Case 1:18-cv-00861-JPB Document 24 Filed 06/01 ... - Law.com

1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Alfred Crea,

Plaintiff,

v.

Father John Krzyzanski,

Defendant.

Case No. 1:18-cv-00861-SCJ

THE GEORGIA ATTORNEY GENERAL’S RESPONSE TO THE

COURT’S MARCH 19, 2018 ORDER REQUESTING HIS

POSITION ON THE CONSTITUTIONALITY OF O.C.G.A. § 9-3-

33.1

Plaintiff Alfred Crea filed this action in reliance on O.C.G.A. § 9-3-

33.1(d), a “revival” provision that permits plaintiffs to bring certain civil

actions predicated on acts of childhood sexual abuse that were previously

time barred. See ECF No. 3-1 at 2-3, 5. The defendant, Fr. John Krzyzanski,

has challenged that provision on constitutional grounds. Id. at 2-3. On

March 19, 2018, this Court requested the Attorney General to “submit his

position in reference to” the constitutionality of O.C.G.A. § 9-3-33.1. ECF No.

11. The Attorney General submits this brief in response to the Court’s order.

In short: O.C.G.A. § 9-3-33.1 is constitutional. The revival provision

contained in subsection (d) of O.C.G.A § 9-3-33.1 does not violate the Georgia

Constitution’s prohibition against retroactive laws; as the Georgia Supreme

Court has explained in upholding other similar provisions that revived time-

barred claims, a statute of limitations is remedial in nature, and the running

of a statute of limitations with respect to a potential claim against a potential

Case 1:18-cv-00861-JPB Document 24 Filed 06/01/18 of 25

2

defendant ordinarily does not create for that defendant a vested right to not

be sued. The revival provision also does not violate due process or equal

protection under the state or federal constitutions for several reasons,

including because subsection (d), along with § 9-3-33.1’s other provisions,

furthers the legitimate governmental purpose of providing sufficient avenues

for victims of childhood sexual abuse to seek relief for their injuries.

STATUTORY BACKGROUND

O.C.G.A. § 9-3-33.1 sets the limitations period for “any civil action for

recovery of damages suffered as a result of childhood sexual abuse.” O.C.G.A.

§ 9-3-33.1(a)(2) & (b)(2)(A). The statute defines “childhood sexual abuse” as

“any act committed by the defendant against the plaintiff which occurred

when the plaintiff was under 18 years of age and which would be in violation

of” any one of several criminal code provisions. Id. § 9-3-33.1(a)(1) & (b)(1).1

1 Nothing in the statute suggests that Crea’s various tort claims based on

childhood sexual abuse may not be brought in reliance on O.C.G.A. § 9-3-

33.1. Contra ECF No. 3-1 at 5-9. O.C.G.A. § 9-3-33.1 fixes the limitations

period for “any civil action” predicated on an act of childhood sexual abuse.

O.C.G.A. § 9-3-33.1(a)(2) & (b)(2)(A) (emphasis added). The text of the

statute does not distinguish between types of civil actions or otherwise

prohibit any particular category of civil actions. See id. The statute does

enumerate the specific acts of criminal conduct that can serve as factual

predicates for any civil action brought under § 9-3-33.1, but not the available

kinds of civil claims. See, e.g., Lickteig v. Kolar, 782 N.W.2d 810, 814-15

(Minn. 2010) (explaining that analogous sexual abuse-related statute of

limitation “neither explicitly nor implicitly create[d] a cause of action,” but

instead “simply provide[d] additional time for plaintiffs to bring tort claims

that involve[d] sexual abuse”).


3

Under the prior version of § 9-3-33.1, a plaintiff could commence an

action on or before the plaintiff’s 23rd birthday, regardless of the date of the

alleged abuse. See id. § 9-3-33.1 (2007). In 2015, the General Assembly

amended § 9-3-33.1. As amended, the statute still permits a plaintiff to

commence an action predicated on childhood sexual abuse “on or before the

date the plaintiff attains the age of 23 years,” regardless of the date of abuse.

Id. § 9-3-33.1(a)(2) & (b)(2)(A)(i). But the amended statute, unlike the prior

version, provides two avenues for plaintiffs to bring such actions after their

23rd birthday.

