Statutes of Limitation Retroactivity Would Violate Pa. Constitution

By A.B. Hill
Catholic Philly
June 16, 2016

http://catholicphilly.com/2016/06/think-tank/commentaries/statutes-of-limitation-retroactivity-would-violate-pa-constitution/

The Pennsylvania Senate Judiciary Committee hosted a hearing this week regarding the legality and constitutionality of House Bill 1947. The measure, passed the Pennsylvania House of Representatives in April, proposes to remove the criminal statute of limitations (SoL) for childhood sexual abuse and raise the civil SoL from age 30 to 50 moving forward.

It also retroactively opens the civil SoL from survivor’s age 30 to age 50.

Experts on Pennsylvania’s constitution presented their opinions to Judiciary Committee members with a particular focus on the retroactive provision of the bill.

“The purpose of today’s hearing is not to hear about those facts (that child abuse occurred),” said committee chairman Sen. Stewart J. Greenleaf (R-Bucks, Montgomery). “These matters are highly complex and I expect that this committee will require ample time to carefully consider today’s testimony and weigh each side.”

Six individuals testified, including Attorney General Kathleen Kane; Bruce Castor, solicitor general, Office of Attorney General; Bruce Antkowiak, professor of law at St. Vincent College; Cary Silverman, partner in the Public Policy Group with Shook Hardy & Bacon; Stephen Mikochik, emeritus professor of constitutional law at Temple Law School in Philadelphia and visiting professor of jurisprudence at Ave Maria Law School in Florida; and Marci Hamilton, academic director, CHILD USA. Several other experts offered written opinions that were entered into the record.

(A video of the hearing and links to the testimony are available on Sen. Greenleaf’s website.)

Bruce Castor argued “the retroactivity provisions of House Bill 1947 would violate the Remedies Clause of the Pennsylvania Constitution.” He explained that he reviewed the opinions of various legal scholars on both sides of the question in reaching this conclusion.

Should the bill become law and face a court challenge on the issue, the Office of Attorney General would be charged with defending the question of constitutionality on behalf of the commonwealth.

Almost all of the testifiers agreed with Castor, citing many of the same Pennsylvania court cases. Bruce Antkowiak concluded, “Unless the Supreme Court of Pennsylvania abandons a line of precedent reaching back to a time before the Civil War,” the sections that revive time-barred claims will fall under constitutional challenge.

“My conclusion,” attorney Cary Silverman, “is that over 150 years of Pennsylvania law is consistent and unequivocal on this point: reviving a civil claim for which the statute of limitations has run impermissibly interferes with a vested right and violates the Remedies Clause of the Pennsylvania Constitution.”

He further noted that the Pennsylvania Constitution in Article I, Section 11, contains a provision known as the Remedies Clause. The provision does not permit the General Assembly to eliminate certain fixed rights, including the right to bring an accrued claim or the right to assert an established defense.

Silverman, an adjunct professor at George Washington University Law School, was asked by the Insurance Federation of Pennsylvania and the Pennsylvania Catholic Conference to closely examine the issue.

Marci Hamilton, a strong proponent of retroactive revivals of civil statutes of limitation, disagreed. She testified that in her opinion, statutes of limitation are procedural and not substantive and therefore would be considered by the courts to be constitutional.

Hamilton is also a plaintiff’s attorney who has represented many sexual abuse victims in cases against the Catholic Church around the country and here in Pennsylvania.

It is expected that the Senate Judiciary Committee will consider HB 1947 for a vote in the coming weeks. Visit www.pacatholic.org for more details about the church’s serious concerns about this legislation and how to contact your state senator through the Catholic Advocacy Network.

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Amy Hill is communications director for the Pennsylvania Catholic Conference, the public affairs agency of Pennsylvania’s Catholic bishops and the Catholic dioceses of Pennsylvania.