Montgomery County judge rules Maryland’s Child Victims Act unconstitutional

A Montgomery County judge deemed Maryland’s Child Victims Act unconstitutional Monday in a child sex abuse lawsuit against the Archdiocese of Washington, prompting a swift promise of yet another appeal related to the landmark law.

Circuit Judge Jeannie E. Cho’s ruling diverged from those of her colleagues in Harford and Prince George’s counties, who found the law constitutional. Her finding also added a new dimension to the unprecedented appellate territory for the 2023 state law, which is being examined in several appeals from state courts and a question from a federal judge to the Maryland Supreme Court.

Enacted last April, the law erased a previous time limit for people sexually abused as children to sue perpetrators and any institutions that enabled their torment. A flood of lawsuits followed when the law took effect Oct. 1, targeting the likes of churches, schools, and correctional institutions for abuse allegedly committed by priests, teachers and guards.

Monday’s ruling involved a case that targeted the Archdiocese of Washington. It alleges a man was repeatedly sexually abused when he was a boy by priests in the diocese, which is headquartered in Maryland and has parishes in five counties: Montgomery, Calvert, Charles, Prince George’s and St. Mary’s.

Robert K. Jenner, an attorney for the man, said the legal team was “disappointed with the trial court’s decision and believe it does not reflect the merits of the case.”

“Our team will appeal the ruling to the Maryland Supreme Court, where we are confident that a thorough review will lead to a favorable outcome for childhood survivors of sexual assault,” Jenner wrote in an email. “We remain committed to pursuing justice on behalf of our clients and ensuring our arguments are fully heard and considered at the highest level.

Lawyers for the archdiocese asked a judge to dismiss the lawsuit, arguing the law is unconstitutional.

They contended that when the Maryland General Assembly extended in 2017 the time period for people to file sex abuse lawsuits to a survivor’s 38th birthday, lawmakers gave defendants immunity from civil claims after a victim turned 38. The legislature doesn’t have the power to repeal such immunity, which the defense attorneys said amounts to a “vested right.”

Finding that the Child Victims Act violates Maryland’s Constitution and Declaration of Rights, Cho agreed with the archdiocese. She ordered the lawsuit dismissed.

The Archdiocese of Washington celebrated Cho’s ruling in a statement.

“The court recognized the important legislative balance struck by the Maryland legislature in 2017 and properly rejected the law passed last year that attempts to retroactively revive long-expired tort claims,” the statement said. “The court’s ruling respects the fundamental principles of due process and other important rights that are enshrined in the Maryland Constitution.”

Much of the argument around the Child Victims Act comes down to whether its predecessor, the 2017 law, was a statute of limitations, or a statute of repose. Defendants’ attorneys say it was a statute of repose; plaintiffs’ lawyers say it was a statute of limitations.

According to some legal scholars, the only statute of repose in Maryland is in the construction industry. It protects the likes of builders and architects from liability related to injuries sustained in their structures after a certain amount of time passes from when the buildings open. The clock for lawsuits starts ticking when the building is deemed operational, rather than when a person is hurt.

With a statute of limitations, on the other hand, the law starts counting the period a person has to file a lawsuit from the time they sustain an injury.

Kathleen Hoke, a law professor at the University of Maryland Francis King Carey School of Law, said she was not surprised by Cho’s ruling.

“She said that the language of the statute makes clear that the legislature was creating a statute of repose — No. 1. Then she said the legislative history supports that — No. 2,” Hoke said of the ruling.

But in finding that the 2017 law created a “vested right” that the legislature could not change, Hoke said, the judge overlooked an important example of when the General Assembly did just that: In the 1990s, lawmakers allowed people to file retroactive lawsuits against builders who created structures with asbestos.

“To me, that demonstrates that in Maryland, our legislature, when they adopt a statute of repose, they don’t mean for it to vest constitutionally protected rights that can’t change. Because they did it,” Hoke said.

Maryland lawmakers last year anticipated a constitutional challenge to the Child Victims Act, including in the law a provision allowing for a mid-lawsuit appeal.

An appeal from the Washington diocese of a judge’s ruling in Prince George’s that deemed the law constitutional is pending before the intermediate Appellate Court of Maryland. A Harford judge also ruled the law constitutional in a child sex abuse lawsuit against the county’s Board of Education.

About two weeks ago, U.S. District Judge James K. Bredar, who is presiding over a sex abuse lawsuit in federal court, signaled his intention to send a question about the law’s constitutionality to the Supreme Court of Maryland.

Teresa Lancaster, an Annapolis attorney who survived abuse in the Catholic Church as a child and now advocates for other victims, called Cho’s ruling “very disturbing.”

“It greatly angers me that they would say it was unconstitutional,” Lancaster said. “If they would read the act and see that it’s all about the rights of children who were raped, I don’t see how that could be unconstitutional — getting justice for children who were raped.”

At the same time, Lancaster and other survivors are keeping things in perspective.

“We knew that it was going to be a fight,” she said. “But we’re confident that we’re going to get it before the Supreme Court and we’re confident that we’re going to win.”