First, for acts of abuse “committed on or after July 1, 2015,” the statute

provides a “discovery” rule: Plaintiffs may file an action predicated on

childhood sexual abuse “[w]ithin two years from the date that the plaintiff

knew or had reason to know of such abuse and that such abuse resulted in

injury to the plaintiff.” Id. § 9-3-33.1(b)(2)(A)(ii) (emphasis added). In other

words, if a plaintiff discovers after turning 23 years old that he or she was

abused as a child, the plaintiff has two years to file an action predicated on

that abuse. If a plaintiff relies on this discovery rule, the statute requires the

court to “determine from admissible evidence in a pretrial finding when the

discovery of the alleged childhood sexual abuse occurred.” Id. § 9-3-

33.1(b)(2)(B). That date of discovery must be “established by competent

medical or psychological evidence.” Id. § 9-3-33.1(b)(2)(A)(ii).

Second, for acts of abuse committed before July 1, 2015, i.e., before the

statute was amended, the statute provides a “revival” provision: Plaintiffs


4

“who were time barred from filing a civil action for injuries resulting from

childhood sexual abuse due to the expiration of the statute of limitations in

effect on June 30, 2015, [may] file such actions against” the alleged abuser

“before July 1, 2017, thereby reviving those civil actions.” Id. § 9-3-33.1(d)(1).

Under this revival provision, plaintiffs who could not bring claims predicated

on childhood sexual abuse that occurred before the statute was amended

because their 23rd birthday had passed (i.e., whose claims were then time

barred) were given a two-year window—from July 1, 2015, to June 30, 2017—

to bring those once-time-barred claims. The statute makes clear that the

revival provision will “be repealed effective July 1, 2017.” Id. § 9-3-33.1(d)(3).

This revival provision and its limitations period apply to pre-July 1,

2015 acts of abuse regardless of the date of the plaintiff’s discovery of the

childhood sexual abuse at issue: As long as a plaintiff brings a claim under

subsection (d) before July 1, 2017, the claim is not time-barred, even if the

abuse was discovered years before. Id. § 9-3-33.1(d)(1) (tying limitations

period to a fixed date rather than plaintiff’s discovery of abuse). On the other

hand, if the plaintiff brings the claim on or after July 1, 2017, it is time-

barred even if the plaintiff has not yet discovered his abuse as of that date.

Id.


5

ARGUMENT

I. The revival provision contained in O.C.G.A. § 9-3-33.1(d) does not

violate the Georgia Constitution’s prohibition against retroactive

laws because the revival provision neither attaches new

liabilities to past conduct nor impairs any vested rights.

The Georgia Constitution provides that no “retroactive law … shall be

passed.” Ga. Const. art. I, § I, para. X. This does not mean that a law is

invalid “simply because it relates to antecedent facts.” Dekalb Cty. v. State,

270 Ga. 776, 778 (1999) (citations omitted). Rather, a law violates the

prohibition against retroactive laws only if it “takes away or impairs vested

rights acquired under existing laws or creates a new obligation, imposes a

new duty, or attaches a new liability in respect to transactions or

considerations already past.” Id. (citations omitted); cf. S. States-Bartow

Cty., Inc. v. Riverwood Farm Homeowners Ass’n, 300 Ga. 609, 612 (2017)

(using same standard). The Georgia Supreme Court has deemed laws

unconstitutional under this provision when, for example, the law attempted

to impose liability on a completed transaction where no obligation to pay had

existed previously, Ross v. Lettice, 134 Ga. 866, 867-68 (1910), or where the

new law would have made a grantee’s title to land subject to divestment,

even though her property interest had already vested, Todd v. Morgan, 215

Ga. 220, 221-22 (1959).

