Experts debate constitutionality of Rozzi child sex abuse bill

By Liam Migdail-Smith
Reading Eagle
June 14, 2016

http://www.readingeagle.com/news/article/experts-debate-constitutionality-of-bill-to-remove-time-limits-from-court-cases-on-child-sex-abuse

Mark Rozzi, a Muhlenberg Township Democrat, speaks at a rally on the capitol steps in Harrisburg following a hearing about a bill he sponsorred to lift the statute of limitations on child sex-abuse lawsuits.

HARRISBURG — Several attorneys and scholars, including Pennsylvania's top legal officer, told a state Senate panel Monday that reviving now-expired child sexual abuse lawsuits would run afoul of the state Constitution.

Supporters of the plan countered that it passes legal muster and accused opponents of questioning its constitutionality in a last-ditch effort to derail the proposal.The hearing, before the Senate Judiciary Committee and a standing-room-only crowd, came on the heels of several weeks of fierce public debate, which has abuse victims and their advocates at odds with the Catholic Church and business groups.The bid to revive expired cases is part of a larger measure designed to give abuse victims more time to take their abusers and those who shield them to court.State Solicitor General Bruce L. Castor Jr. was among the speakers to call the retroactive part of the plan unconstitutional. His opinion was echoed by three legal scholars, two of them representing the plan's opponents.Defending the proposal and its constitutionality was Marci A. Hamilton, a constitutional scholar from Bucks County and national advocate for overhauling child sex abuse laws.Abuse survivors and their advocates took to the Capitol steps after the three-hour hearing to express outrage over the lopsided speaker lineup. They accused the panel's chairman, Sen. Stewart Greenleaf, of stacking the hearing in their opponents' favor.“That whole thing reeked of being set up,” Rep. Mark Rozzi, a Muhlenberg Township Democrat who's led the call for the overhaul, bellowed from the steps.Rozzi, who was sexually abused by a priest as a teen, said that unless state leaders change course, they are poised to join the lengthy list of people who have failed abuse victims.“I am embarrassed today to call myself a representative for the people in this commonwealth,” he said.Patrick Cawley, Greenleaf's staff attorney and the committee's executive director, said the hearing lineup was crafted to keep a narrow focus on constitutionality. While further hearings may look at broader arguments for or against the plan, he said, the legal question must be answered first.“It was absolutely not an attempt to stack the issue on one side,” Cawley said.Greenleaf, in a press release, said no timeline has been set for his committee to act on the bill.“It's important that we have time to digest the information and carefully weigh all of the testimony we received before voting on the bill,” the Montgomery County Republican said.

The bill would eliminate the time limit for criminal charges to be filed in child sexual abuse cases and give victims until age 50 to file lawsuits. Now, those limits are age 50 for criminal charges and age 30 for civil cases.

The civil changes would be retroactive, allowing victims up to age 50 to file suits regardless of when the abuse occurred.Catholic leaders have launched a major campaign to lobby against the proposal, saying it would open a floodgate of old cases that will be hard for the church to defend because much time has passed. They warn that could sap resources from other church functions, putting today's Catholics on the hook for wrongdoings of the past.Supporters argue that child abuse victims aren't ready come forward until years later and are prevented from doing so by the time limits. They say lawsuits can bring justice to victims, expose pedophiles who still have access to kids and hold organizations accountable for coverups by allowing their records to be subpoenaed.The proposal had stalled for years but has gained traction in the wake of a recent state grand jury report that found rampant abuse by Altoona-area priests was concealed for decades by church leaders. The bill overwhelmingly cleared the House in April.Attorney General Kathleen Kane, whose office undertook the Altoona investigation, urged the panel to act quickly on the grand jury report's call to overhaul the time limits, also known as statutes of limitation. And if senators have constitutional concerns, she said, they should be figuring out how to solve them.“It's important that our citizens know we are all on the side of the good and not evil,” the Lackawanna County Democrat said.But Castor, who gave a legal opinion on Kane's behalf, was clear in his assessment of the bill.“The Legislature cannot retroactively revive a time-barred claim,” he said.A clause in the state Constitution prevents lawmakers from retroactively making defendants liable for something they would not have been able to be sued for before, Castor said. But, he argued, lawmakers could get around that by amending that clause out of the state Constitution since the plan would not violate the U.S. Constitution.Agreeing with Castor were: Bruce Antkowiak, a law professor at St. Vincent College; Cary Silverman, an attorney asked to testify by the insurance industry and church; and Stephen L. Mikochik, a Temple University law professor emeritus asked to testify by the church.Hamilton argued the retroactive change is allowed under the state Constitution because it relates to legal procedure, not the substance of laws.“The bishops knew when they covered up for pedophiles that crimes were being committed,” she said. “So there's nothing unfair in saying the bishops can be sued for what they knew was illegal and (open to a civil suit).”

Hamilton contended that the constitutionality questions could be settled if the Senate passes the bill as is and lets state courts weigh in if the law is challenged.

Sen. Randy Vulakovich, an Allegheny County Republican, disagreed, saying lawmakers have a responsibility to ensure that legislation they craft doesn't violate the state Constitution.And Greenleaf, in his opening remarks, said the committee must consider the measure's constitutionality and get it right.“We all are sympathetic to the cause,” he said. “But two wrongs don't make a right.”Sen. John C. Rafferty Jr. expressed support for the measure and called for the panel to advance the plan as is.“I believe that constitutional and unconstitutional decisions are best up to those wearing the black robes,” said Rafferty, a Montgomery County Republican who represents part of Berks.Rafferty is the GOP nominee for attorney general. His Democratic opponent, Montgomery County Commissioner Josh Shapiro, also urged the bill's passage in a press release Monday. He said the state's “current laws undermine the rights of survivors and leave communities across Pennsylvania at risk to these predators.”Rozzi said the retroactive provision in the bill is needed to bring overdue justice to victims and he will not support the measure if that part's removed.

In addition to hearing from the speakers, the panel accepted written testimony from two other experts who called the plan unconstitutional and another who said it was constitutional.

Supporters of the plan blasted the panel's handling of the hearing at their rally. And they questioned the inclusion of Castor, who had worked for Greenleaf's law firm and could be tasked with defending the law should it face a legal challenge.“It's just some powerful men that stand between you and justice,” Hamilton told the crowd of abuse survivors and advocates.Lawrence W. Lewis, who was Delaware's state solicitor when a similar bill passed there, also spoke at the rally. Rozzi said he had asked Greenleaf's office to include Lewis in Monday's hearing.Cawley said he received Rozzi's request to include Lewis but that he ultimately decided against it because the hearing focused specifically on Pennsylvania law. But, he said, other speakers may be invited to future hearings that take a broader look at the plan.And Thomas Neuberger, an attorney who handled many abuse cases in Delaware, said Greenleaf should remove himself from discussions of the bill because he has a conflict of interest. He said a Greenleaf's firm had argued against the similar Delaware law and defended the church in abuse cases.Cawley said Greenleaf was not involved the Delaware cases and the attorney who was is no longer with his firm. Nonetheless, he said, Greenleaf asked for an opinion from Senate Parliamentarian Megan Martin, who ruled there was no conflict of interest.Cawley said committee's intent was not to design a hearing that would favor one side but rather seek input from well-known constitutional experts.“We were trying to take a very deliberative approach,” Cawley said.