms. Williams. These quotations from her “Motion and Memorandum in Support of Awards …” document mostly represent a combination of the three problems in documentation and presentation listed at the top of this section.
[…] All of the 17 claims against Julie Anne Smith and the 4 against Meaghan Varela were based on isolated words and phrases, and all lacked any context or explanation through properly plead innuendo, thus failed to conform to Oregon pleading rules [ORCP 18], indicating a lack of careful consideration prior to filing suit for $500,000.
The single claim against Hannah Smith was not well-taken. It is very unlikely many Oregon attorneys would have thought it reasonable to include this young woman in a suit for $500,000 in damages for her single online comment that the Plaintiffs’ were “no-way Biblical.” It is even more unlikely anyone would repeat the same allegation in the Amended Complaint after its weakness should have become evident from the discussion in the Smiths’ motions filed on April 27, 2012. Time attributable to ascertaining facts and drafting argument relating only to the claim against Hannah Smith is specifically shown as 5.1 hours (drafting the arguments on the term “bully” and hyperbole and sarcasm specific to the claim against her and arranging for her waiver of service), but in general, a modest portion of the effort on every memoranda and the oral arguments is both necessary and attributable to defending this frivolous claim against Hannah.
Plaintiffs served Defendant Varela with their Amended Complaint long after such deficiencies were first brought to Plaintiffs’ attention by the Special Motions and Memoranda in Support filed by the Smith Defendants on April 27 and May 1, 2012 (specifically relating to the Amended Complaint). Plaintiffs nevertheless served Varela with the Amended Complaint about one month later, requiring her Defense Counsel to mount a full and complete defense, shown in the time records to be another 23.9 hours of effort at full billing rate and 4.6 hours at reduced rate billing . (pages 5-6, emphasis added)
The following examples mostly point to the general problems in creating an adequate defense, given the choices of the plaintiffs, and why the defense counsel is justified in the statements of hours charged:
As in most defamation cases, context matters a great deal and requires explication for the court to perform its role of evaluation speech in full context. … Plaintiffs offered no meaningful context for the allegedly defamatory snippets offered. In this case the necessary context provided and discussed by Defendants included the timeline of the church-related disputes (going back about 18 years in the case of Defendant Varela), the broader context of shunning practices in very traditional Calvinist denominations, the theological context for use of certain Scriptural phrases, and full and complete renderings of the complained-of blog and internet statements in their complete context. Context also included case law evaluating online statements and how such statements are perceived by that audience.
Plaintiffs claimed $500,000 in damages. Even if only a few of the claims remained, the potential liability (and continued litigation costs) would have been financially ruinous for Defendants. It was incumbent upon Defense Counsel to mount a full and complete defense against every allegation of defamation. Plaintiffs are the parties who chose to plead the large number of claims for defamation.
There were 17 different claims against Julie Anne Smith, 1 against Hannah and 4 against Meaghan Varela. Each statement had to be moved against separately and the basis for the defense set out in detail (religious belief, opinion, opinion based on state facts, etc.) The number of claims was the major reason that legal research and individual motions took the amount of time invested. (page 14-15, emphasis added)
Here is my own statement of the essential point: The plaintiffs were fully responsible for filing the lawsuit, and the entire way in which it was structured, reasoned, written, and presented. It does not appear to have in any way anticipated the possibility of an anti-SLAPP motion, or else it would have been composed quite differently. But, once the anti-SLAPP measure was in force, they were basically “stuck” with what consequences of the choices they’d already made.
Examples from the Plaintiffs’ “Opposition to Motion to Strike”
The plaintiffs do try to make a reasoned case that many/most of the alleged defamatory statements do NOT deal with opinions about church teachings, doctrine, etc. – which would be issues free speech. For instance, here are some of their explanations in their Opposition to Motion to Strike. (Emphasis is added to highlight the parts relevant to the legal argument.)
