Balance of Power: Constitutional Limits on Retroactive Reviver Statutes for Child Sexual Abuse Claims

By Paul V. Esposito

Sometimes the good news never seems as good as the bad news is bad. The good news is that the rate of sexual assault and rape has dropped by 63% since 1993. The bad news is that another American is sexually assaulted every 73 seconds. About 63,000 children annually are sexually abused, 66% between ages 12-17.

It’s no wonder that legislatures nationwide have worked to solve the problem. Because victims often repress memories of abuse, some states have substantially extended the periods for bringing accrued claims. Other states have gone further, enacting laws reviving sexual abuse claims expired under then-existing limitations statutes. 

From a social policy perspective, it’s hard to argue against these reviver statutes. But are they constitutional exercises of legislative powers? Analyzing its state constitution, the Utah Supreme Court has said no. Mitchell v. Roberts, 2020 UT 34, 469 P.3d 901.

Facts

Terry Mitchell, age 16, witnessed a crime. That can be traumatic enough. According to Mitchell, it became much worse when in 1981 prosecuting attorney Richard Roberts sexually assaulted her. Thirty-six years later, Mitchell sued Roberts in federal court.

Roberts moved to dismiss Mitchell’s case as barred by the statute of limitations. Mitchell responded that the Utah legislature amended the statute to revive her time-barred claims. Under the reviver, otherwise-barred claims may be brought within the later of 35 years from the victim’s 18th birthday or three years after the amendment’s effective date. Unsure of Utah’s approach to the retroactive revival of barred claims, the district court certified the question to the Utah Supreme Court.

Analysis

Reaching an answer required the Supreme Court to analyze the due process limitations on legislative power to retroactively revive an untimely claim. The Court considered Utah cases, the original understanding of state constitutional due process, and the limits on legislative policy judgments.

The Court has held for over a century that the legislature may not enact laws retroactively negating a defendant’s vested rights. The issue first arose when the legislature enacted a statute effectively overriding a judicial decision that children of a polygamous marriage may not inherit. The Court invalidated the statute as violating the constitutional separation-of-powers. The legislature was wrongly attempting to retroactively take away a party’s vested rights—and make a court enforce it.

The Court also applied its vested-rights analysis in statute of limitations cases. In the first case, a claimant argued that by virtue of a statutory amendment, she had an additional two years to file suit on a note. The Court disagreed, holding that once the original limitation ran, defendant acquired a vested right the legislature lacked power to disturb. Similar decisions in other cases followed. The Mitchell Court ruled that those decisions were entitled to respect under the doctrine of stare decisis.

The Court found that the vested-rights limitation was firmly grounded in the original understanding of the Utah constitution. In the late 19th century, “due process” was understood as prohibiting legislatures from acting as courts. Because a legislature may not retroactively negate vested rights—a term including a limitations defense—reviver statutes amounted to “judicial decrees in disguise.” Delegates ratifying the constitution viewed the tampering with vested rights as beyond the legislature’s power—a violation of state constitutional due process. So a vested right in a limitations defense was protected by the constitution itself.

The Court drew further support for its analysis from commentators and from rulings of the majority of jurisdictions considering the issue.

The Mitchell Court was very sympathetic with legislative efforts to provide justice for the abused. But for the Court, its first duty was to the constitution and the balance of power it created.

Learning Point:

The Mitchell decision is significant, not just for its holding but for its analysis.  The Court correctly focused on constitutional law as written and originally intended, not on what justices would prefer today as a matter of social policy. In doing so, the Court properly limited the roles of the legislature and the judiciary. And it protected defendants from accusations and huge financial exposures arising out of acts allegedly occurring sometimes decades earlier.

Courts in other states have also rendered decisions barring the retroactive divestment of limitations defenses.  But the tragedy of child sexual abuse will challenge some courts’ willingness to abide by those rulings. Not all judges will see things as the Utah justices did.  It may come down to individual judges’ philosophies on interpreting constitutional law.

Given the stakes involved, state laws should be closely analyzed whenever a reviver-statute issue arises. Those laws might be favorable to the defense. Mitchell will provide a useful template for the analysis.