School board group backs Gaston County in state Supreme Court SAFE Child Act case

Rep. Dennis Riddell, R-Alamance, top left, and Sen. Danny Britt, R-Robeson, championed the SAFE Child Act in 2019.

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  • The North Carolina School Boards Association backs the Gaston County school board's state Supreme Court appeal in a case involving the SAFE Child Act.
  • The Gaston board hopes North Carolina's highest court will overturn a decision that upheld the act as constitutional.
  • The act opened a two-year "revival window" in 2020 and 2021 for lawsuits from adults who claimed to have been sexually abused as children. The Gaston board is a defendant in one of those suits, known as McKinney v. Goins.

The North Carolina School Boards Association supports the Gaston County school board’s appeal in a state Supreme Court case tied to the SAFE Child Act. The local school board wants the high court to overturn a decision that upheld the act as constitutional.

The school boards association filed a friend-of-the-court brief in the case Monday.

“The SAFE Child Act (‘Act’) opened a two-year period (‘revival window’) for potential plaintiffs to bring previously time-barred claims for child sexual abuse,” the brief explained. “This provision has led to a flood of litigation against local boards of education (and other youth-serving organizations) based on often decades-old allegations of criminal misconduct by their employees.”

“Current school boards, as well as current administrators, teachers, and students, are thus forced to bear the wide-ranging burdens of unanticipated litigation for long-ago harms they did not cause and over which they had no control,” the school boards’ brief added. “In sum, the revival window upends school boards’ justified reliance on settled law and does little to accomplish the Act’s stated purpose of protecting children from sexual abuse. This Court need not look any further than its own well-established precedent in order to conclude that the General Assembly cannot revive previously time-barred claims.”

The School Boards Association filed its brief on the same day the state Supreme Court received requests from other groups supporting the Gaston County school board: the North Carolina Association of Defense Attorneys, American Tort Reform Association and American Property Casualty Insurance Association, and the Kernersville Family YMCA.

The Gaston board filed its own legal arguments on Monday supporting its case. “Citizens of North Carolina hold inviolable vested rights, protected by North Carolina’s Constitution since 1776,” according to Gaston schools’ lawyers. “The Revival Window at issue in this dispute, which eliminated statutes of limitations and repose for any civil action for child sex abuse during a two-year period, strips the citizens of North Carolina of vested rights that they have held since the beginning of our State.”

“If this Court accepts the reasoning of the Court of Appeals plurality, the General Assembly will be able to resurrect claims whenever it wants, for whatever reason it wants, depending on how the political winds are then blowing,” the brief continued.

“Reviving the instant claims will be only the beginning; today the claims are for child abuse, but future iterations of the General Assembly would be able to resurrect any claims that its members desire: products liability, construction defect, claims against law enforcement officers, legal malpractice, public officer liability, medical malpractice — the list is literally endless,” school board lawyers warned.

The Gaston County school board appealed to the state’s highest court in September, eight days after a split state Court of Appeals panel upheld the SAFE Child Act as constitutional.

The school board is a defendant in McKinney v. Goins, a case challenging the 2019 act as unconstitutional.

“The dissent by Judge [Jeff] Carpenter was based on the following issue, which directly involves a substantial question arising under the Law of the Land Clause of article I, section 19 of the North Carolina Constitution and which the Board will present to the Supreme Court of North Carolina for appellate review: Did the Court of Appeals err by overruling binding precedent in order to resurrect Plaintiff’s time-barred claims, when legislation retroactively reviving such claims ‘is inoperative and of no avail’ because it ‘takes away vested rights of defendants, and therefore is unconstitutional,’” wrote the school board’s lawyers.

“If permitted to stand, the Court of Appeals’ judgment will deprive the Board of its vested rights secured by the Law of the Land Clause in the extinguishment of legal liability for claims barred by the applicable statute of limitations,” the notice of appeal continued. “This constitutional issue was timely raised in the trial tribunal, which ruled in the Board’s favor and dismissed Plaintiffs’ claims as time-barred and not subject to revival. This constitutional issue was determined erroneously by the Court of Appeals’ majority.”