By contrast, altering procedures or the remedies related to past conduct

or transactions generally does not violate the constitutional bar against

retroactive laws. See, e.g., Henderson v. Dep’t of Transp., 267 Ga. 90, 91

(1996) (“The constitutional prohibition against retroactivity, however, does


6

not apply to procedural laws.”); Pritchard v. Savannah St. & Rural Resort

R.R. Co., 87 Ga. 294, 297 (1891) (“[R]etroactive laws, which do not injuriously

affect any right of the citizen, that is to say, laws curing defects in the

remedy, or confirming rights already existing, or adding to the means of

securing and enforcing the same, may be passed.”). That is because “there

are no vested rights in any course of procedure” in and of itself. Mason v.

Home Depot U.S.A., Inc., 283 Ga. 271, 278 (2008) (citation omitted).

Procedural or remedial laws thus typically do not implicate the constitutional

prohibition because they generally do not impair vested rights or impose new

obligations, duties, or liabilities after the fact. See Dekalb Cty., 270 Ga. at

778 (“[A] statute that is procedural or remedial in nature may operate

retrospectively so long as it does not impair vested rights.”).

To that end, the Georgia Supreme Court has already held that statutes

that revive time-barred claims do not—merely for that reason—violate the

prohibition against retroactive laws. In Canton Textile Mills, Inc. v. Lathem,

the statute at issue imposed a longer limitations period on certain workers’

compensation claims, effectively reviving some claims that had been time

barred. 253 Ga. 102, 103-05 (1984). The court found no constitutional

violation. Id. at 105. The court acknowledged that it previously had held

such laws to be unconstitutional, but it “expressly overrule[d]” that prior

precedent. Id. In “adopt[ing] the reasoning” of two U.S. Supreme Court

decisions, the court emphasized the “remedial” nature of statutes of

limitation. Id. 104-05 (citing Chase Sec. Corp. v. Donaldson, 325 U.S. 304


7

(1945), and Campbell v. Holt, 115 U.S. 620 (1885)). The court agreed that, “in

any class of actions in which a party does not become invested with title to

property by the statute of limitations, the legislature may by repealing the

statute, even after the right of action is barred, restore the remedy and divest

the other party of the statutory bar.” Id. at 104 (discussing Campbell). The

court thus held that the General Assembly had done just that in enacting the

workers’ compensation revival statute at issue, and that there was no

constitutional violation as a result. Id. at 105.

The Georgia Supreme Court has since reaffirmed Canton Textile’s

holding that revival statutes pose no constitutional difficulty. In Vaughn v.

Vulcan Materials Co., the court explained: “There is no vested right in a

statute of limitation and a ‘legislature may revive a … claim which would

have been barred by a previous limitation period by enacting a new statute of

limitation, without violating our constitutional prohibition against

retroactive laws.’” 266 Ga. 163, 164 (1996) (alteration in original) (quoting

Canton Textile, 253 Ga. at 105).

It follows that the revival provision contained in § 9-3-33.1(d), which

revives for two years previously time-barred claims predicated on childhood

sexual abuse, is not an unconstitutional “retroactive law” under Georgia law.

Section 9-3-33.1(d) does not “attach[] a new liability” to acts of childhood

sexual abuse because it does not make once-permitted conduct unlawful after

the fact. Dekalb Cty., 270 Ga. at 778; cf. Ross, 134 Ga. at 867-68. Nor does

the revival provision “impair[]” any “vested rights.” Dekalb Cty., 270 Ga. at


8

778. Unlike a situation where the running of a limitations period might itself

cause title or a determinate property interest to vest in a grantee, such as in

the real-property context, see Canton Textile, 253 Ga. at 104; Todd, 215 Ga.

at 221-23, the running of a limitations period ordinarily just cuts off the time

in which a plaintiff may sue for relief; it does not also “vest” some substantive

“right” of the defendant to not be sued for the claims at issue. Reviving such

potential claims therefore does not impair any vested rights.

It is true that the Georgia Supreme Court has not always defined

“vested rights,” as a concept, “consistently and with precision.” Deal v.

Coleman, 294 Ga. 170, 176 & n.14 (2013) (“The definition of ‘vested rights’ is

a bit hazy in American law generally, not just in Georgia.”). And the court

has contemplated that certain kinds of defenses might be “vested” and thus

be protected by the constitutional retroactive-law bar. See, e.g., Payne v.

