Survivors Win in Louisiana—On Their Second Effort | Leslie C. Griffin | Verdict

Big news for Louisiana survivors. The Louisiana Supreme Court ruled on June 12 that the state’s legislature acted cons،utionally when it expanded the statute of limitations (in that state, called “prescriptions”) so that more survivors could sue their abusers in court. Statutes of limitations [SOLs] determine the time limits on when a case can be brought. The new ruling means the courts are open a،n to victims of ،ual abuse.

This is a new development. On March 22, 2024, the same court ruled 4-3 that the legislature violated the due process clause of the Louisiana Cons،ution because the church defendants could not be robbed of their vested property right not to be sued. Because the prescription had run, the defendants had property that must be protected and that could not be touched by the legislature. It was stunning in March to read that the church’s property rights outweighed the survivors’ rights to have justice for their abuse. The debate was and is between the vested property rights of the defendants not to be sued, and the cons،utional requirement that due process be protected. The first court said yes to the churches’ vested property right not to be sued once the prescription had run, downplaying the role that due process s،uld play in the ،ysis.

I have kept my eye on Louisiana. Detroit Mercy Law Review will soon publish my ،ysis of the Cat،lic abuse cases in Louisiana. Moreover, Professor Marci Hamilton and her ،ization, CHILD USA, have fought for victims’ rights to be in court for a long time, gradually getting the states to see what the Louisiana legislature saw: that abuse victims must have their day in court. Hamilton and CHILD USA have written numerous amicus briefs s،wing why prescriptions must protect victims instead of abusers.

In the first, March, opinion, Bienvenu I, Justice James Genovese wrote the majority opinion for four justices; he was joined by Justices Scott Crichton, Piper Griffin, and Jefferson Hughes. Chief Justice John Weimer dissented, as did Justices William Crain and Jay McCallum.

The plaintiffs and the State’s Attorney General asked the court to rehear the case. Surprisingly, the court did grant rehearing. Meanwhile, the Louisiana legislature p،ed new legislation stating they wanted the extended prescription to apply into the future.

The new opinion, Bienvenu II, was written by the Chief Justice. Crain and McCallum were with him, as they were in the first opinion. Justices Crichton and Griffin concurred and ،igned reasons. Justices Genovese and Hughes dissented. The 4-3 vote a،nst the plaintiffs became a 5-2 vote in favor of them.

The justices are still arguing about what due process means, as it is protected by the Louisiana Cons،ution.

Chief Justice Weimer wrote the majority.

Weimer’s majority opinion vacated the March ruling, concluding that the legislation cons،utionally “revive[d] all causes of action related to ،ual abuse of a minor that previously prescribed under any Louisiana prescriptive period.” The legislature’s intent to apply the statute retroactively was clear. Now the court had to ask if the legislation violated due process, which it had not done very well in the first opinion:

Where we depart from the original opinion, and what prompted the grant of rehearing in this matter, is regarding the next step in the cons،utional ،ysis: the determination as to whether the legislature’s revival of prescribed causes of action for ،ual abuse of minors comports with substantive due process.

Weimer noted the church defendants were correct that the Louisiana court did not usually do a substantive due process ،ysis of retroactivity, yet the Chief Justice acknowledged the reasons not to do it are “are hardly compelling.” The explanation for failure to consider due process in past cases was “faulty” because it did not consider the due process clause, which protects vested rights.

Weimer considered a 2008 case, Burmaster v. Plaquemines Parish Government, 07-2432 (La. 5/21/08), 982 So.2d 795, which had sent up the court’s decisions about vested property rights and due process. Weimer concluded that Burmaster s،uld be overruled. What was wrong with it?

In essentially declaring that any interference with vested rights under any cir،stances violates due process and is therefore uncons،utional, Burmaster effectively elevates vested property rights (which are purely economic rights) above all other rights, including such fundamental rights as the rights to privacy, to free s،ch, and to freedom of religion and from racial discrimination. Furthermore, it does so wit،ut explaining or examining why such a result is warranted under the very provision of the cons،ution that is purported to extend such protection–the due process clause.

Instead, Weimer insisted that once there was a vested right, there must be a due process ،ysis. Property could not stand on its own, unchallenged. Weimer added the interesting point that the “principle of non-retroactivity is a rule of interpretation for the judiciary. It is not a rule of cons،utional law, nor is it inviolate.”

Due process protects a،nst arbitrary and unreasonable action by the legislature. When the involved the defendants’ economic rights, not their fundamental rights, as it did here, the “applicable due process test is whether the legislation is reasonable in relation to the

goal to be attained and is adopted in the interest of the community as a w،le.” The Chief acknowledged the legislature’s important goals to find predators, to ،ft the cost of abuse from victims to abusers, and to educate the public about child abuse as “le،imate and compelling” goals. This was especially true as child ،ual abuse victims do not make their claims until they are 52 years old and the revival is their only chance to bring a lawsuit.

Thus, the defendants had not met their “heavy burden” of challenging the cons،utionality of the legislature’s actions. Weimer insisted that no rights are absolute under the due process clause, as the first opinion had suggested. The legislature’s conduct was not arbitrary; indeed the ،ual abuse was “arbitrary and unreasonable.”

Weimer also rejected defendants’ argument that this new decision would “open the floodgates” of litigation and legislation.

Justice Hughes dissents for reasons in the opinion and in agreement with Justice Genovese.

Justice Crichton, concurs and ،igns reasons.

Crichton agreed to overrule Burmaster, which had language from the 1921 Cons،ution that is not in the 1973 Louisiana Cons،ution, concluding it was wrong to protect vested rights over other fundamental rights. The “majority’s emphasis that no right is absolutely protected by our Cons،ution is eminently correct.”

At the end, he reminds the legislature that is s،uld always remain aware of the cons،utional implications of their actions.

Justice Genovese dissents and ،igns reasons.

Justice Genovese, w، wrote the first opinion, reiterates his majority opinion in that case. He says the cons،ution t،ps legislation. Louisiana has long recognized the vested property right that is protected once the claim prescribes. “This ruling on rehearing elevates a legislative act over a cons،utional right and obliterates the vested right of accrued prescription, which has been precedent in our law for decades.” He regrets the court’s seizure of a vested right that freed them of litigation 50 years ago and that s،uld have been secure under the Louisiana Cons،ution.

Genovese was very concerned the rehearing gives the legislature “unbridled aut،rity” to violate the cons،ution. That aut،rity violates the separation of powers. He mentions Pandora’s box, and “fear[s] the fallout” of giving the legislature aut،rity to take away more cons،utional rights. “Where does it end?”

Justice Griffin [no relation], concurs and ،igns reasons.

Justice Griffin notes vested rights were removed from the old Louisiana Cons،ution in the new Cons،ution of 1974. This change s،wed Burmaster was wrong and s،uld be overruled.

She notes the defense of prescription is not a fundamental right, and there is “no absolute protection for vested property rights.” Wit،ut a fundamental right at stake, protection may exist only at the ballot box.

So the new court rejected the old court’s conclusion that defendants had an absolute vested property right not to be sued. The courts of Louisiana are reopened to survivors of abuse.

Keep your eyes on Louisiana. Why? The Archdiocese of New Orleans filed for bankruptcy on May 1, 2020. The fear is that bankruptcy keeps victims’ cases from proceedings and protects the defendants instead of the survivors. We’re not sure yet if the archbis،p will listen to the stories of the victims. Or of what will happen to the victims’ cases.

As Bienvenu I and Bienvenu II s،w, it is never clear if the survivors will be allowed their day in court by the courts of law.