Dear Assemblyman Nazarian: You are the California Assembly representative for my district. I am writing today to urge you to oppose SB 131, which is coming up for a vote before the Assembly in the very near future. As you know, SB 131 would make dramatic changes in the statute of limitations governing certain sexual misconduct directed at children:
This bill would provide that the time limits for commencement of an action for recovery of damages suffered as a result of childhood sexual abuse shall be applied retroactively to any claim that has not been adjudicated to finality on the merits as of January 1, 2014. This bill would revive, for a period of one year, a cause of action, as specified, that would otherwise be barred by the statute of limitations as of January 1, 2014, provided that the plaintiff’s 26th birthday was before January 1, 2003, and the plaintiff discovered the cause of his or her injury on or after January 1, 2004.
I believe that you should vote AGAINST SB 131 and urge you to do so. This bill is seriously flawed, unfair, and probably unconstitutional.
Why do we have statutes of limitations? An excellent summary of the rationale behind statutes of limitations is taken from Lauren Kerns, "Incorporating Tolling Provisions into Sex Crimes Statute of Limitations", 13 Temple Policy and Civil Rights Law Review, 325, 327 (2004):
Criminal statutes of limitations are laws that limit the time during which a prosecution can be commenced. These statutes have been in operation for over 350 years and are deeply rooted in the American legal system. There are several rationales underlying statutes of limitations. First, they ensure that prosecutions are based upon reasonably fresh evidence - the idea being that over time memories fade, witnesses die or leave the area, and physical evidence becomes more difficult to obtain, identify or preserve. In short, the possibility of erroneous conviction is minimized when prosecution is prompt.
SB 131 is clearly inconsistent with that principle. It would force defendants to deal with an unworkable legal and business climate where they face unknown liability of an unknown duration under conditions where the passage of time–30, 40 or 50 years or more–make mounting an effective defense next to impossible.
Second, statutes of limitations encourage law enforcement officials to investigate suspected criminal activity in a timely fashion.
SB 131 eliminates that incentive by eliminating the statute of limitations.
[Third,] as time goes by, the likelihood increases that an offender has reformed, making punishment less necessary. In addition, society's retributive impulse may lessen over time, making punishment less desirable.
Oddly, SB 131 seeks to punish not just the actual wrongdoers, but also the organizations that employed them. As to the latter, surely the case that time lessens the justification for punishment is even more true than with respect to the actual offenders.
Finally, there is the thought that statutes of limitations provide an overall sense of security and stability to human affairs.
SB 131 is particularly unfair from this perspective. Indeed, SB 131 breaks faith with assurances given by the Legislature 10 years ago when it enacted SB 1779 (Burton), a one-time, one-year lifting of the statute of limitations for all of 2003 that allowed any victim of sexual abuse—regardless of how long ago it occurred—a second chance to file a lawsuit. SB 131 thus would revive claims for an unprecedented third time.
SB 131 is further flawed by its fundamental unfairness. SB 131 covers incidents of abuse that may have taken place in private schools, not public schools, so the 92 percent of California children who attend public schools aren’t covered. This discriminates against both public school children and operators of private schools. Why do public schools and teachers get a free ride, while their students get no relief and their private school counterparts face potentially staggering liability?
The financial impact cannot be ignored. As I pointed out in my law review article, The Bishop's Alter Ego: Enterprise Liability and the Catholic Priest Sex Abuse Scandal, 48 Journal of Catholic Legal Studies 65 (2007) (Available at SSRN: http://ssrn.com/abstract=901663), unlimited liability exposure for the Catholic Church will "impede, if not destroy, the ability of these ministries to serve the needs of their congregants. Indeed, the mere threat of liability might do so: 'Both church and society will suffer if the continuation of ministries prompted by compassion—ministries often involving risks—is stopped short by the nervous calculation of legal liabilities.'” [Quoting Edward McGlynn Gaffney, Jr. & Philip C. Sorensen, Ascending Liability in Religious and Other Nonprofit Organizations viii-ix (1984).]
Finally, speaking as a lawyer and law professor with over 30 years experience, I simply do not understand how SB 131's retroactive application can be supported in light of Stogner v. California, 539 U.S. 607 (2003), which held that application of California law, permitting prosecution for sex-related child abuse within one year of victim's report to police, to offenses whose prosecution was time-barred at time of law's enactment was unconstitutionally ex post facto. Granted, Stogner involved a criminal--not a civil--statute of limitations. See DeLonga v. Dioceses of Sioux Falls, 329 F. Supp. 2d 1092, 1102 (D.S.D. 2004) (arguing that Stogner recognized a distinction between civil and criminal cases and that the Supreme Court has, in the past, defined a violation of ex post facto laws solely in conjunction with criminal and punitive statutes). But many of the legal arguments therein apply with equal force to civil statutes of limitation. At the very least, moreover, Stogner's policy arguments demonstrate that SB 131 is unwise even if it were found constitutional.
In Stogner, Justice Stephen Breyer writing for the majority, explained that:
Long ago Justice Chase pointed out that the Clause protects liberty by preventing governments from enacting statutes with “manifestly unjust and oppressive” retroactive effects. Calder v. Bull, 3 Dall. 386, 391, 1 L.Ed. 648 (1798).
The unfairness inherent in SB 131 that I have detailed above surely implicates this argument against the bill. The unfair disparate application of SB 131 to public and private organizations, plus the oppressive costs and uncertainty clearly violate the principle Justice Chase laid down.
Returning to Justice Breyer's opinion in Stogner, he further explained that:
Judge Learned Hand later wrote that extending a limitations period after the State has assured “a man that he has become safe from its pursuit ... seems to most of us unfair and dishonest.” Falter v. United States, 23 F.2d 420, 426 (C.A.2), cert. denied, 277 U.S. 590, 48 S.Ct. 528, 72 L.Ed. 1003 (1928). In such a case, the government has refused “to play by its own rules,”Carmell v. Texas, 529 U.S. 513, 533, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000). It has deprived the defendant of the “fair warning,” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), that might have led him to preserve exculpatory evidence.
As we have seen, of course, the indefinite--potentially multiple decade--extension contemplated by SB 131 is equally "unfair and dishonest" and will deprive its targets of the ability to obtain a fair trial.
In sum, SB 131 is a bad law. It must be defeated. I strongly urge you not just to vote no on SB 131, but to vigorously oppose it.
Stephen M Bainbridge
William D Warren Distinguished Professor of Law
UCLA School of Law (affiliation provided solely for purposes of identification and not to imply any endorsement of the views herein by UCLA)