BALTIMORE (MD)
The Baltimore Banner [Baltimore MD]
February 14, 2023
By Tim Prudente
Three words.
Most legislators had never heard them. Most lawyers hadn’t, either.
Unless someone specializes in construction law, they’ve probably never encountered an obscure type of law known as a “statute of repose.”
Kathleen Hoke worked almost three decades as an assistant attorney general and law professor in Maryland before she bumped into the term. Now one might call her an expert.
“Being an expert in this space just means you understand it,” she said.
Hoke understands better than most the consequence of a bill passed by state lawmakers — unwittingly, some legislators say — to create a statute of repose for lawsuits over child sexual abuse. Five years later, the implications are still coming into focus.
Authorities recently told the courts they finished a nearly four-year investigation into the Archdiocese of Baltimore and uncovered a history of child sexual abuse by priests. The revelation set off a groundswell of support for survivors. In Annapolis, there’s more political will than ever before to remove a legal barrier for adult survivors to sue the church.
There’s just one problem — those three words.
With the statute of repose, legislators granted the church sweeping immunity — a constitutional protection they perhaps can’t take back. Few other states have gone so far.
No matter the legislative action this year, survivors won’t have a sure path to sue. Maryland’s highest court would have to clear their way.
Some lawmakers say they were duped and never intended to protect the church. They pushed through legislation in 2017 that they didn’t fully understand.
“The people who put that language in there knew exactly what they were doing,” Hoke said.
Someone knew, but who?
***
Around the country, states are reckoning with the history of clergy sexual abuse. Legislatures are rewriting laws to give survivors new chances to sue the institutions complicit in the crimes.
Research shows survivors are slow to reveal abuse from their childhood. On average, they’re 50 or older when they come forward. The old civil statutes of limitations expire by then. When survivors finally confront their trauma, it’s often too late to sue.
(Most states eliminated statutes of limitations for criminal charges of child sexual abuse.)
States are resolving the issue with “lookback windows,” periods of one, two or three years when survivors may file lawsuits that would otherwise be too late. The Philadelphia nonprofit Child USAdvocacy found 24 states opened “lookback windows,” including North Carolina, New York and Delaware.
These reforms, however, provoke debate. Opponents worry that a flood of lawsuits will bankrupt churches and schools. Insurance generally doesn’t cover these claims. Moreover, they worry institutions can’t fairly defend themselves against lawsuits based on events long ago. Evidence becomes lost and memories fade.
In Maryland, Del. C.T. Wilson, a Democrat from Charles County, has taken up the cause for survivors. Wilson, 50, has spoken publicly about suffering sexual abuse by his adoptive father. He wanted to expand the statute of limitations in 2017 and allow survivors to sue until age 38. They could previously sue until 25.
Wilson struck an agreement with the lobbying arm of the Catholic Church in Maryland. The church would support his bill, but anyone aged 25 to 38 must prove an institution met the tougher legal standard of “gross negligence.”
In March 2017, Wilson presented the agreement alongside two church lobbyists: Mary Ellen Russell, of the Maryland Catholic Conference,and John Stierhoff, of the law firm Venable LLP.
“I’m just very grateful the church did step up,” Wilson told a committee of state delegates.
“We just want to thank Del. Wilson for the hard work, and the time that he put into really talking this through and working together with us,” Russell added. “We think this is a very fair compromise.”
Wilson hugged Russell. He and Stierhoff shook hands. They left the room.
They did not mention a statute of repose.
In years to come, Wilson would say he was fooled.
***
After Wilson and the church lobbyists walked out, the House committee voted to advance the bill.
An amendment to the bill added the statute of repose. Wilson didn’t know of it at the time, he said. The record does not indicate who wrote the amendment.
It would grant the church immunity to lawsuits from survivors older than 38. That immunity could not be revoked years later by a lookback window, not without a court ruling.
Statutes of repose grant a person or entity a substantive right not to be sued — in other words, immunity. Maryland law has one other statute of repose, at least that anyone can find — in construction. The owner of a building cannot be sued for personal injury more than 20 years after a building opens. Say it falls down in year 21 — the owner has immunity. The law considers this immunity a “vested right.”
Courts have found vested rights are protected by the Maryland Constitution. That means a vested right can’t be taken away, not without firm constitutional reason.
