Stein’s lawyers side with General Assembly in SAFE Child Act dispute

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

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  • Lawyers from Attorney General Josh Stein's state Justice Department are backing the General Assembly's 2019 decision to approve the SAFE Child Act. The act created a two-year window to revive child sexual abuse lawsuits otherwise barred by the statute of limitations.
  • The state Supreme Court will consider McKinney v. Goins, a case challenging the SAFE Child Act's constitutionality. The Gaston County school board, as defendants in a child sexual abuse lawsuit, have asked the high court to reverse a split state Appeals Court decision.
  • A brief Thursday from state Solicitor General Ryan Park argued that “The General Assembly did not violate our state constitution when it unanimously enacted legislation to provide victims of child sexual abuse a short window during which they could sue their abusers.”

Attorney General Josh Stein’s state Justice Department backs the General Assembly in a legal dispute targeting the SAFE Child Act. The state Supreme Court will decide whether the act violated the constitution by reopening a window to file child sexual abuse lawsuits.

Solicitor General Ryan Park of the Justice Department filed a brief Thursday in McKinney v. Goins. In that case, the Gaston County school board is asking the state’s highest court to overturn a ruling from the state Court of Appeals.

Appellate judges upheld the SAFE Child Act’s two-year “revival window” for child sex abuse lawsuits that were otherwise barred by the statute of limitations. Plaintiffs had sued the Gaston school board under the act’s provisions.

“In 2019, every member of the General Assembly voted to pass the SAFE Child Act, a landmark piece of legislation to help protect our state’s children from sexual abuse,” Park and his colleagues wrote. “An important part of this law temporarily allowed victims of child sexual abuse to file civil lawsuits against their abusers and the institutions that enabled their abuse, even if the statute of limitations had lapsed.”

“By opening a two-year window to file otherwise time-barred claims, the General Assembly sought to give survivors a meaningful opportunity to seek justice, to ensure that abusers and their enablers paid for some of the moral and financial costs of their abuse, and to help identify abusers to prevent them from harming more children,” the Justice Department brief continued.

“The Court of Appeals correctly held that the revival window is constitutional,” Park argued. “Nothing in the text of our state constitution bars the General Assembly from reviving civil tort claims. Constitutional history likewise confirms that our constitution’s framers intended for the legislature to have the authority to pass retroactive statutes, subject only to exceptions that do not apply here. And no decision of this Court is to the contrary.”

“Although this Court has rightly held that the legislature may not retroactively interfere with vested property rights, this principle does not extend to tort claims,” Justice Department lawyers wrote. “Unlike a property owner who may act in reliance on settled rights to title and ownership, a tortfeasor cannot form a vested right to engage in or facilitate child sexual abuse.”

The Justice Department wrote that the Gaston school board’s arguments “profoundly misunderstand the state constitution.”

“In the Board’s view, once a limitations period runs, the General Assembly may not, under any circumstances, revive time-lapsed civil claims. The Board would therefore place its alleged right to be free from child- sexual-abuse claims at the very apex of constitutional rights — over even the right to be free from discrimination based on race or religion. To state the argument is to refute it,” Park argued.

“The General Assembly did not violate our state constitution when it unanimously enacted legislation to provide victims of child sexual abuse a short window during which they could sue their abusers,” the Justice Department brief added.

The North Carolina School Boards Association, North Carolina Association of Defense Attorneys, American Tort Reform Association, American Property Casualty Insurance Association, and Kernersville Family YMCA all filed briefs in November supporting the Gaston school board’s case.

The Gaston board filed its own legal arguments on Nov. 20. “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.

Judge Allison Riggs wrote the opinion reversing a three-judge trial court panel. The Appeals Court issued the 2-1 decision in the McKinney case on Sept. 12, Riggs’ last day as a member of the state’s second-highest court. Riggs has since joined the state Supreme Court through an appointment from Gov. Roy Cooper. She will not take part in the high court’s discussion or deliberation of the case.

McKinney v. Goins 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, Judge Jeff 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.