Here’s how to end the stalemate over the civil justice window for abuse survivors | Opinion

By Patrick Beaty

Last month, the Pennsylvania House of Representatives passed a proposed constitutional amendment to allow adult survivors of child sexual abuse a two-year window in which to sue their abusers regardless of any statute of limitations.

The state Senate had already passed the constitutional change in January. Both chambers of the General Assembly are considering the amendment for the second time in consecutive sessions, having passed it previously in the 2021-22 session.

But this time, even though they both passed the same proposed amendment, they did not pass the same bill containing that amendment which is a requirement before a bill can become law in Pennsylvania. 

The Senate and House appear to be at an impasse, with Republicans who control the Senate insisting on their version which also includes two other constitutional changes opposed by most Democrats. One measure would require voters to prove their identity every time they vote and the other would give lawmakers veto power over executive agency regulations.

Both chambers have now adjourned for six weeks of hearings on Gov. Josh Shapiro’s first budget proposal. Meanwhile, abuse survivors are left once again waiting and wondering if they will ever get their fair chance at justice. 

It shouldn’t have to be this hard when polls show the issue has strong public support and lawmakers in both parties keep voting for it by large margins.

But what if it really isn’t as complicated as it appears?

Maybe we’re just looking at it the wrong way and misreading what our state Constitution requires in order to amend that document. And what it does not require.

Article XI contains all the rules, and there are not many when it comes to the role of the General Assembly. Amendments may be proposed in the Senate or House and if a proposed amendment is agreed to by a majority in each chamber in two consecutive sessions, the amendment goes on the ballot for voter approval. That’s about it.

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The Constitution does not require the Senate and House to pass an identical bill as they do when enacting laws. In fact, the Constitution does not even require that they pass the amendment in the form of a bill.

As far back as 1900, the Pennsylvania Supreme Court stated that while the Legislature has a required role in the amendment process, a constitutional amendment is “not a law, an order, a bill or a resolution.”

Because it is not a law, it does not have to be signed by the governor. The General Assembly uses the term “joint resolution” and they give every joint resolution a bill number. But those labels do not change the fact that a constitutional amendment is neither of those.  

As one court has said, “it is not a legislative act at all, but a separate and specific power granted to the General Assembly.” The Legislature can call it whatever they like – even “a mystery wrapped in an enigma,’ a title which the court thought “might be more forthright in many instances.”

All that matters is that a majority of the members elected in both chambers agree to the same amendment twice in consecutive sessions. Those requirements have now been met for the civil justice window. 

And because a constitutional amendment is not a law or even a bill, the fact that the Senate Republican majority also wanted to make other changes at the same time does not negate their approval of the civil justice amendment. A majority of the House has not agreed to those other changes, so they cannot be submitted to the voters.

The amendment that both chambers did agree to is what counts.

Democrats do not have to sacrifice their own core beliefs in order to achieve justice for survivors of abuse. Nor do they need to wait and hope that Republican senators will cave under relentless pressure from victim advocates.

There is another way out of this morass. And again, Article XI points the way forward. When a majority in both chambers has passed the same amendment in consecutive sessions, the proposed amendment “shall be submitted” to the voters.

Shapiro should tell his Secretary of the Commonwealth to put the civil justice window on the ballot this November. 

Patrick Beaty served more than 20 years in Pennsylvania state government in both the legislative and executive branches, including as legislative counsel to Gov. Robert Casey. His work appears frequently on the Capital-Star’s Commentary Page.