- Allegation “l.” Stating that people have “suffered at the hands of the pastor” goes far beyond commenting upon church doctrine or teachings. (page 9)
- Allegation “n.” Julie Anne Smith restates her allegation that Charles O’Neal lied about the reasons that she left the church. Calling a church pastor a liar is not a comment upon religious doctrine or church teachings. (page 9)
- Allegation “o.” Julie Anne Smith accuses Charles O’Neal of abusing her. This is clearly not an opinion and has nothing to do with church teaching or doctrine. (page 10)
However, when there is an opportunity to explain their reasoning for why something should be considered a falsehood and how it represents reckless disregard,” the plaintiffs’ Opposition to Motion to Strike seems to fall short. These moments are clouded by what I interpret as opinions and assumptions being masqueraded as “self-evident” statements of “facts” and “truth,” or use wording that I found confusing. For instance:
- Allegation “g.” Julie Anne Smith falsely accuses the pastor and the elders of turning “a blind eye to known sex offenders in the church.” This statement cannot be viewed as anything other than defamatory. (page 9) [Sorry, but it isn’t obvious to me, and I couldn’t figure out why this was said.]
- Allegation “i.” Here, Julie Anne Smith expands upon her prior allegation about a sex offender in the church, stating that the alleged sex offender had access to the nursery and children on a weekly basis without any safeguards. This statement is false, as demonstrated by the declaration of Charles O’Neal as well as that of the mother of the alleged sex offender. It constitutes one of the worst things that can be published about a church pastor. (page 9) [Why – what is the reasoning here?]
- Allegation “o.” Julie Anne Smith accuses Charles O’Neal of abusing her. This is clearly not an opinion and has nothing to do with church teaching or doctrine. (page 10) [This is confusing. Are they saying that since it is NOT an opinion, it is a fact and that he was “abusing” her? Or were they meaning to emphasize that the accusation was a lie?]
While I understand that a judge needs to make his or her decision based on the principles, precedents, and evidence, I found Ms. Williams’ presentations far more accessible and clear, comprehensive and compelling. Who knows what may have happened, had the plaintiffs offered a similarly coherent presentation. But read all the court documents for yourself, every page, both plaintiffs and defendants. See how you think each side does in thinking legally and thinking logically. I especially recommend studying the defendants’ Memo in Support of Special Motions to Strike for clear legal descriptions of:
- The two-pronged test for defamation.
- Actionable and non-actionable types of speech for defamation.
- What constitutes a “provable fact.”
- Substantive evidence of “absolute malice.”
Late May – July 2012 – Court Dates and Decisions
May 21, 2012 – FIRST COURT DATE
The case of Beaverton Grace Bible Church v. Smith was assigned to Judge Jim L. Fun, of the Twentieth Judicial District, Circuit Court of Oregon. His considerations included court appearances by the parties and their legal representatives on May 21 and July 13, 2012. They also involved the following documents, totaling 109 pages, plus many other motions and written declarations.
- The plaintiffs’ original complaint (8 pages) and amended complaint (10 pages).
- The defendants’ anti-SLAPP/motion to strike (54 pages) and memo regarding amended complaint (24 pages).
- The plaintiffs’ memo regarding opposition to the motion to strike (13 pages)
The first court date lasted about two hours. Here is how Ms. Smith described the day in her blog post, “Court News“:
The hearing was moved later than scheduled and lasted about 2 hours. Our attorneys were very well prepared and were simply amazing. The plaintiffs’ attorney told the court they were dismissing one of the defendants from the lawsuit and also some of my phrases (we still need to see the court documents). These developments are positive.
The judge asked the attorneys to write up a “summary”, no longer than 5 pages each due by a specific date and then the next (and hopefully final) hearing will be July 13.
I’m feeling good.
My attorney just sent me an e-mail: this blog has over 100,000 hits. Yup, I guess this blog is of public interest. Thank you all for your support!
Between May 21 and July 13, 2012 – PLAINTIFFS CHANGE LEGAL COUNSEL
Sometime between the first court date (May 21) and the second court date (July 13), the plaintiffs changed their legal representation from Roger Hennagin to Jason Alexander from Sussman Shank LLP in Portland, Oregon, and Erik S. Syverson, one of the partners from Miller Barondess LLP in Los Angeles, California. Mr. Syverson was serving Pro Hac Vice, which literally means “for this turn.” In other words, he was an out-of-state attorney who was admitted to practice law in Oregon for this one case only. According to his online profile, Mr. Syverson:
“… is a business litigation and trial lawyer specializing in internet and e-commerce related issues. Erik is one of America’s leading internet and technology attorneys. […] Erik handles complex and innovative litigation related to e-commerce and intellectual property rights for public and private companies. His cases often involve cutting edge business models that require innovative strategies and solutions. His practice includes issues related to internet defamation and anonymous speech rights, trade libel, unfair competition, internet user privacy rights, internet copyright and trademark infringement, e-commerce class actions, affiliate marketing, social media litigation, commercial email and spam litigation, internet impersonation, data theft, trade secrets, and defense of FTC and attorney general lawsuits.”
