Will public institutions be held liable for decades-old abuse claims? Pa. Senate bill wants to make sure they can

As they’ve put in motion a effort to salvage a long-sought reform for child sex abuse victims, state lawmakers have split on whether they’re using their emergency powers appropriately. 

But an amendment that a key state Senate committee approved Tuesday seeks to put to rest a separate debate: whether public institutions, such as local government and schools, can be held liable for abuse that took place decades ago. 

The Senate Judiciary Committee voted 10-4 on Tuesday to advance an emergency constitutional amendment opening a two-year window for victims of childhood sexual abuse to revive civil cases of that have passed their statute of limitations.

The committee voted by the same margin to add in language drafted by Judiciary Committee Chairwoman Sen. Lisa Baker, R-Luzerne, making clear that government entities will be liable to face suits, and that there’s no cap on how much they’ll have to pay out to victims.

“It’s a matter of equity and fairness,” Baker said Tuesday. “If [this] applies to a parochial school, it should apply to a public school, too.” 

Public entities are typically shielded from such claims under a legal doctrine known as sovereign immunity. But Act 87, a law that Gov. Tom Wolf signed in 2019, waived that protection in child sex abuse cases, allowing public institutions to be found liable if a court rules that their negligence permitted the sexual abuse of children.

The same law also removed limits on how much money public agencies could award to victims to settle those cases. A state statute caps most publicly funded settlements at $500,000 in an effort to save costs for taxpayers.

Act 87 applied prospectively to all cases filed in civil courts filed after it took effect. Baker told the Capital-Star Tuesday that lawmakers always intended for it to apply to cases filed under the two-year retroactive window, too, even though it would be another two years until it opened.

Lawmakers granted preliminary approval in 2019 to the amendment creating the two-year window for revived suits. They needed to advance it again in the 2021-2022 legislative session before sending it to voters for ratification. 

Mike Cortez, Baker’s lead counsel on the Judiciary Committee, said that lawmakers thought the 2019 amendment made clear that cases could be brought against public institutions as well as private ones. 

But after hearing that some stakeholders were arguing otherwise, Baker’s office drafted a new version to remove any ambiguity about whether Act 87 would apply to the renewed cases.

Cortez did not say which groups or industries identified a grey area in the law, and it’s unclear how wide that perception spread. One law firm in Philadelphia told its clients that the original amendment lawmakers passed in 2019 could “in theory” be used to bring suits against public schools.

But the bill that the Judiciary Committee advanced to the Senate floor Tuesday is definitive. It specifies that any civil cases filed under the amendment should be “unencumbered” by the doctrine of sovereign immunity and by limitations on taxpayer-funded settlements. 

The language Baker proposed Tuesday hasn’t gotten approval yet from the full Senate or the state House. The lower chamber advanced its own companion bill this week, which suggests that cases brought under the two-year window will be subject to laws currently in effect.  

Baker said the final product may require compromise between the House and Senate leaders, since both chambers must pass identical versions of the amendment in order to send it to voters.  

The two-year civil window is often framed as an effort to provide reparations for clergy abuse victims who missed their chance as children and young adults to file civil cases against their abusers. It was one recommendation in a 2018 grand jury report published by Pennsylvania’s Attorney General Office, which detailed decades of abuse and cover-up in Pennsylvania’s Catholic dioceses. 

But the policy isn’t strictly limited to clergy abuse victims. Anyone who wants to pursue civil damages for an old case would be able to file one if the amendment takes effect.

That means that if a child was abused by a public school teacher who got cover from their employer, the school could be found liable for damages in court. 

Approving a constitutional amendment in Pennsylvania requires the House and Senate to approve identical resolutions in two consecutive legislative sessions before voters have the chance to ratify it. The General Assembly first approved the amendment for abuse survivors in 2019.

They were on track to send it to voters this spring until the Wolf administration revealed that it failed to advertise the proposal in newspapers, as is required by law. The clerical error threatened to restart the clock on the years-long amendment process. 

Lawmakers decided last week to use emergency provision in the state constitution that allows them to send an amendment to voters in just one month.