Chairman Heckler was asked by Ivey at the Patriot News about the windows bill – why it wasn’t part of the package…..he responded:
“I would frankly doubt the claim that all of the advocates or many of the advocates are talking about this. A narrow group of people who think trial lawyers are the answer to society’s ills are talking about this. We took tons of testimony I have forgotten how many days 10-12 days of all day testimony we didn’t have anybody ask to testify who wanted to testify on this subject. I don’t believe that it is so much the advocates as it is a noisy group of people who get a lot of press. So, I leave this to the legislature and I suspect it has a lot to do with where you stand on tort reform in general. We did not see this as something that dealt with the abuse of children now or even abusers with the exception of a few who would still be in the position to be abusing children. That is a big argument if you let us sue the church for instance we will get all these abuser priests. If you look at the time available for civil action you are talking about some really old folks there may be some people still in circulation who will be unearthed but you are not talking about substantial number of people. At any rate not a subject we dealt with.”
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2013-03-19 19:54:192013-04-07 19:54:50Bucks DA Opposes Window, Sides With Institutions Hiding Decades Of Abuse.
Two child sex abuse bills that are awaiting approval by the State House Judiciary Committee would remove the statue of limitations on criminal charges and civil suits, or suspend any expired statue of limitations.
Supporters say the changes would provide a “window of opportunity” for victims to seek justice, according to a news release.
Reps. Louise Bishop and Michael McGeehan, both D-Philadelphia, announced earlier this year they are re-introducing two bills that are similar to ones introduced in the past two-year legislative session, but died after being bottled up in the committee process.
Bishop re-introduced House Bill 237, which would abolish the statue of limitations on criminal charges and civil lawsuits in cases of child sex abuse.
McGeehan brought back House Bill 238, which would suspend any expired statue of limitation for two years in child sex abuse cases, providing a “window of opportunity for those victims for file a lawsuit,” according to a news release.
McGeehan’s bill also would seek to make child sexual abuse an exception to the sovereign immunity defense that shields public officials from being sued.
“The effects of child sex abuse are felt everywhere,” McGeehan said in a statement online. “We are all victims. The scandals which have rocked school districts and dioceses across the country, Penn State, the Boy Scouts — the problem clearly is not going away. Opponents of our measures need to rethink their positions and become part of the solution.”
One local woman, Kristen Woolley, founder and president of Turning Point Women’s Counseling and Advocacy Center in York, has met with numerous members of the House Judiciary Committee and state representatives to tell them of her own story of abuse, and ask them to support these bills.
Woolley, of Windsor Township, said a family friend abused her when she was between the ages of 10 and 12. She kept it a secret from her friends and family until she was 23 and a doctor encouraged her to tell her mother. By then, too much time had passed for Woolley to file charges against her abuser.
Woolley said she’s kept tabs on Bishop since 2006, when the legislator previously tried to move a bill on the issue.
“I keep following it because I hope for my own day in court,” Woolley said. “I’m gravely afraid for other children who could be hurt by my perpetrator, or someone else.”
Woolley said her meetings with officials have been positive. Most of them express sympathy and shock at her own story and efforts, and many take her pleas to heart, she said.
“I’m not going to settle for a ‘no,'” Woolley said, should the bills not be passed. “…I will not accept one more child being at risk to endure sexual abuse.”
One local woman with a history of childhood sexual abuse is pleading with officials to consider the bills.
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2013-03-18 19:53:072013-04-07 19:54:13One local woman with a history of childhood sexual abuse is pleading with officials to consider the bills. Go Kristen!
The first comprehensive overhaul of the state’s child protection laws, since Jerry Sandusky ‘s arrest and conviction, was unveiled on Monday. The sixteen bill package was introduced by a bipartisan group of state senators.
As the Jerry Sandusky saga went from rumor to arrest to conviction, flaws in the state laws became apparent. The General Assembly created a special task force on child protection to address the shortcomings.
The special task force met numerous times across the state last year taking testimony. In November, the group released a report and from those recommendations, came the legislation to implement them.