Jones, 211 Ga. 322, 325-26 (1955) (defense to enforcement of contract for sale

of land was vested where prior law made certain contracts void as against

public policy). But whatever might otherwise be counted among the

collection of “vested rights” that enjoy constitutional protection under the

retroactive-law provision, Georgia law is clear that a statute-of-limitations

defense, like other procedural defenses, is generally not one such right.

Vaughn, 266 Ga. at 164; Canton Textile, 253 Ga. at 105; see also Ballew v.

Riggs, 244 Ga. 232, 234 (1979) (holding that application of new law to a

pending action, which deprived defendant of a previously existing


9

insufficient-service-of-process defense, did not violate retroactive-law

prohibition).

Canton Textile is not limited to the narrow context of workers’

compensation cases. Contra ECF No. 3-1 at 9-10 & n.4. Read in context, the

court’s comment in that case that the decision was “consistent with [the

court’s] general policy of construing the provisions of the Workers’

Compensation Act liberally in order to afford the injured claimant a remedy”

is best read as commenting on the court’s statutory construction, not its

application of the constitutional retroactive-laws prohibition. Canton Textile,

253 Ga. at 105. The court was explaining why its conclusion that the statute

at issue in fact revived time-barred claims did not conflict with its earlier

decision in Hart v. Owens-Illinois, Inc., 250 Ga. 397 (1982). See Canton

Textile, 253 Ga. at 105. In Hart, the court had interpreted a statute as not

requiring revival of time-barred claims. 250 Ga. at 398-99. That

interpretation in Hart was based in part on a rule of construction that

statutes should not be given retrospective application “unless their language

imperatively requires it.” Id. at 398 (citations omitted). The Canton Textile

court thus distinguished Hart by pointing out that a different, more liberal

rule of statutory construction applied to the statute of limitations at issue in

Canton Textile. Canton Textile, 253 Ga. at 105. But that discussion is not

relevant to this case, because, as the parties agree, § 9-3-33.1(d) expressly

applies to acts of childhood sexual abuse occurring before the statute was

amended on July 1, 2015. See ECF No. 3-1 at 4 & n.2; ECF No. 9-1 at 3-4.


10

This case thus reduces to questions of constitutional construction and

application, not statutory interpretation.

And the court in Canton Textile in no way limited its constitutional

analysis to the factual context of that decision. Indeed, in upholding the

legislature’s revival of certain workers’ compensation claims against

constitutional challenge, the Georgia Supreme Court relied on the “remedial

nature” of statutes of limitations generally, not on anything specific to the

workers’ compensation statute or the workers’ compensation context. Canton

Textile, 253 Ga. at 104-05. And Vaughn later confirmed Canton Textile’s

broader reach by holding that the legislature may revive “claim[s]” generally

without violating the retroactive-law prohibition. Vaughn, 266 Ga. at 164

(quoting Canton Textile’s holding but explicitly omitting the phrase “workers’

compensation”).

Moreover, Canton Textile and Vaughn fall neatly in line with numerous

other Georgia decisions outside the workers’ compensation context holding

that procedural laws, including statutes of limitation, are generally beyond

the reach of the retroactive-law prohibition. It is well established that

“[s]tatutes of limitation look only to the remedy and so are procedural,” and

that “[o]rdinarily, there is no constitutional impediment to giving retroactive

effect to statutes that govern only procedure of the courts.” Hunter v.

Johnson, 259 Ga. 21, 22 (1989) (medical malpractice case).2 That is true even

2 In federal court, state law statutes of limitation are treated as “substantive”

rather than “procedural” for purposes of the Erie doctrine. Jinks v.

Richland Cty., 538 U.S. 456, 465 (2003). But whether a law is considered


11

when a party is disadvantaged by retroactive application of a change to a

procedural statute. See Mason, 283 Ga. at 278 (citing Pritchard, 87 Ga. at

299) (personal-injury case). In Georgia, the constitutionality of applying new

statutes of limitation to past conduct does not turn on whether a party is

disadvantaged or what subject matter the case involves. See, e.g., Smith v.

