Shapiro can get justice for Pa. survivors of child sex abuse. Here’s how.

Philadelphia Inquirer [Philadelphia PA]

July 12, 2023

By Patrick Beaty, For The Inquirer

Shapiro can get justice for Pa. survivors of child sex abuse. Here’s how.

Five years ago this month, a Pennsylvania grand jury issued a scathing report detailing decades of child sexual abuse by Catholic priests and a cover-up by the church hierarchy. The grand jury included several recommendations for reform of the criminal and civil justice systems, including the creation of a two-year window allowing adults to sue for damages for abuse that occurred when they were minors and the statute of limitations has passed.

This year, on May 22, the Pennsylvania House of Representatives passed a proposed constitutional amendment to establish the two-year window. The state Senate had already passed the constitutional change in January. Both chambers of the General Assembly also voted in favor of the civil justice window during the prior session of 2021-2022.

The next step in the amendment process is for voters to consider the proposed change. Opinion surveys show the issue has strong public support. If a majority votes in favor of the amendment, it will become part of the state constitution, and abuse survivors will finally have an opportunity to seek justice in Pennsylvania courts.

That is the way the process is supposed to work. Unfortunately, it appears that survivors may have to keep waiting for months — or even years — before the civil justice window appears on the ballot for voter approval.

That is because the Democratic majority in the House removed two unrelated constitutional changes that the Senate Republican majority had included in the bill they passed in January. One measure would require voters to prove their identity every time they vote, and the other would give lawmakers veto power over executive agency regulations.

Senate Majority Leader Joe Pittman (R., Indiana) continues to insist his caucus won’t reconsider the proposed reform for survivors to sue their abusers as a stand-alone issue.

In the process, Pittman has dashed the hopes of the hundreds of survivors in Pennsylvania who had hoped to see the ballot measure creating a two-year window to sue for justice in November.

But it may not be too late.

All proposed constitutional changes must be advertised three months before the election they will be considered in. The advertising deadline for the upcoming municipal election is Aug. 7, just a few weeks away. However, the Senate is now in recess until late September.

Still, there is a way for Gov. Josh Shapiro to deliver on the recommendation of the grand jury he oversaw during his time as attorney general.

It would require bold action by the executive in the face of a recalcitrant Senate, and a willingness to test the limits of his power in the courts if it should come to that.

Shapiro could simply declare that the legislature has already completed its role in the amendment process, and he is instructing his secretary of the commonwealth to advertise the civil justice window for the November ballot.

Shapiro’s action would find support in the language of Article XI of the state constitution, as well as a line of court decisions holding that the rules for enacting statutes do not apply when it comes to amending the constitution. More than a century ago, in the case of Commonwealth v. Griest, the Pennsylvania Supreme Court stated that while the legislature has a required role in the amendment process, a constitutional amendment is “not a law, an order, a bill or a resolution.” Subsequent court decisions have consistently stated that the only requirements for amending the constitution are those contained in Article XI.

As far as the legislature’s role is concerned, Article XI says only that a majority of the members elected in both chambers must agree to the same amendment twice in consecutive sessions. It does not say they must agree to the same bill containing that amendment.

If Shapiro were to instruct Secretary of the Commonwealth Al Schmidt to move ahead with advertising the civil justice window for the November ballot, his action would likely be met with a court challenge.

But how much longer must abuse survivors wait and continue to suffer when Senate Republicans have made clear their intention to run out the clock on the proposed reform?

Shapiro should tell Secretary Schmidt to put the civil justice window on the ballot this November.

Patrick Beaty served more than 20 years in Pennsylvania state government in both the legislative and executive branches, including as legislative counsel to Gov. Robert Casey.