The proposals would update the definition of child abuse, clarify who must report child abuse, increase penalties for failure to report and establish a three-digit, statewide number for reporting child abuse.
Another provision would provide whistleblower protection, said Senator Bob Mensch. “I think we need to be able to remove these structures that allow someone with knowledge to be able to come forward, and be sure they’re not going to have consequences. You can’t always see the aftermath of child abuse, but when you see it happening such as coach McQueary, he should feel welcome to come forward and be able to report that.”
Jason Kutalakis, a Carlisle Attorney, has been a child advocate for 15 years and served on the special task force. He says this is a great step forward. “It’s refreshing to see Pennsylvania putting children first and become a leader in the nation, not only fight but to end child-abuse.”
Next month, the Senate’s Aging and Youth Committee and the Public Health and Welfare Committees will hold a joint public hearing. At that time additional comment on the package will be taken.
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2013-03-18 19:46:492013-04-07 19:48:13All victims over 30 still shut out, most permanently. Enact window!
I. Opponents to the Window Are Asserting that the “Remedies Clause” of the Pennsylvania Constitution Makes Window Legislation Unconstitutional. In Fact, It Is Irrelevant
The purpose of the Remedies Clause is to protect plaintiffs from legislative action that will undermine an individual’s remedy for an injury done. It is a constitutional guarantee for plaintiffs and not defendants. It states, “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 right 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.” PA. CONST. Art. 1 § 11.
With the window, the legislature is simply trying to protect a plaintiff’s ability to proceed in court in pursuit of a remedy for the injury already done. There is no argument that it harms a plaintiff. All Pennsylvania courts agree that the legislative branch cannot dissolve a right to recover once a case accrues. Konidaris v. Portnoff Law Associates, Ltd., 598 Pa. 55, 74, 953 A.2d 1231, 1242 (2008). If, at that moment in a particular case, the law would provide the plaintiff access to a remedy, no subsequent
law can take it away.” See David Schuman, The Right to a Remedy, 65 Temp. L.Rev. 1197, 1208 (1992). In Ieropoli v. AC&S Corp., 577 Pa. 138, 842 A.2d 919 (2004) the Pennsylvania Supreme Court held that the statute limiting successor asbestos-related liabilities for corporations was unconstitutional.
The court analyzed the history of the Remedies Clause in Pennsylvania, and found that the legislation violated the Remedies Clause, because it extinguished the plaintiff’s accrued cause of action to recover for his asbestos-related illness. As properly noted by the Commonwealth Court, we “held that under the Remedies Clause, a cause of action that has accrued is a vested right which cannot be eliminated by subsequent legislation.” Konidaris v. Portnoff Law Associates, Ltd., 598 Pa. 55, 64, 953 A.2d 1231, 1236 (2008).
There is a very old Remedies Clause case that has dictum that might be problematic, essentially saying that a defendant has a vested right in expired claims (not under the Remedies Clause, but probably due process, though the court doesn’t say). It is Lewis v. Pennsylvania R. Co., 220 Pa. 317, 69 A. 821, 823 (1908). There was a time when every court—federal and state–agreed on that principle. But that doctrine is now soundly rejected in federal cases and the majority of states, including Pennsylvania.
Lewis was distinguished by Konidaris v. Portnoff Law Associates, Ltd., 598 Pa. 55, 73-74, 953 A.2d 1231, 1241-42 (2008). In Kondaris, the Supreme Court of Pennsylvania held that a retroactive amendment to Municipal Claims and Tax Liens Act (MCTLA) to provide for recovery of attorney fees expended in collecting tax claims did not violate the Remedies Clause of the Pennsylvania Constitution, as discussed above.
