Mimesis Law
7 December 2019

The Pennsylvania Senate Does Something Right

July 7, 2016 (Fault Lines) — In the wake of the sex abuse scandal in the Catholic Diocese of Altoona-Johnstown, the Pennsylvania Senate made a series of amendments to the laws governing child sex abuse. One provision entirely eliminated the statute of limitations for criminal charges, and another eliminated the statute of limitations for the filing of civil claims.

The elimination of the civil statute of limitations was actually tougher than the Pennsylvania House version, which had sought to extend the time to file suit from the victim’s 30th birthday to the victim’s 50th birthday. What the Senate left out was a retroactivity clause that would have applied the new statute of limitations to already expired claims. In other words, victims upon whom the clock had expired under the old law would not be able bring suit under the new set of rules.

The Senate’s reasons for deleting the retroactivity clause is unusual. Apparently, they felt that it would violate the state constitution; specifically Article I, Section 11, the so-called Remedies Clause, which reads:

All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and eight and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.

Bruce Castor, Pennsylvania’s Solicitor General, testified before the House on the law last month. His review of the Pennsylvania’s Supreme Court’s jurisprudence on the Remedies Clause suggested that amending the statute of limitations on civil claims to allow previously expired claims was unconstitutional. The House didn’t care, and passed the law anyway; however, the Senate deleted it in its version.

This is already the law when it comes to criminal charges. The U.S. Supreme Court held in Stogner v. California that amending the statute of limitations to prosecute already expired crimes was a violation of the Ex Post Facto Clause:

In sum, California’s law subjects an individual such as Stogner to prosecution long after the State has, in effect, granted an amnesty, telling him that he is “at liberty to return to his country … and that from henceforth he may cease to preserve the proofs of his innocence.” It retroactively withdraws a complete defense to prosecution after it has already attached, and it does so in a manner that allows the State to withdraw this defense at will and with respect to individuals already identified. “Unfair” seems to us a fair characterization.

The Pennsylvania Senate’s action in nixing the clause is unusual in that it’s based on a constitutional principle, which was applied in favor of an unpopular defendant. Legislatures usually do the opposite. Take the ridiculous arrest of Bryton Mellot, who was arrested and then released after he posted a picture of himself burning a flag on Facebook. The Supreme Court found laws prohibiting flag unconstitutional in 1989 in Texas v. Johnson, and the Illinois legislature passed its flag burning statute in…2013.

What, exactly, was the Illinois Legislature thinking? Did no one tell them that flag burning, while it might piss most people off, was actually the subject of a Supreme Court decision that specifically protected vexillogical pyromania? Of course not. The Illinois legislature passed the bill because its one of those classic wedge issues. Very few people like a flag burner, they reasoned, so let’s stick it to ‘em and the First Amendment be damned.

In contrast, the Pennsylvania Senate also realized that no sane person is in favor of child abuse, and the only thing stopping them from putting the screws to organizations that covered it up was an obscure clause of the state constitution and some old case law. Nevertheless, they took their duty to avoid passing an unconstitutional law seriously, and nixed it.

To be sure, there were some powerful groups opposing the bill. The most prominent ones were the Catholic Church, who would have to defend any of the newly allowed lawsuits; and the insurance companies, who would have cough the money for any damages. Also, the fact that the bill set damage caps of $200,000 and $500,000 on state and local governments, respectively, but imposed no such caps on suits against private organizations, suggest that the Legislature was also looking out for its own interests.

Nevertheless, in an age where most lawmaking bodies from the Congress on down seem eager to pass poorly written laws to make political hay out of the latest outrage, the Pennsylvania Senate took the time, while doing something, to deliberate on whether this particular something was a good idea. We need more of that.

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