ANALYSIS/COMMENTARY – PLAINTIFFS CHANGE LEGAL COUNSEL
It is understandable that Mr. Syverson was hired in this case for his expertise on internet defamation issues. It makes sense, given that all 27 allegations deal with internet issues – messages posted online with Google Reviews and DexKnows, or with blog articles and comments on Julie Anne Smith’s BGBC Survivors BlogSpot/Blogger site.
However, I also find the hiring of Mr. Syverson ironic. His profile also states:
“Erik counsels trademark owners with regard to the Anticybersquatting provisions of the Lanham Act and implements trademark enforcement programs for his clients allowing for the recovery of infringing domain names and the cessation of internet sales of infringing goods and services.”
After the trial was over and the plaintiffs case was dismissed, Mr. O’Neal set up what Ms. Smith calls an “impostor blog,” using a domain name that is an explicit spinoff from her blog’s title of “BGBC Survivors.” (More details on the “impostor blog” can be found on Archive page 02B Narrative Account and Analysis: “Sidebar Issues.”) Doesn’t that fit within the essence of “cybersquatting”?
Also, Mr. O’Neal has posted a number of inflammatory online articles and comments about the defendants and other people, such as the former ministry association to which he belonged. They certainly seem bent on stirring up emotions and hopefully capture people’s compassion with their accounts of surviving difficult circumstances. However, some comments seem to steer narrowly close to possible defamation themselves, despite numerous disclaimer clauses that everything represents their opinion of the facts as they see them. Read for yourself the extensive public comments on the various articles linked to in this Archive’s page 04 Media/Blog Response Timeline. You will repeatedly find commenters questioning whether or not Mr. O’Neal himself has crossed the line from free speech opinion into slander with some of the things he has stated, and whether his registration of three website domains that blocked Ms. Smith from transferring her blog to a web domain possibly constitutes some kind of infringement, if not perhaps at the very least malicious “phishing” for people interested enough in the BGBC lawsuit to search for “BGBC Survivors.”
Read Mr. O’Neal’s blog articles and internet comments and press releases. It may not take much imagination to see the potential for role reversal, where Mr. Syverson could be putting together a case against Mr. O’Neal, instead of working for him. As it was, in his role as a counsel for the plaintiffs, he had to work with the situation given to him – one of an apparently poorly constructed case that was effectively frozen in place by the anti-SLAPP motion.
July 23, 2012 – JUDGE FUN ISSUES HIS DECISION
His document was eight pages long. This included two key dimensions:
- A ruling in favor of the defendants’ Motions to Strike (i.e., anti-SLAPP motions). This also involved the dismissal of all 27 defamation claims against the defendants.
- An order for the plaintiffs to pay the court costs and attorneys’ fees for all five “prevailing parties.”
Here are a few details and excerpts that demonstrate the Judge’s own legal reasoning behind his decisions in the first issue, plus expand on the legal process for the second issue of court-mandated payments.
1. A ruling in favor of the defendants’ Motions to Strike (i.e., anti-SLAPP motions). This also involved the dismissal of all 27 defamation claims against the defendants.
A key section that explains Judge Fun’s overall evaluation process is found on Page 6 of this official court decision document:
“[T]he court having found that each of the claims of defamatory statements concern a matter of public interest, the burden shifts to plaintiff to present substantial evidence of a prima facie case of defamation. ORS 31.150(3). Plaintiff must present substantial evidence that defendants made defamatory statements that were published; and plaintiff suffered harm as a result. In identifying what words constitute a defamatory statement, several general principles apply. The 9th Circuit Court adopted a three part test to evaluate alleged defamatory statements: 1) The meaning must be evaluated in the full context of the statements; 2) whether the general tenor of the entire work, including the subject of the statements, setting and format negates the impression of a provable fact, and 3) whether the statement is sufficiently factual to be susceptible of being proved true or false. …” (Emphasis added.)
This framework supplies the backdrop to another key section of Judge Fun’s decision-making process, found on Page 8:
“The court finds that the defendant’s internet postings on plaintiff’s website and defendant Julie Ann [sic] Smith’s blog site, were made in a public forum and concern an issue of public interest. The court further finds that plaintiff has not met the burden of presenting substantial evidence the defendant’s statements are defamatory.” (Emphasis added.)