II. The Window Is Constitutional Under Due Process.
A retroactive change to a law violates the Due Process Clauses of both Constitutions only when it is a change to the substance of the law. Procedural changes to a law do not violate due process. A statute of limitations is a procedural issue, not substantive. All it does is change the time to go to court.1
Pennsylvania and a majority of states (and the federal cases) follow the reasoning in McDonald v. Redevelopment Auth. of Allegheny County, 952 A.2d 713 (Pa. Commw. Ct. 2008), which involved statutes of limitations under eminent domain, and held that a retroactive change in the limitations period from five years to one did not violate the plaintiffs’ due process rights. In other words, the shortening of an SOL for a plaintiff was permissible, because it was just a procedural change, not a substantive
change. The same reasoning applies to defendants—alternation of an SOL does not violate due process.
The Pennsylvania Supreme Court has followed this reasoning that procedural changes can be made retroactive in Bible v. Com., Dept. of Labor & Indus., 548 Pa. 247, 696 A.2d 1149 (1997), where a retroactive application to workers’ compensation claims did not violate due process. The amendment did not impair claimants’ right to receive compensation for hearing loss, which would have been substantive, but merely changed the remedy, and retroactive application of the amendment to pending cases was rational. There is no question that it is rational to revive child sex abuse claims given the scientific fact that victims typically need decades to come forward.
The key policy point here is that the Defendants knew full well when they endangered children that they were violating the law. There is no unfair surprise in subjecting them to liability, because when they acted, they were on full notice that they should not have done what they did. The window does no more than impose on them the liability they created through their own actions.
1
A change in the statute of limitations does not affect the burdens on the parties. The plaintiff still bears
the initial burden of proof, and if he/she has no evidence, the case is over.
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2013-03-15 19:49:032013-04-07 19:51:47Professor Hamilton PA Remedies Clause
One of the country’s leading church and state scholars is challenging state Rep. Ron Marsico’s claims that suspending the statute of limitation in order to allow victims of child sex abuse to file charges against their predators is unconstitutional.
Marci A. Hamilton, a 20-year professor at the Benjamin N. Cardozo School of Law, Yeshiva University, argues that two amendments pertaining to the statutes of limitations and attached to House Bill 342 are constitutional and sound public policy.
In a report to the General Assembly, Hamilton argues that: “In reality, while the United States Supreme Court has closed the door on retroactive criminal legislation, it has found retroactive civil legislation to be constitutionally permissible.”
Under the U.S. Constitution, Hamilton argues, retroactive civil legislation is constitutional if the legislative intent is clear and the change is procedural.
Hamilton said efforts over the past eight years to reform the law have been fueled by false and outdated arguments.
House Bill 342, sponsored by Rep. Marguerite Quinn, R-Bucks, would protect the identities of child sexual abuse victims from public disclosure.
The bill contains two amendments that have largely been the sticking point over the past eight years to efforts to reform current statutes.
One amendment, authored by state Rep. Mike McGeehan (D-Philadelphia), would open a two-year window for adult victims who have aged out of their opportunity to seek justice to file civil charges against abusers.
McGeehan’s amendment also would suspend the sovereign immunity clause, which protects public school teachers and government officials from prosecution in these cases.
The other amendment, sponsored by Rep. Mark Rozzi (D-Berks), acts as a safety net in case McGeehan’s amendments fail: His proposal would offer just the two-year window clause, not the sovereign immunity.
Earlier this week, Marsico, a Republican from Dauphin County and chairman of the House Judiciary Committee, indicated he will not support the proposed legislation.
Victims advocates have long pointed towards Marsico as being one of the main obstacles to reforming the statutes of limitation.
Rep. Ron Marsico, (R-Dauphin)
In a written statement earlier this week, Marsico said: “While it might feel satisfying to pass a bill that includes a window, any such provision would simply give false hopes to a victim whose civil claim has been barred by the existing statute-of-limitations because it would later be declared unconstitutional by the court.”
It is not clear who the intended recipients of the statement were. PennLive made repeated attempts to speak with Marsico; calls were not returned.
Hamilton, a Bucks County native who is regarded as a leading expert in legislation pertaining to child sexual abuse and statutes of limitations, has challenged Marsico to produce legal precedence supporting his claim that the proposed legislation is unconstitutional.