Cobb Cty.-Kennestone Hosp. Auth., 262 Ga. 566, 572 (1992) (no constitutional

violation where new statute of limitation applied to plaintiff’s detriment in

medical malpractice context); see also U.S. Fid. & Guar. Co. v. Toombs Cty.,

187 Ga. 544, 549-50 (1939) (same, in context of contract claims).3

Rather than announcing an exception, Canton Textile provides the rule,

and that rule controls here. Section 9-3-33.1’s revival provision does not

violate the constitutional prohibition against retroactive laws.

substantive or procedural “in a particular context is largely determined by

the purposes for which the dichotomy is drawn.” Id. (citation omitted). For

purposes of Georgia’s constitutional bar on retroactive laws, Georgia courts

have generally held that statutes of limitation are procedural, not

substantive. In Georgia, “substantive law creates rights, duties, and

obligations while a procedural law prescribes the methods of enforcing those

rights, duties, and obligations.” Mason, 283 Ga. at 278 (citation omitted).

As explained above, retroactive application of procedural laws generally

does not implicate the constitutional bar. See Coleman, 294 Ga. at 177-78,

181.

3 Notably, Stogner v. California, 539 U.S. 607 (2003), is inapposite to an

analysis of § 9-3-33.1. Contra ECF No. 3-1 at 12-13. That case concerned an

ex post facto challenge, and the ex post facto provisions under the federal

and Georgia Constitutions apply only to criminal laws, not civil ones. See

League v. Texas, 184 U.S. 156, 161 (1902); Bailey v. State, 210 Ga. 52, 54

(1953). Section 9-3-33.1 is a civil statute.


12

II. The revival provision contained in O.C.G.A. § 9-3-33.1(d) does not

violate due process because it is rationally related to the

legitimate governmental objective of providing additional

avenues for victims of childhood sexual abuse to seek relief.

Defendant also contends that § 9-3-33.1’s revival provision violates due

process under the federal and Georgia Constitutions. Those arguments fail

as well.

A. The U.S. Supreme Court has twice held that revival statutes

generally do not violate federal due process. See Chase Sec. Corp. v.

Donaldson, 325 U.S. 304, 315-16 (1945); Campbell v. Holt, 115 U.S. 620, 628-

29 (1885). In so doing, the Court has noted that “where lapse of time has not

invested a party with title to real or personal property, a state legislature …

may repeal or extend a statute of limitations, even after right of action is

barred thereby, restore to the plaintiff his remedy, and divest the defendant

of the statutory bar.” Chase, 325 U.S. at 311-12 (reaffirming Campbell’s

holding). The Court left open the possibility that, in limited circumstances, a

revival statute might pose a due process problem. Id. at 315-16. Those

circumstances could include, for example, where: (a) the running of the prior

limitations period does “give[] the defendant a vested property right” (as in

the case of adverse possession); (b) the prior statute “creates both a cause of

action and a limitation period within which the action must be brought”; or

(c) “hardship or oppressive effects … follow from a just and reasonable

reliance upon the [prior] limitations statute.” K.E. v. Hoffman, 452 N.W.2d

509, 513 (Minn. Ct. App. 1990) (discussing Chase and rejecting due process

challenge to childhood-sexual-abuse revival statute similar to Georgia’s).


13

But none of those circumstances exists here. Section § 9-3-33.1 arises

primarily in the context of personal-injury claims, not property cases, so the

running of the limitations period under the pre-2015 version of the statute

would not have given a defendant a vested property right. The pre-2015

statute also did not create a standalone cause of action to which a limitation

provision was tethered; it instead simply provided the limitations period for

“[a]ny civil action” predicated on an act of childhood sexual abuse. O.C.G.A. §

9-3-33.1(b) (2007); see also Chase, 325 U.S. at 312 n.8. And unlike in, for

example, a contract case involving certain business transactions, a

hypothetical defendant in such an action could not plausibly contend that he

engaged in the alleged conduct in “just and reasonable reliance” on the pre-

2015 statute’s limitations period. Hoffman, 452 N.W.2d at 513 (“The alleged

sexual abuse … would have to have been undertaken under the assumption

the limitations period would continue in effect.”); see Chase, 325 U.S. at 316

(“This is not a case where appellant’s conduct would have been different if the

present rule had been known and the change foreseen.”). Thus § 9-3-33.1’s

revival provision falls squarely within the holdings of Chase and Campbell.