These quotes show that Judge Fun basically agreed with what Ms. Williams had outlined in her court documents as the relevant case law governing such a defamation lawsuit as this, especially one with religious issues that further bring it into the realm of freedom of speech and First Amendment Rights issues. In referring to the guiding precepts that were already in U.S. and Oregon law, Judge Fun made it very clear that the core of his ruling was that the plaintiffs failed to make their case.
2. An order for the plaintiffs to pay the court costs and attorneys’ fees for the five “prevailing parties.”
The court ordered the plaintiffs to pay the court costs and attorney’s fees for the Stephens, two initial defendants who were later dropped from the case by the plaintiffs – Jason Stephens on May 16 and Kathy Stephens on or about May 29. Judge Fun notes on Page 8 of the official court decision document:
“Although plaintiff dismissed the claims of defamation against the Stephens defendants, dismissal did not occur until after their Special Motions to strike were filed. Moreover, plaintiff presented no evidence in response to Defendant Stephens Special Motions that demonstrate an objective basis for the claimed defamatory statements set forth in the amended complaint.” (Emphasis added.)
The court costs and attorney’s fees for Jason and Kathy Stephens had already been submitted. These totaled $16,750. These defendants declined the option of reducing their fees.
The judge invited the remaining three defendants – Julie Anne Smith, Hannah Smith, and Meaghan Varela – to submit statements for their court costs and attorney fees, which the plaintiffs were also ordered to pay.
ANALYSIS/COMMENTARY – THE LANGUAGE OF WIN, LOSE, OR DISMISSED
Judge Fun’s decision reveals some significant legal opinion on why the defendants’ reasoning won and the plaintiffs’ reasoning failed. Yet, in the aftermath of this case, people are trying to nuance how they present the results. Their terminology depends on whether they are pro-plaintiff or pro-defendants.
Some prefer to say all of this means that Mr. O’Neal and BGBC “lost” their case. Others insist that the “the defendants didn’t ‘win’ – it’s just that the case was dismissed.” Some think the plaintiffs ended up victims of “legal maneuvering.” (Mr. O’Neal has repeatedly used this last term on his own websites and comments on other sites and blogs.)
Regardless of such attempts by people who want to make the dismissal sound the way they want, the above words of Judge Jim L. Fun himself speak for themselves. My summary is this: The plaintiffs failed to provide the required substantial evidence of provable facts for defamatory statements. The court authority responsible to preside over this case and to write the legal decision on the matter makes this point abundantly clear – regardless of how people want to wrangle over the exact wording to use in summarizing the truth of what happened.
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~ Lawsuit Aftermath (August 2012 – Early 2013) ~
Legal Aftermath Issues for Plaintiffs and Defendants
As the old saying goes, “It ain’t over til it’s over.” Just because Judge Fun ruled in July to grant the defendants’ anti-SLAPP motion and dismiss the plaintiffs’ case, that did not bring closure to the lawsuit. The legal process includes a number of additional post-ruling elements and events. Several deal with payment of the prevailing parties’ court costs and attorneys’ fees. Some deal with the judge’s signing of the “final decree” and deadlines. Some of the last details stretched into six full months after the final court date. This section addresses those aftermath actions and issues.
August 20, 2012 – OTHER DEFENDANTS SUBMIT STATEMENTS OF COURT COSTS AND ATTORNEYS’ FEES
Statements of court costs and attorneys’ fees for the remaining three defendants – Julie Anne Smith, Hannah Smith, and Meaghan Varela – were submitted to Judge Fun by their attorney, Linda Williams.
Such statements typically include various supporting documentation and information, such as the attorneys’ detailed time records, resumes, fees awarded in other cases, etc. The “Motion and Memorandum in Support of Awards of Stated Costs, Disbursements and Attorney Fees of Filed by Julie Anne Smith, Hannah Smith and Meaghan Varela” was 26 pages long. There were separate additional statements detailing hours and costs for the Smiths (4 pages) and Ms. Varela (4 pages).
The amount totaled nearly $44,375 ($2,768.52 in court costs and $41,604 in attorneys’ fees). If these amounts were not contested and stood at that level, that would have brought the payments for all five defendants’ fees to over $60,000 ($16,750 for the Stephens + $44,375 for the Smiths and Varela).