“I am appalled that Mr. Marsico has chosen to misrepresent the constitutional law of Pennsylvania.” – Marci A. Hamilton, Yeshiva University
“I am appalled that Mr. Marsico has chosen to misrepresent the constitutional law of Pennsylvania, and then say it is his ‘sworn duty’ to do so,” Hamilton wrote in an e-mail to Marsico’s office this week. Hamilton shared the email with PennLive.
“There are no cases that support Mr. Marsico’s position, as I am sure he knows, given that he has never mentioned a case that supports his misrepresentations,” she said. “As a Pennsylvania citizen, I demand that Mr. Marsico publicly disclose the Pennsylvania Supreme Court cases that support his statements about the constitutionality of the window.”
Hamilton, who represented scores of victims in the Philadelphia Archdiocese clergy sex abuse case and has authored leading books on statutes of limitations, said McGeehan’s and Rozzi’s amendments satisfy federal law requiring the intent of retroactive civil legislation to be clear and the change procedural.
In addition, she argues that the window component of McGeehan’s amendment is constitutional under Pennsylvania case law.
The Pennsylvania Supreme Court has allowed for retroactive application of merely procedural aspects of civil statutes.
“Pennsylvania follows the same reasoning as the United States Supreme Court and has permitted the retroactive application of statutes,” she argues.
Hamilton further refutes claims by Marsico and others that a window provision in the statutes of limitations would generate false claims.
Hamilton argues that victims of child sex abuse rarely make false claims. She points to Delaware and California, where windows have already opened and closed. California saw approximately five total false claims out of the 850 against the Catholic Church, Hamilton said.
Marsico has pledged to offer a bill removing the statute of limitations on criminal prosecutions of all future child sexual abuse cases. Victims advocates point out that Marsico, in 2011, opposed similar legislation introduced by Rep. Louise Williams Bishop (D-Philadelphia).
Bishop’s legislation – House Bill 878 – would have eliminated the statute of limitation in sexual abuse cases involving minors. That bill, along with an earlier attempt by McGeehan to introduce a window component, were shut down.
The Legislature, which was scheduled to take up House Bill 342 this week, has yet to do so.
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2013-03-15 19:33:162013-04-07 19:34:02Leading legal expert challenges Rep. Ron Marsico's concerns on child sex abuse bill
McGeehan, Rozzi to welcome legal scholar’s presence at Monday news conference
HARRISBURG, March 15 – A law school professor and respected author will add her expertise on the constitutionality of child sexual abuse window legislation to a 1 p.m. Monday news conference in the Capitol Media Center, where state Reps. Michael P. McGeehan, D-Phila., and Mark Rozzi, D-Berks, will discuss their efforts in this critical area.
Marci A. Hamilton, who teaches at New York’s Yeshiva University and is a graduate of the University of Pennsylvania Law School, will explain why amendments offered by McGeehan and Rozzi to H.B. 342 – which would lift the statute of limitations in child sex abuse cases — are constitutional and represent good public policy.
McGeehan Amendment 188 would open a two-year window for victims to file civil charges in cases where the statute of limitations has expired – and would suspend the sovereign immunity that protects school and government officials from prosecution in such cases.
Rozzi Amendment 189, designed as a procedural backup, calls for the same two-year window as McGeehan’s amendment, minus the sovereign immunity suspension.
Hamilton, author of “Justice Denied: What America Must Do to Protect its Children” and a former clerk for U.S. Supreme Court Justice Sandra Day O’Connor, is a leading church and state scholar who weighed in on the constitutionality issue in a new article available at http://bit.ly/Z3sBA6.
“We are pleased to have someone of Professor Hamilton’s stature join us in our effort to seek justice for victims of child sexual abuse – no matter how large or powerful the person or institution that wishes to remain protected,” McGeehan said. “She is helping clear a smokescreen so that everyone is able to clearly see what can be done.”
Rozzi, a victim of child sexual abuse by a priest and who has had similarly affected friends commit suicide, said, “We commend Marci Hamilton for lending her clear-minded and expert legal voice to the cause of peeling back longstanding veils of secrecy, which if left in place only serve to create a hiding place for pedophiles to escape detection and justice.”