Now, back to Annapolis in March 2017. The committee chairman, former Del. Joseph Vallario Jr., a Prince George’s Democrat, presented Wilson’s bill on the House floor. He brushed past the amendment for the statute of repose, calling it “technical.”
“My recollection was that it was in his [Wilson’s] agreement,” Vallario told The Baltimore Banner.
Wilson denies knowledge of it.
The same amended bill moved through the Senate. Over two weeks, lawmakers voted eight times on their respective floors to advance the legislation. Not once did they publicly discuss a statute of repose.
“Colleagues, I would just like to encourage you to vote for this bill,” said Del. Deborah Rey, a Republican from Southern Maryland, when the House prepared for a final vote. “The sponsor of this bill has done an amazing job bringing the story to light for us and to make this change happen. I’m just so glad I can stand with him on this bill.”
Wilson’s bill passed the House unanimously. Delegates broke into applause.
Reached by The Banner, Rey was asked if she knew about the statute of repose.
“No, what’s that?” she said. “That is not what we intended at all. … I was under the impression we were giving victims the legal right to sue up until age 38.”
Indeed, they were. But they were also granting the church immunity to lawsuits thereafter, and tying their hands on later reforms.
Before a final Senate vote, the late Senate President Thomas V. Mike Miller Jr. credited his chief of staff for the bill.
“To explain my vote, I want to thank Vicki Gruber. This is her language. This is her bill. She looked at all 50 states [and] said this is what needs to happen.”
Gruber now works as the executive director of the Department of Legislative Services. She denies coming up with the statute of repose.
“I don’t know why Mike would say that,” she told The Banner. “The language came over to us after a deal was struck in the House. You’d have to talk to some of the people who were there in the House. We were given a call from John Stierhoff [the church lobbyist]. He says, ‘We worked out an agreement on the language.’”
Wilson’s bill passed the Senate unanimously.
Two years would pass before many lawmakers realized what they had done.
***
Wilson had promised that he would not return to expand on his 2017 legislation. “I have given my word that once this bill becomes law, I won’t come back to the well.”
By February 2019, however, he wanted to go further. Wilson sponsored a bill that would open the state’s first lookback window, of two years, for lawsuits over child sexual abuse.
Before a committee vote, his colleagues sought routine legal advice.
Unaware of the statute of repose, Assistant Attorney General Kathryn Rowe concluded a lookback window wasn’t automatically unconstitutional, though an appellate opinion left open the door for a challenge. The committee passed the bill 17-4.
Then Del. Kathleen Dumais, a Democrat from Montgomery County, told lawmakers she wanted to strip out the lookback window. She told them it was unconstitutional because of a legal term unfamiliar to many of them. That set off a flurry of phone calls: What was a statute of repose?
Dumais supported her position with a 14-page legal analysis by Venable. The firm employs Stierhoff and handles legal work for the church.
“I am concerned about setting our civil justice system on its head,” Dumais said on the House floor. “When I’m 60 and I’m suing an institution for something that occurred when I was 8, do you think that institution can defend itself?”
A frustrated Wilson went off on the floor.
“I sure didn’t know that was in my bill,” he said. “Know when I heard about a statute of repose? Yesterday.”
He urged lawmakers to pass the lookback window anyway.
“At no time did anybody here know about a statute of repose. It was snuck in. This surreptitious behavior should not be allowed. … They snuck some language in the back end after we all thought we had done something good.”
Wilson’s bill passed with the lookback window and moved to the Senate.
Meanwhile, Dumais sent Venable’s analysis to the attorney general’s office. Now Rowe took a firmer stand on the matter. She admitted that she did not realize the legislation two years earlier had created a statute of repose. Rowe concluded, in light of that, a lookback window would “most likely be found unconstitutional” by the courts.
With its legality in doubt, Wilson’s bill stalled amid a 5-5 vote in a Senate committee.
That same year, eight other states passed lookback windows, ranging from one year in New York to three years in California, according to Child USAdvocacy.
The next year, in 2020, Wilson tried again for a lookback window. His bill passed the House, but it was ignored in the Senate. In 2021, he tried again, but withdrew his bill amid opposition.
Last year, he didn’t bother.
***
Wilson accepts some blame for the legal mess.
The statute of repose was added to his bill in what’s called “uncodified language,” essentially the fine print. Uncodified language counts as law, but generally resolves how a bill should be applied. It’s unusual for a substantive provision to appear in the uncodified language.