September 3, 2012 – DEADLINE TO CONTEST STATEMENT DETAILS
From the filing date of the payment statements on August 20, the plaintiffs had two weeks (i.e., until on or before September 3, 2012) to file any objections/contests they had to any specific costs listed that are not automatically recoverable according to Oregon State law. By Oregon statute, the defendants’ filing fee of $505 and a “prevailing party” fee of $550 cannot be contested. However, the “prevailing party” in this part of the case was actually the remaining three defendants. So, the only question was whether the three should each receive a fee of $550, or all three together share in one fee of $550. As it turned out, the final three defendants each received an individual award of $550. (The two dropped defendants were awarded one $550 fee to share.)
Other costs, the attorney’s hours spent, and/or the attorney’s hourly rate, could be contested. If the losing parties had decided to contest any part of the statement, then the normal procedure would include two steps. First, the prevailing parties would reply to the details of what has been contested, and second, once they had, then the court would set a hearing on the amounts. The judge would determine what he/she deems “reasonable” from these hearings, and put those amounts into the final decree.
In Beaverton Grace Bible Church v. Smith, however, the plaintiffs declined the opportunity to contest any aspects of the statements submitted. They did not file any objections, including to the individual prevailing party fee request. So that part of the aftermath was completed.
ANALYSIS/COMMENTARY – CONTESTING STATEMENT FEES
Typically, the losing parties in such cases contest some aspect of the amount submitted for payment as attorneys’ fees. They can challenge whether the per-hour rate is “reasonable,” and whether the number of hours spent on a specific activity is “reasonable.” So, the lawyers who submit the statements need to lay out why they charge the rate they do, given their expertise, years of experience, the complexity of the case, and/or unusual circumstances. They must also justify the amount of time spent on specific activities.
Also, as in this case of representing multiple defendants, they may have to show how they apportion charges on services provided to the group as a whole versus to a specific individual. Ms. Williams had some rather unusual situations to consider in her explanation of fees to be awarded, given that each of her clients had some distinct features to deal with:
- Julie Anne Smith had the most allegations to refute – 17 of them – and each one had to be addressed. Leaving any out could still have made her liable for the full lawsuit amount, if the anti-SLAPP motion failed.
- Hannah Smith had only one allegation, based on one brief statement she’d made, and yet the general details of her case required as much response as the other two defendants being represented.
- Meaghan Varela was added to the Amended Complaint (filed April 26, 2012) as a defendant, and was only served with legal papers shortly after that. Preparation of her case required more urgency to complete, as Judge Fun was due to be rotated into another area of the Oregon Circuit Court starting August 1. So, if the case were not presented by then, it could cause additional concerns.
So, those items had to be prepared clearly and concisely for the statements submitted for payment. She also states in her “Motion and Memorandum in Support of Awards” document that the plaintiffs’ total costs were boosted significantly by the way they managed their case. For instance, the “Motion and Memorandum” document makes the following points (and I am paraphrasing here):
- Having 17 allegations against Julie Anne Smith is a very large number for a single defendant; also, such a large number of allegations (27) that were not well presented required a large amount of work to interpret and respond to. (pages 5, 15)
- For Hannah Smith, who had only one allegation, and that one quite weak, it would have been more cost effective for the plaintiffs to have dropped her as a defendant. (page 5)
- With Meghan Varela being added so late in the case, that required concentrated effort to include her in both the general and specific responses. (pages 5-6)
September 8, 2012 – PAYMENT RECEIVED FOR COSTS OF THE TWO DROPPED DEFENDANTS
On or before September 8, a payment of $16,750 was received from plaintiffs. This covered the total amount of court costs and attorneys’ fees submitted for Kathy and Jason Stephens. (September 8 was the date the other three defendants represented by Linda Williams were informed that payment was received for the two defendants represented by Herbert Grey.)
December 4, 2012 – JUDGE FUN SIGNS FINAL DECREE
On December 4, Judge Jim L. Fun signed and “officially entered” the final judgment Decree to (1) grant the anti-SLAPP motion and dismiss the lawsuit, and (2) award court costs and attorneys’ fees for the remaining three defendants. The plaintiffs had 30 days from this decree date (i.e., on or before January 3, 2013) to file an appeal on the final amount awarded for court costs and attorneys’ fees.