The General Assembly’s enactment of O.C.G.A. § 9-3-33.1(d) may have

worked a “change of policy to [a defendant’s] disadvantage,” or a defendant’s

“hopes” that he might avail himself of the former limitations provision might

well “have been disappointed,” but that does not mean the amended statute

violates due process. Chase, 325 U.S. at 316.


14

B. Nor does O.C.G.A. § 9-3-33.1(d) violate due process under the

Georgia Constitution. As an initial matter, when a specific constitutional

provision provides an “explicit textual source of constitutional protection,”

that provision—“not the more generalized notion of ‘substantive due

process’”—should guide the analysis. Graham v. Connor, 490 U.S. 386, 395

(1989). Thus, any due-process arguments attacking the revival provision on

the ground that it imposes a new limitations period on claims predicated on

alleged past acts of abuse that were previously governed by a different

limitations period, see ECF No. 19 at 1-2,4 should be analyzed under the

Georgia Constitution’s specific provision that protects against certain

retroactive laws—not under a more generalized substantive due process

rubric. And as discussed above, the revival provision at issue here does not

4 Defendant does not explicitly state that he raises a substantive due process

challenge (as opposed to a procedural due process challenge), but that is the

essence of his claim. See ECF No. 3-1 at 12-13. For example, he contends

that he has a “substantive” right to such a defense and that the State may

not legislatively deprive him of that right, see id.; ECF No. 19 at 3, 8-9,

regardless of any procedural safeguards the State provides. Compare

Hoefling v. City of Miami, 811 F.3d 1271, 1282 (11th Cir. 2016) (“The

substantive component of the Due Process Clause protects individual liberty

against certain government actions regardless of the fairness of the

procedures used to implement them.” (citation omitted)), with Arrington v.

Helms, 438 F.3d 1336, 1347 (11th Cir. 2006) (“Procedural due process rules

are meant to protect persons not from the deprivation, but from the

mistaken or unjustified deprivation of life, liberty, or property.” (citation

omitted)). See also Gilmere v. City of Atlanta, 774 F.2d 1495, 1500 (11th

Cir. 1985).


15

violate the Georgia Constitution’s prohibition against retroactive laws. Ga.

Const. art. I, § I, para. X; see Part I supra.5

Nevertheless, a separate due-process analysis under the Georgia

Constitution would yield the same result.6 Under a substantive due process

analysis, laws are subject to rational-basis review when they do not burden a

fundamental right or a suspect class. Zarate-Martinez v. Echemendia, 299

Ga. 301, 305, 307 (2016). A statute has a rational basis “as long as it ‘bear[s]

a rational relationship to a legitimate objective of the government.’” Id. at

307 (alteration in original). Because the Georgia Supreme Court in Canton

Textile agreed that a statute of limitations defense is not a “fundamental

right,” 253 Ga. at 105 (quoting Chase, 325 U.S. at 314), and because

Defendant has not identified any suspect class to which he belongs by virtue

of his seeking to avail himself of such a defense, § 9-3-33.1’s revival provision

withstands due process scrutiny if it furthers a legitimate government

5 Other states’ courts have reached different conclusions as to whether state-

law revival statutes violate their own state constitutional provisions, often

under a substantive due process rubric. See Doe v. Hartford Roman

Catholic Diocesan Corp., 119 A.3d 462, 509-12 (Conn. 2015) (collecting cases

and concluding that revival statutes have been held to be unconstitutional

in 24 states but permissible in 18). Other state courts’ interpretations of

their own states’ constitutional provisions are of limited relevance here,

where the Georgia Constitution is at issue. Contra ECF No. 3-1 at 10-12.

6 Although Canton Textile did not expressly analyze the revival statute at

issue in that case under due process, see ECF No. 3-1 at 10 n.4, the court did

recognize Campbell’s holding that a revival statute did not violate due

process and agreed with Campbell’s reasoning, see Canton Textile, 253 Ga.

at 105 & n.2.


16

objective. “[A]ny plausible or arguable reason” will do. City of Lilburn v.