CONTACT: Paul Sunyak
House Democratic Communications Office
Phone: 717-787-7895
Email: psunyak@pahouse.net
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2013-03-15 19:31:002013-04-07 19:31:53McGeehan, Rozzi to welcome legal scholar’s presence at Monday news conference
Bucks DA Opposes Window, Sides With Institutions Hiding Decades Of Abuse.
/in Pennsylvania /by SOL ReformOne local woman with a history of childhood sexual abuse is pleading with officials to consider the bills. Go Kristen!
/in Pennsylvania /by SOL ReformYork, PA –
Two child sex abuse bills that are awaiting approval by the State House Judiciary Committee would remove the statue of limitations on criminal charges and civil suits, or suspend any expired statue of limitations.
Supporters say the changes would provide a “window of opportunity” for victims to seek justice, according to a news release.
Reps. Louise Bishop and Michael McGeehan, both D-Philadelphia, announced earlier this year they are re-introducing two bills that are similar to ones introduced in the past two-year legislative session, but died after being bottled up in the committee process.
Bishop re-introduced House Bill 237, which would abolish the statue of limitations on criminal charges and civil lawsuits in cases of child sex abuse.
McGeehan brought back House Bill 238, which would suspend any expired statue of limitation for two years in child sex abuse cases, providing a “window of opportunity for those victims for file a lawsuit,” according to a news release.
McGeehan’s bill also would seek to make child sexual abuse an exception to the sovereign immunity defense that shields public officials from being sued.
“The effects of child sex abuse are felt everywhere,” McGeehan said in a statement online. “We are all victims. The scandals which have rocked school districts and dioceses across the country, Penn State, the Boy Scouts — the problem clearly is not going away. Opponents of our measures need to rethink their positions and become part of the solution.”
One local woman, Kristen Woolley, founder and president of Turning Point Women’s Counseling and Advocacy Center in York, has met with numerous members of the House Judiciary Committee and state representatives to tell them of her own story of abuse, and ask them to support these bills.
Woolley, of Windsor Township, said a family friend abused her when she was between the ages of 10 and 12. She kept it a secret from her friends and family until she was 23 and a doctor encouraged her to tell her mother. By then, too much time had passed for Woolley to file charges against her abuser.
Woolley said she’s kept tabs on Bishop since 2006, when the legislator previously tried to move a bill on the issue.
“I keep following it because I hope for my own day in court,” Woolley said. “I’m gravely afraid for other children who could be hurt by my perpetrator, or someone else.”
Woolley said her meetings with officials have been positive. Most of them express sympathy and shock at her own story and efforts, and many take her pleas to heart, she said.
“I’m not going to settle for a ‘no,'” Woolley said, should the bills not be passed. “…I will not accept one more child being at risk to endure sexual abuse.”
One local woman with a history of childhood sexual abuse is pleading with officials to consider the bills.
Daily Record/Sunday News
All victims over 30 still shut out, most permanently. Enact window!
/in Pennsylvania /by SOL ReformThe first comprehensive overhaul of the state’s child protection laws, since Jerry Sandusky ‘s arrest and conviction, was unveiled on Monday. The sixteen bill package was introduced by a bipartisan group of state senators.
As the Jerry Sandusky saga went from rumor to arrest to conviction, flaws in the state laws became apparent. The General Assembly created a special task force on child protection to address the shortcomings.
The special task force met numerous times across the state last year taking testimony. In November, the group released a report and from those recommendations, came the legislation to implement them.
The proposals would update the definition of child abuse, clarify who must report child abuse, increase penalties for failure to report and establish a three-digit, statewide number for reporting child abuse.
Another provision would provide whistleblower protection, said Senator Bob Mensch. “I think we need to be able to remove these structures that allow someone with knowledge to be able to come forward, and be sure they’re not going to have consequences. You can’t always see the aftermath of child abuse, but when you see it happening such as coach McQueary, he should feel welcome to come forward and be able to report that.”