January 3, 2013 – PLAINTIFFS PASS DEADLINE TO APPEAL THE JUDGE’S DECREE
The official deadline for an appeal/payment response from the plaintiffs was January 3, 2013 – 30 days after the final decree was signed on December 4, 2012. They had two options:
- Appeal the judge’s final decree regarding the award to pay the final three prevailing parties for their court costs and legal fees. If they appealed, Judge Fun’s judgment on the award was still enforceable after this deadline date. So, if the plaintiffs chose to appeal the decree, they would be required to post a bond guaranteeing payment with interest if they were to lose their appeal.
- Not appeal the decree. If this was their choice, they would be required to pay the judgment award. Failure to pay would mean facing debt collection actions – including accrued interest from the date of the judge’s final decree (December 4, 2012).
As co-plaintiffs, Mr. O’Neal as an individual and Beaverton Grace Bible Church as a non-profit corporation were responsible together for paying the full award amount. That meant if one plaintiff did not pay anything, the other was fully liable for the entire amount.
The court-mandated award due for the remaining three prevailing plaintiffs was nearly $44,375 ($2,768.52 in court costs and $41,604 in attorneys’ fees), plus interest accrued from the date the final court decree was signed.
January 9, 2013 – DEFENSE COUNSEL ISSUES “10-DAY NOTICE AND DEMAND” LETTERS
No appeal or payment was received by the defendants’ attorney for nearly a week after the January 3, 2013, deadline. So, on January 9, Ms. Williams issued “10-Day Notice and Demand” letters requiring payment. They were sent by mail with return receipt. These were sent to Charles O’Neal as an individual judgment debtor in the case; and to Barbara Gilgan and Dale Weaver, two individuals listed as officers for Beaverton Grace Bible Church on their Corporation Division website as an Oregon non-profit debtor.
Signed receipts were received back from the two church corporation representatives. However, none was received from Mr. O’Neal. This necessitated further action.
January 17 and 19, 2013 – PROCESS SERVER SENT; PAYMENTS RECEIVED
Because Mr. O’Neal and BGBC filed as co-plaintiffs in the lawsuit, and they lost their case, both were liable for the entire judgment award. This meant that if one was not able to pay anything, the other was responsible to pay the whole amount. Therefore, it was necessary to ensure that all debtor parties received notice that the award payment was overdue. So, On January 17, 2013, Ms. Williams sent a process server to deliver the letter in person to Mr. O’Neal.
However, on January 19, she received checks from Beaverton Grace Bible Church covering the full amounts due for court costs and attorneys’ fees for the final three defendants – Julie Anne Smith, Hannah Smith, and Meaghan Varela. Each check also included 46 days of interest, accrued from the date of the judgment (December 4, 2012). Since the judgment award was now paid in full, serving the notice on Mr. O’Neal was no longer necessary, and the process server was withdrawn.
As the court-mandated payments were received on the 10th day and final day after the “10-Day Notice and Demand” letters were sent, this ended the dealings with the aftermath of Judge Fun’s decision on Beaverton Grace Bible Church v. Smith.
ANALYSIS/COMMENTARY – MEDIA REACTION TO THE JUDGE’S DECISION AND CLOSURE OF THE CASE
Bloggers in the “spiritual abuse survivors community” tended to post articles periodically throughout the entire period of the trial, but mostly from May through August, often with analysis pieces. There were two clear “spikes” in news media interest about Beaverton Grace Bible Church v. Smith.
- The first was May 14-21, when a news report on the then-forthcoming first court date broken and went viral and global within two days.
- The second was July 13-26, from the time of the second court date and the judge’s deliberations until immediately after new of the decision for dismissal began circulating.
When I worked on the first draft of this BGBC Defamation Lawsuit Archive, I speculated that a third spike in interest might possibly occur, since there was finally full closure to the case with the payment of the last three defendants’ court costs and attorneys’ fees. This potential renewed interest got mixed in with other elements, however. There turned out to be multiple more surprises in store from Mr. O’Neal and BGBC members that stirred up a hornets’ nest of controversy that seemed to obliterate the court case. Some of these “sidebar issues” started right at the beginning of the lawsuit. Others emerged in the aftermath of the decision and with some other seemingly provocative and peculiar activities on the part of the plaintiffs. And it is to those we now turn our attention, as we continue our narrative account with Archive page 02B Narrative Account and Analysis: “Sidebar Issues”…
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