Sanchez, 268 Ga. 520, 522 (1997).

Courts have recognized several rational bases for revival statutes

related to childhood sexual abuse. For example, “minor victims of sexual

assault often do not understand or recognize the damage which they have

sustained until a substantial number of years after they attain majority,” and

courts have recognized that even a victim’s injury can take years to manifest.

Doe v. Hartford Roman Catholic Diocesan Corp., 119 A.3d 462, 514-15 (Conn.

2015) (citation omitted) (“Some of the effects of sexual abuse do not become

apparent until the victim is an adult and a major life event, such as marriage

or birth of a child, takes place. Therefore, a child who seemed unharmed by

childhood abuse can develop crippling symptoms years later....” (citation

omitted)). Statutes that extend the limitations period for such victims better

“afford a plaintiff sufficient time to recall and come to terms with traumatic

childhood events before he or she must take action.” Id. at 514 (citation

omitted); see also Sliney v. Previte, 41 N.E.3d 732, 740-42 (Mass. 2015)

(noting similar governmental interests). Revival statutes in particular

provide such plaintiffs with previously time-barred claims opportunities to

vindicate these interests, and such newly possible lawsuits “have led to the

public identification of previously unknown child predators, which reduces

the odds that children will be abused in the future.” Doe, 119 A.3d at 515

(citation omitted); see also Hoffman, 452 N.W.2d at 514. Because the General

Assembly could have enacted § 9-3-33.1’s revival provision to serve these


17

same public-policy objectives, the provision passes muster under rational-

basis review. This conclusion comports with the decisions of numerous courts

that have upheld similar child-abuse-related revival statutes against due-

process challenges. See, e.g., Doe, 119 A.3d at 517-18; Sliney, 41 N.E.3d at

739, 742; Sheehan v. Oblates of St. Francis de Sales, Inc., 15 A.3d 1247, 1259

(Del. 2011); Deutsch v. Masonic Homes of Cal., Inc., 80 Cal. Rptr. 3d 368, 378-

79 (Cal. Ct. App. 2008); Hoffman, 452 N.W.2d at 514; see also, e.g., Roe v.

Ram, No. Civ. No. 14-00027 LEK-RLP, 2014 WL 4276647, at *4-10 (D. Haw.

Aug. 29, 2014); DeLonga v. Diocese of Sioux Falls, 329 F. Supp. 2d 1092,

1100-02 (D.S.D. 2004).

Section 9-3-33.1’s revival provision does not violate substantive due

process under either the federal or the Georgia Constitutions.

III. O.C.G.A. § 9-3-33.1’s limitations framework does not violate equal

protection because it is rationally related to the legitimate

governmental purpose of providing sufficient avenues for

victims of childhood sexual abuse to seek relief.

Broadly speaking, the “Equal Protection Clause requires that the

government treat similarly situated persons in a similar manner.” Gary v.

City of Warner Robins, 311 F.3d 1334, 1337 (11th Cir. 2002). Laws that

result in differential treatment do not necessarily violate that clause,

however. Instead, laws “not employ[ing] suspect classifications or

imping[ing] on fundamental rights must be upheld against equal protection

attack when the legislative means are rationally related to a legitimate

governmental purpose.” Estate of McCall ex rel. McCall v. United States, 642


18

F.3d 944, 950 (11th Cir. 2011) (citation omitted). Under this standard,

“legislation is presumed to be valid,” Gary, 311 F.3d at 1339 (citation

omitted), and those “attacking the rationality of the legislative classification

have the burden to negative every conceivable basis which might support it,”

McCall, 642 F.3d at 950 (citation omitted). Courts must “not overturn the

legislation unless the varying treatment of different … persons is so

unrelated to the achievement of any combination of legitimate purposes that

[the court] can only conclude that the legislature’s actions were irrational.”

Gary, 311 F.3d at 1339 (alteration in original and citations omitted). These

standards also apply to equal-protection challenges brought under Georgia’s

analogous constitutional provision. Ga. Const. art. I, § I, para. II; see Daker

v. State, 300 Ga. 74, 77 n.4 (2016) (“apply[ing]” federal and state equal

protection clauses “as one” given their “coextensive” protections).

