Guest Column: Add 1 legal voice backing HB 1947 sex abuse bill

By Thomas Neuberger
Daily Times
June 28, 2016

http://www.delcotimes.com/opinion/20160628/guest-column-add-1-legal-voice-backing-hb-1947-sex-abuse-bill

The Rutherford Institute in Charlottesville, a defender of civil liberties, has issued an independent 4,400 word report on the legality of HB1947. A summary follows.

The Bill Passes Federal Muster:

Applying legal terms similar to those in dispute, for almost 150 years, the U.S. Supreme Court has ruled six times that retroactive civil laws violate no constitutional protections. “It is beyond dispute that ... [a legislature] has the power to enact laws with retrospective effect.” St. Cyr, (2001).

Constitutions Are Living Documents Subject to Changing Interpretations Over Time:

Just because a court interpreted a Pennsylvania constitutional provision one way 108 years ago does not mean it will not be interpreted differently today. Court interpretations of static language and provisions change over time. This can happen for a multitude of reasons, ranging from a better scholarly understanding of the language, to changing societal values or norms, to a simple decision by a Supreme Court to go in a different interpretational direction for public policy reasons. The case law is full of examples of this.

In 1896 “separate but equal” was forced on blacks, but in 1954 Brown held separate can never be equal. In 1986 gay sex was criminal, Bowers, but 17 years later it was legal.

Lawrence. Free speech only applied to the federal government, until after a century the states had to protect it also.

Marriage was only for a man and woman, until Obergefell just last year.

10 Sister States Already Have Upheld Their Retroactive Child Abuse Laws After State and Federal Constitutional Attacks:

At least 10 states have enacted retroactive childhood sexual abuse legislation similar to HB1947 and had them upheld by the courts over constitutional attacks. Connecticut (2015), Massachusetts (2015), Hawaii (2014), Delaware (2011), California (2005), Vermont (1999), South Dakota (1997), Kansas (1996), Montana (1993), and Minnesota (1990).

The 2015 Survey by the Connecticut Supreme Court Also Places The Weight Of Another 19 Sister States On The Side Of HB1947:

Importantly, 19 states successfully have applied retroactive legislation in contexts beyond childhood sexual abuse, in circumstances as varied as exposure by military veterans to Agent Orange, medical malpractice, civil rights, asbestos and other toxic torts, insurance, products liability, student loans, paternity, wrongful death and other personal injuries.

Connecticut noted that at least 19 states follow the above federal approach and allow the retroactive expansion of the statute of limitations to revive otherwise time-lapsed claims in varied circumstances.

Retroactive Application of Statutes of Limitations Does Not Disturb Vested Rights Under Pennsylvania Law:

In McDonald (Pa. Commw. 2008), the court found that a change in a statute of limitations was permissible, because it was merely a procedural change, not a substantive one.

The court explained that no one has a vested right in a statute of limitations or other procedural matters and instead the legislature may at any time alter, amend, or repeal such provisions without offending constitutional restraints.

Reliance on Lewis (Pa. 1908), for a contrary position, is misplaced. The facts of the case addressed retroactive expansion of negligence liability – the statute at issue created a new category of liability and thus could not be applied retroactively. It was not addressing something which was illegal at the time it previously had occurred, such as rape of a child, always illegal.

The decision did not specifically endorse the characterization of expired limitations periods as vested rights and it did not concern revival of a civil claim at all. Only pure dictum speaks to the contrary.

Lewis also was distinguished by Konidaris (Pa. 2008), which upheld a retroactive amendment to the Tax Liens Act, despite the Remedies Clause of the Pennsylvania Constitution.

Perhaps the most persuasive legal principal found in Pennsylvania law is that there simply is no vested right to do wrong in Pennsylvania. Kiskaddo, (Pa. Super. 1902).

The Pennsylvania Remedies Clause:

The Remedies Clause of the Pennsylvania Constitution is not distinctive either, 39 other states contain similar clauses, and it thus does not require a unique constitutional interpretation. So, as the U.S. Supreme Court has explained, the “sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.” Ashcroft (2002).

And, as Dr. King pointed out in his powerful “Letter from Birmingham City Jail,” “justice too long delayed is justice denied.”