BALTIMORE (MD)
Baltimore Sun [Baltimore MD]
December 6, 2023
By Alex Mann
Attorneys for survivors of child sex abuse in Maryland are set to defend this week a law that victims advocates fought to enact for decades: It enables victims to sue their abusers, or the institutions that enabled them, no matter the victim’s age or how much time has passed since their torment.
Maryland’s Child Victims Act came under fire in a pair of lawsuits brought under the landmark law in Montgomery and Prince George’s counties targeting the Roman Catholic Archdiocese of Washington.
The Washington diocese, which is incorporated in Maryland, last month argued the law is unconstitutional in a request to throw out both complaints, which claimed child sexual abuse by clergy.
Friday is the deadline for survivors in both cases to defend the child victims law — or argue why they believe it’s constitutional.
The legislature anticipated this legal battle: When lawmakers passed the Child Victims Act in the spring, they included a provision allowing a mid-case appeal almost certainly leading to the Supreme Court of Maryland. But that means the arguments being hashed out today in county court documents likely foreshadow what lawyers will eventually present to the state’s highest court.
In motions filed in the Montgomery County and Prince George’s County lawsuits, church lawyers said the Maryland General Assembly gave defendants special immunity in 2017 by creating what’s known as a “statute of repose,” as part of a bill extending to 38 the age by which a child sex abuse survivor could sue. They argue that provision creates a “vested right,” or something lawmakers can’t simply undo.
If a court finds that the 2017 provision did not provide immunity, lawyers for the diocese added, the legislature repealing the age cutoff amounts to taking away a right from defendants.
“A statute of ‘repose,’ by its very nature, cannot be retroactively ‘repealed,’ and the legislature’s effort to do so was a clear violation of the due process clause and takings clause of the Maryland Constitution,” church lawyers wrote.
Attorneys for abuse survivors say they have strong points to defeat both parts of the church’s argument.
“We fervently believe that it’s not a statute of repose, that it’s a statute of limitations,” said Jonathan Schochor, whose firm represents the plaintiffs in the Prince George’s County lawsuit. “The legislature on numerous occasions has retroactively changed the statute of limitations, which this clearly is. Therefore, the Archdiocese of Washington has no constitutionally protected interest.”
Robert K. “Rob” Jenner, one of the lawyers representing the plaintiff suing the Washington diocese in Montgomery County, agrees. But even if a court decides the 2017 law did create a statute of repose, the legislature had the power to change it, he said.
“They’ve created it and they can modify it,” Jenner said. “That’s been done before and it will happen in the future. There’s nothing unique about a legislative body changing a statute.”
The only other known statute of repose in Maryland is found in the construction industry, according to experts. In that context, the legal provision protects the likes of builders and architects from liability stemming from an injury someone sustains in the buildings they created after a certain amount of time has passed since the building was constructed — no matter when that person was hurt.
But Maryland lawmakers adjusted that statute of repose in 1991, carving out an exception for claims related to buildings made using asbestos. The Maryland Catholic Conference, the church’s lobbying arm, fought for the change, arguing that the three dioceses that operate in Maryland needed to be able to sue the builders who constructed Catholic schools or else face a “daunting” financial burden to fix the schools.
Kathleen Hoke, a law professor at the University of Maryland Francis King Carey School of Law, sees the asbestos example as one point in the plaintiffs’ favor.
“Our legislature in Maryland has demonstrated, in 1991, what we’re saying, and that is: In Maryland, these types of procedural bars can be changed with retroactive effect for really good public policy reasons,” Hoke said.
After the plaintiffs’ responses are filed in each case, the church’s lawyers will have a certain amount of time to submit a written reply. Then, a judge will set a hearing to have oral arguments.
For such a complicated legal question, a judge is likely to render a written opinion rather than ruling from the bench immediately following argument, said Hoke.
“Once the court decides,” Hoke said, “whichever party loses has a right to appeal” to the Appellate Court of Maryland. Whoever appeals can simultaneously submit a petition asking the state Supreme Court to take up the case. “We all predict the Supreme Court will just take the case,” Hoke added, because it’s a legal question “of first impression, super important public policy issue.”
Hoke said the appeals courts could take just one of the Montgomery and Prince George’s cases, or combine them.
Philip C. Federico, an attorney representing the survivor in the Montgomery County lawsuit, said the plaintiffs’ lawyers have been working together to solidify their legal arguments, despite not being particularly collaborative historically.
“We’re up against the best of the best and the deepest of the pockets,” Federico said. “We believe we’re up to the challenge.”
In the Prince George’s County case, three men say they were abused as young children by priests, deacons or other Washington diocese employees while they attended churches or schools in Prince George’s or Montgomery counties. A class action lawsuit, the complaint says their experiences mirrored those of other victims.
The Montgomery County lawsuit alleges a man suffered “horrific” sexual abuse at the hands of a priest in a Gaithersburg church he attended as a child. The church knew of the priest’s predatory behavior before the plaintiff was abused, but allowed the clergyman to continue to interact with children, according to the complaint.
The Baltimore Sun does not identify victims of sexual abuse without their permission.
The legal fight over the Child Victims Act is unfolding alongside the Archdiocese of Baltimore’s bankruptcy case. Just two days before the child victims law took effect this fall, the Baltimore diocese declared bankruptcy to limit its liability against potential damages and protect its assets in anticipation of a flood of lawsuits claiming child sex abuse by clergy.
A report by Maryland’s Office of the Attorney General released in April, which laid out the findings of a four-year investigation into child sex abuse in the Baltimore diocese, America’s oldest, revealed 156 clergy and other church officials tormented and molested more than 600 children and young adults dating to the 1940s.
Filing for bankruptcy will effectively create a different, earlier statute of limitations, for child sex abuse claims against the Baltimore diocese. The bankruptcy case is expected to span up to three years.
It’s difficult to say how long the appeal will take, but courts across the state are likely to put a freeze on other lawsuits filed under the Child Victims Act — whether they’re against a state agency or a prestigious private school — until the state Supreme Court rules on the constitutionality of the law.
Steven J. Kelly, who also represents the Montgomery County plaintiff, said it has been difficult to tell clients, many of whom for decades fought for the right to sue their abusers, that they have to wait a little longer for their day in court.
“It’s very traumatic,” Kelly said. “The uncertainty, the waiting, it’s killer. Some people won’t survive to see their claims resolved.”