Jason Kutalakis, a Carlisle Attorney, has been a child advocate for 15 years and served on the special task force. He says this is a great step forward. “It’s refreshing to see Pennsylvania putting children first and become a leader in the nation, not only fight but to end child-abuse.”
Next month, the Senate’s Aging and Youth Committee and the Public Health and Welfare Committees will hold a joint public hearing. At that time additional comment on the package will be taken.
Source: Kirk Wilson, CBS News 21
VIEW PDF: All victims over 30 still shut out, most permanently. Enact window!
Professor Hamilton PA Remedies Clause
/in Pennsylvania /by SOL ReformI. Opponents to the Window Are Asserting that the “Remedies Clause” of the
Pennsylvania Constitution Makes Window Legislation Unconstitutional.
In Fact, It Is Irrelevant
The purpose of the Remedies Clause is to protect plaintiffs from legislative action that will undermine an individual’s remedy for an injury done. It is a constitutional guarantee for plaintiffs and not defendants. It states, “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 right 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.” PA. CONST. Art. 1 § 11.
With the window, the legislature is simply trying to protect a plaintiff’s ability to proceed in court in pursuit of a remedy for the injury already done. There is no argument that it harms a plaintiff. All Pennsylvania courts agree that the legislative branch cannot dissolve a right to recover once a case accrues. Konidaris v. Portnoff Law Associates, Ltd., 598 Pa. 55, 74, 953 A.2d 1231, 1242 (2008). If, at that moment in a particular case, the law would provide the plaintiff access to a remedy, no subsequent
law can take it away.” See David Schuman, The Right to a Remedy, 65 Temp. L.Rev. 1197, 1208 (1992). In Ieropoli v. AC&S Corp., 577 Pa. 138, 842 A.2d 919 (2004) the Pennsylvania Supreme Court held that the statute limiting successor asbestos-related liabilities for corporations was unconstitutional.
The court analyzed the history of the Remedies Clause in Pennsylvania, and found that the legislation violated the Remedies Clause, because it extinguished the plaintiff’s accrued cause of action to recover for his asbestos-related illness. As properly noted by the Commonwealth Court, we “held that under the Remedies Clause, a cause of action that has accrued is a vested right which cannot be eliminated by subsequent legislation.” Konidaris v. Portnoff Law Associates, Ltd., 598 Pa. 55, 64, 953 A.2d 1231, 1236 (2008).
There is a very old Remedies Clause case that has dictum that might be problematic, essentially saying that a defendant has a vested right in expired claims (not under the Remedies Clause, but probably due process, though the court doesn’t say). It is Lewis v. Pennsylvania R. Co., 220 Pa. 317, 69 A. 821, 823 (1908). There was a time when every court—federal and state–agreed on that principle. But that doctrine is now soundly rejected in federal cases and the majority of states, including Pennsylvania.
Lewis was distinguished by Konidaris v. Portnoff Law Associates, Ltd., 598 Pa. 55, 73-74, 953 A.2d 1231, 1241-42 (2008). In Kondaris, the Supreme Court of Pennsylvania held that a retroactive amendment to Municipal Claims and Tax Liens Act (MCTLA) to provide for recovery of attorney fees expended in collecting tax claims did not violate the Remedies Clause of the Pennsylvania Constitution, as discussed above.
II. The Window Is Constitutional Under Due Process.
A retroactive change to a law violates the Due Process Clauses of both Constitutions only when it is a change to the substance of the law. Procedural changes to a law do not violate due process. A statute of limitations is a procedural issue, not substantive. All it does is change the time to go to court.1
Pennsylvania and a majority of states (and the federal cases) follow the reasoning in McDonald v. Redevelopment Auth. of Allegheny County, 952 A.2d 713 (Pa. Commw. Ct. 2008), which involved statutes of limitations under eminent domain, and held that a retroactive change in the limitations period from five years to one did not violate the plaintiffs’ due process rights. In other words, the shortening of an SOL for a plaintiff was permissible, because it was just a procedural change, not a substantive
change. The same reasoning applies to defendants—alternation of an SOL does not violate due process.