“I didn’t know that the uncodified language mattered. Why would I know that?” Wilson told The Banner. “I didn’t even think to look there.”
To be sure, Wilson had access to the uncodified language. He emailed himself the bill’s amendments, including one for the statute of repose. Each lawmaker has access to the uncodified language.
And yet, no one spoke up to ask about its meaning.
When questions arose in 2019, former archdiocese spokesman Sean Caine told The Washington Post the church was upfront. “If you don’t know what your bill says, that’s a problem.”
Russell has retired from the Maryland Catholic Conference, the church’s lobbying group. She declined questions through a spokeswoman. The spokeswoman, Susan Gibbs, said she doesn’t know if Russell or anyone else volunteered an explanation of the statute of repose.
Wilson has ideas about who was behind the provision.
“I attribute it to John Stierhoff, without a doubt. There’s nobody else,” Wilson said. “I was tricked by people who run this place.”
Wilson believes the lobbyist came up with the statute of repose and pushed the amendment to church allies in the House and Senate. Stierhoff maintained a close relationship with the late Senate president. He worked as counsel and chief of staff to Miller from 1986 to 1994.
In an interview with The Washington Post, Miller described Stierhoff as “a person I raised, almost like a son to me.”
Stierhoff declined questions. State ethics disclosures show the Maryland Catholic Conference paid him almost $35,000 in 2017 to lobby on the issues of Wilson’s bill.
Wilson, meanwhile, has spent the past years trying to undo the statute of repose.
“You have no idea how much regret I have even working with those devils. You can quote me. To be of God and doing that surreptitiously behind people’s back?” Wilson told The Banner. “I would rather them have told me and fought me the whole way down instead of being sneaky.”
Wilson resolved to help survivors sue because of the abuse he suffered as a boy. It’s not just about money to them, many survivors say. Lawsuits and jury trials also expose abusers and their enablers.
“You know how bad it feels to think you did something great, only to find out you may have done more harm?” Wilson said. “I may be the one protecting them. … So yeah, I have a hard time sleeping.”
He returned to Annapolis last month to try again for a two-year lookback window. He wants to repeal the statute of repose, too. This legislative session, it’s House Bill No. 1.
His latest try gains momentum from the recent disclosure of a grand jury investigation into the Archdiocese of Baltimore. State investigators told the courts they looked back 80 years and identified 158 priests accused of the “sexual abuse” and “physical torture” of more than 600 victims. They want court approval to release their findings to the public.
Past attempts for a lookback window stalled in the Senate. Now Sen. William C. Smith Jr., chairman of the Judicial Proceedings Committee, considers the issue a priority. He sponsored the bill in the Senate and has been meeting with survivors since the summer. An online petition has 400 signatures and urges lawmakers to pass House Bill No. 1.
House Bill No. 1 wouldn’t single out the church. Elite private schools such as Gilman and the Key School of Annapolis issued reports in recent years that acknowledge a history of sexual abuse on their campuses.
“Yes, we will create this lookback window, and I suspect it will be challenged in court,” Smith said.
No one really knows whether lawmakers have authority to repeal a statute of repose. Doing so would likely send the church lawyers into court to argue that lawmakers gave a vested right to immunity and can’t take it back.
Survivors and their attorneys argue the statute of repose should not stand, that lawmakers never intended to protect the church, and that civil immunity for child abuse wanders far from the purpose of a statute of repose. They’re reaching back through history to support the argument. An 1850s legal opinion found “no vested right can violate a moral duty.”
“This is no slam dunk for us,” said Hoke, the law professor. “This will be hotly litigated, and the Supreme Court of Maryland’s going to have to make a decision.”
She recently found new grounds to support their argument. Maryland lawmakers passed a two-year lookback window in the 1990s for asbestos lawsuits. Those claims had previously been blocked by the statute of repose in construction.
The professor hopes the legal mess brings a teachable moment for Maryland lawmakers. “That legislation gets read with a closer eye.”
The Maryland Catholic Conference has supported new reforms, just not a lookback window. In December, the church lobbyists made reference to the statute of repose, saying again the lookback window would be unconstitutional.
They made no mention of the church’s hand in creating the statute of repose.
Reporter Pamela Wood contributed to this article.
tim.prudente@thebaltimorebanner.com