ANALYSIS

Legal experts say Ordman Alley’s claims would test defamation, due process law

Longtime Jonesport-Beals boys basketball coach Ordman &quotOrdie" Alley gets ready to lead his team onto the Bangor Auditorium for the Royals' 2005 Eastern Maine Class D quarterfinal against Lee Academy
BDN File Photo
Longtime Jonesport-Beals boys basketball coach Ordman "Ordie" Alley gets ready to lead his team onto the Bangor Auditorium for the Royals' 2005 Eastern Maine Class D quarterfinal against Lee Academy
Posted Aug. 28, 2014, at 7:22 p.m.

BANGOR, Maine — Famed former Jonesport-Beals basketball coach Ordman Alley has invoked defamation and denial of due process in defending himself against allegations of sexual abuse that led to his removal from two Maine athletic halls of fame.

But legal experts interviewed by the Bangor Daily News said both claims could be difficult to prove to a judge or jury by a preponderance of evidence — the legal standard that must be met in civil cases — should he pursue legal action against his accusers and the halls of fame.

Alley, 72, was removed from the halls of fame earlier this year after two women alleged to the organizations that Alley sexually abused them while they were students and he was a teacher at the Cove School in Jonesport in the late 1960s and early 1970s.

Alley’s attorney, Brett Baber of Bangor, on Monday issued a press release, signed by Alley, denying the women’s allegations.

The statement also said Alley is “exploring my own options of bringing legal action against those who have slandered me. I look forward to the opportunity to address these false allegations in a court of law where all of the participants will be assured of due process.”

Baber said Wednesday said that the filing of a lawsuit related to the allegations “was not imminent.”

The attorney representing the two alleged victims said Thursday that Alley’s public threat of a lawsuit “might not be wise.”

“If he wants to open the courthouse doors, we welcome that,” Rebecca Irving of Machias said. “He’s been aware of these accusations for years.”

The Bangor Daily News is not naming her clients because they might be victims of sexual assault.

In his statement, Alley raised two separate legal issues related to the allegations and his removal from the halls of fame: denial of due process by the halls and defamation as a result of slander.

Defamation, which includes both slander and libel, is a false statement that causes harm, according to E. James Burke, clinical professor of law at the University of Maine Law School in Portland. Slander involves a spoken statement. Libel involves a published written statement.

Legally, said Burke, the burden of proving a statement is false is on the plaintiff — Alley if he sues — but realistically, a judge or jurors probably would base a verdict on whose testimony they believed.

“The harm must be proven through testimony and evidence,” Burke said. “There are two parts to most cases, liability and damages. A verdict for a plaintiff may reinstate his or her reputation, but damages might be minimal.”

Jurors could find a plaintiff had been defamed but award just $1 in damages, the professor said. Plus, the plaintiff is taking a big risk.

“If you go to court and you win, that’s great,” said Burke. “If you lose, it confirms you did it.”

The burden of proof on Alley also would increase if the defense could prove that he is a public figure, said Bernard Kubetz, a Bangor lawyer experienced in trying defamation cases. (Disclosure: Kubetz has defended the BDN and other media outlets in such cases.)

It would be up to a judge to determine if Alley was a public figure because of how well-known he is in his local community or in the statewide basketball community, Kubetz said.

To prove he had been defamed as a public figure, Alley also would have to show that the intent of the woman who sent a letter alleging abuse to the hall of fame was malicious, said Kubetz.

Irving said she was confident a defamation suit would not succeed against her clients because truth is a proven defense against slander.

This is accurate, said Burke.

“Defenses to slander are: ‘It’s true’; ‘I believed it to be true’; ‘I thought it was true,’” he said.

Irving said she met the women before one of them sent Alley a letter in September 2005 that contained allegations of abuse. A copy of the letter also was received by at least one of the halls of fame.

After the letter was received, the new Maine Basketball Hall of Fame rescinded Alley’s inclusion into its inaugural class of inductees.

Later, the Maine Sports Hall of Fame, in which Alley had been enshrined since 2003, quietly removed him. Alley had a 39-year basketball coaching career, during which he led Jonesport-Beals to more than 550 victories and nine state championships.

In his press release, Alley said the governing boards of both halls never “contacted me for my perspective,” and that he was denied due process before being ousted.

Maine Sports Hall of Fame Chairman Dick Whitmore referred questions about a possible defense to a lawsuit to attorney Nicholas Scaccia of Sanford, who is a member of the hall’s board.

Efforts to reach him Thursday were unsuccessful.

Steve Pound, chairman of the Basketball Hall of Fame, on Thursday declined to provide the name of an attorney who might speak on the board’s behalf. He said: “No comment.”

The bylaws of the Maine Sports Hall of Fame, which are posted on its website, do not include a removal process. The bylaws of the Maine Basketball Hall of Fame are not posted on its website.

Burke, the law professor, said it might be possible to claim the halls violated a contract when they removed Alley.

“A judge would have to carefully parse the relationship between an honoree and the organization,” he said. “The question is — is it a legal contract or a warm, fuzzy thing?”

Baber did not rule out suing the halls for defamation, but Alley did not directly accuse the halls of that in his statement.

One thing that is clear, however, is the statute of limitations on any alleged criminal activity is long past, as is the alleged victims’ ability to sue Alley for civil damages.

In the 1960s and 1970s, a person suspected of sexually abusing a child had to be prosecuted within six years of the most recent incidence. The same statute of limitations applies to civil cases today.

The statute of limitations was removed in 1991 for felony sex crimes against children under the age of 16. In 1999, it was eliminated for misdemeanor crimes against children under the age of 16. The only other crime in Maine that does not have a statute of limitation is murder.

Irving said Thursday that she first met the two women who accused Alley of abuse in 2005, when they consulted her about their legal options.

“Unfortunately, the statute of limitations for criminal prosecution and a civil lawsuit had expired,” she said.

 

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