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Just weeks before the civil child sex abuse trial was set to begin, it was canceled.

Ned Hearn, the former SLVUSD teacher and administrator who faces a lawsuit by a student swimmer he coached in the ’90s in Dixon, Calif.—who says they had a sexual relationship while she was a minor—is once again in limbo.

Now, he’ll wait to see what higher courts have to say about a law that temporarily opened the door to #metoo-era claims falling before the statute of limitations.

Meanwhile, Santa Cruz County schools are being confronted with the six-figure impact of the reviving of such accusations against public institutions.

On July 28 last year, the Dixon Unified School District, where Hearn used to work, asked the Superior Court of Solano County to deem AB 218 unconstitutional.

But, on Jan. 4, the court ruled the California Legislature has the power to open the door to time-barred causes of action, and said AB 218 is not an unconstitutional gift of public funds.

The judge also ruled there were triable issues of fact over whether Dixon Unified had “constructive knowledge of HEARNS’s propensities to sexually abuse a student and knowledge of HEARN and Plaintiff’s sexual relationship,” as DUSD’s lawyers put it in a recent filing.

It’s not the only court that has affirmed the law, which was introduced to open a window for victims of sexual crimes to gain redress against institutional sex crimes from years ago. In recent years, high-profile cases against Hollywood figures and religious organizations filled the headlines, but even some of these verdicts, including against Harvey Weinstein and Bill Cosby, have been reversed.

Prior to the July 9 start of Hearn’s trial, John P. Devine of the Contra Costa County Superior Court had overruled a demurrer from West Contra Costa Unified School District, saying AB 218 isn’t an unconstitutional gift of public funds.

But WCCUSD filed a writ of mandate, which the First Appellate District Court agreed to hear.

On June 13, Danielle K. Douglas, another Contra Costa County Superior Court judge, sided with Acalanes Union High School District, holding that AB 218 is an unconstitutional gift of public funds, and on Oct. 25, ruled against plaintiff Jane Doe #1, who has now appealed.

Contra Costa County Superior Court has sustained three other demurrers—without leave to amend—specifically because it says AB 218 is an unconstitutional gift of public funds (siding with Mount Diablo Unified School District in two cases and West Contra Costa Unified School District in another).

Through her lawyer, Melissa Chowning, who gave up her right to anonymity as she publicly accused Hearn of victimizing her from about December 1996 to February 1998, did not oppose a stay of the proceedings as the AB 218 issue works its way through the court system.

DUSD says it’s nearly impossible to defend against her suit.

“Due to the laps of time, the DISTRICT no longer has any records reflecting anything about HEARN’s time as a substitute teacher or a seasonal swim coach,” its lawyers wrote in an April 15 stay memo, adding, “nearly all of the individuals who worked for the DISTRICT during this time are no longer employed. Some of the witnesses are deceased; others are in their advanced years. Finally, at deposition, HEARN asserted his rights pursuant to the Fifth Amendment for virtually every question which touched on either the subject of abuse, or Plaintiff, including all questions concerning whether DISTRICT employees even spoke with him concerning anything at all regarding Plaintiff.”

The filing, signed by Jessica Adair of San Francisco-based Bertrand, Fox, Elliot, Osman & Wenzel, said it would be unconstitutional to put public money toward litigating the Hearn case when a ruling from a higher court could nullify the decision.

“In the event AB 218 is deemed unconstitutional, this action against the DISTRICT will be barred as a matter of law,” Adair wrote. “Any judgment rendered against the DISTRICT will be unconstitutional.”

On May 28, Scotts Valley Unified School District administrators heard how teacher and staff misconduct elsewhere had begun to hit its pocketbook here at home.

Mary Navas, SVUSD’s chief business official, told the board of trustees that, over just the past three years, Scotts Valley had been required to pay $108,000 toward a pool to cover AB 218 claims.

“It changed the revival period for improper conduct,” she said. “Because we have insurance…we have to pay a portion of those claims.”

SLVUSD has paid $207,919 into the School Excess Liability Fund toward AB 218 claims over the past three years, though Superintendent Chris Schiermeyer notes the District has not had any of these cases itself.

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Drew Penner is an award-winning Canadian journalist whose reporting has appeared in the Globe and Mail, Good Times Santa Cruz, Los Angeles Times, Scotts Valley Press Banner, San Diego Union-Tribune, KCRW and the Vancouver Sun. Please send your Los Gatos and Santa Cruz County news tips to [email protected].


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