The Pennsylvania Supreme Court has followed this reasoning that procedural changes can be made retroactive in Bible v. Com., Dept. of Labor & Indus., 548 Pa. 247, 696 A.2d 1149 (1997), where a retroactive application to workers’ compensation claims did not violate due process. The amendment did not impair claimants’ right to receive compensation for hearing loss, which would have been substantive, but merely changed the remedy, and retroactive application of the amendment to pending cases was rational. There is no question that it is rational to revive child sex abuse claims given the scientific fact that victims typically need decades to come forward.
The key policy point here is that the Defendants knew full well when they endangered children that they were violating the law. There is no unfair surprise in subjecting them to liability, because when they acted, they were on full notice that they should not have done what they did. The window does no more than impose on them the liability they created through their own actions.
1
A change in the statute of limitations does not affect the burdens on the parties. The plaintiff still bears
the initial burden of proof, and if he/she has no evidence, the case is over.
View as PDF: View Prof. Hamilton’s PA Remedies Clause (PDF)
Leading legal expert challenges Rep. Ron Marsico’s concerns on child sex abuse bill
/in Pennsylvania /by SOL ReformOne of the country’s leading church and state scholars is challenging state Rep. Ron Marsico’s claims that suspending the statute of limitation in order to allow victims of child sex abuse to file charges against their predators is unconstitutional.
Marci A. Hamilton, a 20-year professor at the Benjamin N. Cardozo School of Law, Yeshiva University, argues that two amendments pertaining to the statutes of limitations and attached to House Bill 342 are constitutional and sound public policy.
In a report to the General Assembly, Hamilton argues that: “In reality, while the United States Supreme Court has closed the door on retroactive criminal legislation, it has found retroactive civil legislation to be constitutionally permissible.”
Under the U.S. Constitution, Hamilton argues, retroactive civil legislation is constitutional if the legislative intent is clear and the change is procedural.
Hamilton said efforts over the past eight years to reform the law have been fueled by false and outdated arguments.
House Bill 342, sponsored by Rep. Marguerite Quinn, R-Bucks, would protect the identities of child sexual abuse victims from public disclosure.
The bill contains two amendments that have largely been the sticking point over the past eight years to efforts to reform current statutes.
One amendment, authored by state Rep. Mike McGeehan (D-Philadelphia), would open a two-year window for adult victims who have aged out of their opportunity to seek justice to file civil charges against abusers.
McGeehan’s amendment also would suspend the sovereign immunity clause, which protects public school teachers and government officials from prosecution in these cases.
The other amendment, sponsored by Rep. Mark Rozzi (D-Berks), acts as a safety net in case McGeehan’s amendments fail: His proposal would offer just the two-year window clause, not the sovereign immunity.
Earlier this week, Marsico, a Republican from Dauphin County and chairman of the House Judiciary Committee, indicated he will not support the proposed legislation.
Victims advocates have long pointed towards Marsico as being one of the main obstacles to reforming the statutes of limitation.
Rep. Ron Marsico, (R-Dauphin)
In a written statement earlier this week, Marsico said: “While it might feel satisfying to pass a bill that includes a window, any such provision would simply give false hopes to a victim whose civil claim has been barred by the existing statute-of-limitations because it would later be declared unconstitutional by the court.”
It is not clear who the intended recipients of the statement were. PennLive made repeated attempts to speak with Marsico; calls were not returned.
Hamilton, a Bucks County native who is regarded as a leading expert in legislation pertaining to child sexual abuse and statutes of limitations, has challenged Marsico to produce legal precedence supporting his claim that the proposed legislation is unconstitutional.
“I am appalled that Mr. Marsico has chosen to misrepresent the constitutional law of Pennsylvania.” – Marci A. Hamilton, Yeshiva University
“I am appalled that Mr. Marsico has chosen to misrepresent the constitutional law of Pennsylvania, and then say it is his ‘sworn duty’ to do so,” Hamilton wrote in an e-mail to Marsico’s office this week. Hamilton shared the email with PennLive.