Judge Allison Riggs issued the 2-1 decision in the McKinney case on Sept. 12, her last day as a member of the state Court of Appeals. Riggs has since joined the state Supreme Court through an appointment from Gov. Roy Cooper. She would not take part in the high court’s discussion or deliberation of the case.

The SAFE Child Act opened a two-year window for victims of alleged child sexual abuse to pursue lawsuits years after they normally would have been barred from going to court.

Riggs wrote an opinion reversing a three-judge trial court panel’s decision to declare the act unconstitutional.

The case dealt with three plaintiffs who were high school students and members of the East Gaston High School wrestling team in the mid-1990s and early 2000s. Each plaintiff alleged physical and sexual abuse from coach Gary Scott Goins.

The SAFE Child Act gave plaintiffs a two-year window, from January 2020 through December 2021, to revive any lawsuits that otherwise would be barred by the statute of limitations.

“The majority below dismissed Plaintiffs’ complaint on the rationale that the Sexual Assault Fast reporting and Enforcement Act (the “SAFE Child Act”) — which revived Plaintiffs’ civil claims for child sexual abuse after expiration of the statute of limitations — was facially unconstitutional as violating due process rights protected by the ‘Law of the Land’ clause in Article I, Section 19 of the North Carolina Constitution,” Riggs wrote.

“Defendant Gaston County Board of Education (the “Board”) — who, per the complaint in this case, failed to protect the children in its care from a sexually abusive employee over a period of years — asks us to elevate a purely procedural statute of limitations defense into an inviolable constitutional right to be free from any civil liability for whatever misdeeds would be provable at trial,” she added.

“But affording all statutes of limitation that exceptional status is nowhere required by the constitutional text, nor is it mandated by the precedents of our Supreme Court,” Riggs wrote. “Because adopting the Board’s position would require us to strike down as unconstitutional a duly enacted statute of our General Assembly and disregard the narrowly crafted legislation designed to address a stunningly pressing problem affecting vulnerable children across the state, we decline to convert an affirmative defense into a free pass for those who engaged in and covered up atrocious child sexual abuse. After careful review, we reverse the trial court and remand for further proceedings.”

Judge Fred Gore agreed with Riggs to reverse the lower court. He did not sign on to her written opinion. Meanwhile, Carpenter dissented.

“I will start by noting our common ground,” Carpenter wrote. “I completely agree: Sexual abuse of children is vile. I agree that striking down legislation as facially unconstitutional is strong medicine, only suitable for clear constitutional violations. I also agree that the prohibition of reviving time-barred claims is not a textual one; the text of the North Carolina Constitution lacks such a provision.”

“But that is where our common ground ends,” he added. “We are bound by the precedents of this Court and the North Carolina Supreme Court. Stare decisis is not limited to decisions this Court deems well-reasoned. Stare decisis is not limited to decisions that produce desirable results.”

“We lack the authority to overrule the North Carolina Supreme Court, and it appears that my colleagues and I disagree on this point,” Carpenter wrote. He argued that a precedent case known as Wilkes County v. Forester should have guided the Appeals Court’s decision.

“Regardless of whether Wilkes produces a desirable outcome or whether it is a bastion of textualism, Wilkes is an opinion from the highest court in our state, and it exceeds our power to overrule it,” according to the dissent. “In my view, the Majority is overruling several binding cases from this Court, and the Majority effectively overrules Wilkes, itself.”

The same three judges split on Sept. 12 in two other cases dealing with the SAFE Child Act. In Cohane v. The Home Missioners of America, Riggs and Gore agreed to revive a lawsuit against defendants including the Roman Catholic Diocese of Charlotte. In an unpublished opinion in Taylor v. Piney Grove Volunteer Fire and Rescue Department, Riggs and Gore reversed a trial court ruling and allowed the case to proceed. Carpenter dissented in both cases.

Editor’s note: This article has been updated to include material from the Gaston County school board’s brief.