“There are no cases that support Mr. Marsico’s position, as I am sure he knows, given that he has never mentioned a case that supports his misrepresentations,” she said. “As a Pennsylvania citizen, I demand that Mr. Marsico publicly disclose the Pennsylvania Supreme Court cases that support his statements about the constitutionality of the window.”
Hamilton, who represented scores of victims in the Philadelphia Archdiocese clergy sex abuse case and has authored leading books on statutes of limitations, said McGeehan’s and Rozzi’s amendments satisfy federal law requiring the intent of retroactive civil legislation to be clear and the change procedural.
In addition, she argues that the window component of McGeehan’s amendment is constitutional under Pennsylvania case law.
The Pennsylvania Supreme Court has allowed for retroactive application of merely procedural aspects of civil statutes.
“Pennsylvania follows the same reasoning as the United States Supreme Court and has permitted the retroactive application of statutes,” she argues.
Hamilton further refutes claims by Marsico and others that a window provision in the statutes of limitations would generate false claims.
Hamilton argues that victims of child sex abuse rarely make false claims. She points to Delaware and California, where windows have already opened and closed. California saw approximately five total false claims out of the 850 against the Catholic Church, Hamilton said.
Marsico has pledged to offer a bill removing the statute of limitations on criminal prosecutions of all future child sexual abuse cases. Victims advocates point out that Marsico, in 2011, opposed similar legislation introduced by Rep. Louise Williams Bishop (D-Philadelphia).
Bishop’s legislation – House Bill 878 – would have eliminated the statute of limitation in sexual abuse cases involving minors. That bill, along with an earlier attempt by McGeehan to introduce a window component, were shut down.
The Legislature, which was scheduled to take up House Bill 342 this week, has yet to do so.
McGeehan, Rozzi to welcome legal scholar’s presence at Monday news conference
/in Pennsylvania /by SOL ReformMcGeehan, Rozzi to welcome legal scholar’s presence at Monday news conference
HARRISBURG, March 15 – A law school professor and respected author will add her expertise on the constitutionality of child sexual abuse window legislation to a 1 p.m. Monday news conference in the Capitol Media Center, where state Reps. Michael P. McGeehan, D-Phila., and Mark Rozzi, D-Berks, will discuss their efforts in this critical area.
Marci A. Hamilton, who teaches at New York’s Yeshiva University and is a graduate of the University of Pennsylvania Law School, will explain why amendments offered by McGeehan and Rozzi to H.B. 342 – which would lift the statute of limitations in child sex abuse cases — are constitutional and represent good public policy.
McGeehan Amendment 188 would open a two-year window for victims to file civil charges in cases where the statute of limitations has expired – and would suspend the sovereign immunity that protects school and government officials from prosecution in such cases.
Rozzi Amendment 189, designed as a procedural backup, calls for the same two-year window as McGeehan’s amendment, minus the sovereign immunity suspension.
Hamilton, author of “Justice Denied: What America Must Do to Protect its Children” and a former clerk for U.S. Supreme Court Justice Sandra Day O’Connor, is a leading church and state scholar who weighed in on the constitutionality issue in a new article available at http://bit.ly/Z3sBA6.
“We are pleased to have someone of Professor Hamilton’s stature join us in our effort to seek justice for victims of child sexual abuse – no matter how large or powerful the person or institution that wishes to remain protected,” McGeehan said. “She is helping clear a smokescreen so that everyone is able to clearly see what can be done.”
Rozzi, a victim of child sexual abuse by a priest and who has had similarly affected friends commit suicide, said, “We commend Marci Hamilton for lending her clear-minded and expert legal voice to the cause of peeling back longstanding veils of secrecy, which if left in place only serve to create a hiding place for pedophiles to escape detection and justice.”
CONTACT: Paul Sunyak
House Democratic Communications Office
Phone: 717-787-7895
Email: psunyak@pahouse.net