Defendant’s equal protection argument focuses on the discovery

provision’s scientific-evidence and pretrial-finding procedural requirements.

See O.C.G.A. § 9-3-33.1(b)(2). He contends that imposing those requirements

on actions brought under the discovery provision, see id. § 9-3-33.1(b)(2), but

not on actions brought under the revival provision, id. § 9-3-33.1(d), is

irrational. ECF No. 3-1 at 13-16. But because Defendant agrees that

rational-basis review applies here, see id. at 14, any differential treatment

hypothetical defendants face under those respective provisions poses no

constitutional difficulty so long as some “legitimate governmental purpose” is

“rationally” served by those provisions. McCall, 642 F.3d at 950.


19

There are rational reasons why § 9-3-33.1(b)(2)’s discovery provision

imposes certain procedural requirements but the revival provision contained

in § 9-3-33.1(d) does not. Unlike the revival provision, the discovery

provision sets the limitations period based on the date the plaintiff “knew or

had reason to know of”—i.e., discovered—his or her abuse and injury.

O.C.G.A. § 9-3-33.1(b)(2)(A)(ii). Thus, it is rational to require the court to

make a pretrial finding of when that discovery occurred, and to set a baseline

for the kind of evidence sufficient to show that date of discovery. See id. § 9-

3-33.1(b)(2)(A)(ii) & (B). Indeed, without such evidence and fact-finding,

plaintiffs could theoretically avoid a time bar under the discovery provision

by merely asserting—without making any further showing—that they

discovered the abuse within the preceding two years. No corresponding

evidence or fact-finding is needed under the revival provision because the

date of discovery is not at issue under that provision; the statute itself

establishes the relevant date by which a plaintiff must file an action. Id. § 9-

3-33.1(d)(1) (must file action before July 1, 2017). In short, the discovery

provision’s procedural requirements rationally further the purpose that the

discovery provision serves, while the revival provision has no need for such

analogous procedural requirements.7

7 Notably, § 9-3-33.1(b)(2)(A)(ii) does not require a plaintiff to establish his or

her injury by competent scientific evidence when claims are brought under

the discovery provision. Contra ECF No. 3-1 at 14-15. Section 9-3-

33.1(b)(2)(A) fixes the available dates by which a plaintiff must file an action

for claims of post-July 1, 2015 abuse; the operative word in § 9-3-

33.1(b)(2)(A)(i) and (ii) is “date,” and thus it is the date of discovery—not any


20

Although Defendant does not advance the argument, § 9-3-33.1 also does

not violate equal protection on the basis that revival actions under the

statute are not also subject to a discovery rule. For the two-year period of

time provided by the revival provision, defendants could be made to answer

older claims regardless of when the plaintiff discovered the abuse, whereas

under the discovery provision, defendants may have a valid statute-of-

limitations defense if the plaintiff had discovered the abuse more than two

years previously. But this differential effect on defendants does not offend

equal protection.8

alleged injury—that must be established by scientific evidence under the

discovery provision. And the court’s pretrial finding required by that

provision concerns “when the discovery of the alleged childhood sexual abuse

occurred.” Id. § 9-3-33.1(b)(2)(B) (emphasis added). Nothing about the text

or structure of § 9-3-33.1—a statute of limitations that does not itself create

an independent cause of action—suggests that the discovery provision

should be understood as imposing an additional substantive element that a

plaintiff must prove to prevail on the merits of “any civil action” brought

under § 9-3-33.1.

8 As an initial matter, it is by no means clear that defendants facing claims

under the separate revival and discovery provisions are even “similarly

situated” in the relevant sense, because at no point will those provisions

ever be applicable contemporaneously. Defendants will only ever be subject

to claims brought in reliance on the revival provision if brought in an action

filed before July 1, 2017. O.C.G.A. § 9-3-33.1(d)(1). By contrast, defendants

will only ever be subject to claims brought in reliance on the discovery

provision if brought in an action filed in July of 2020 or thereafter. That is

because the statute allows plaintiffs to file suit predicated on post-July 1,

2015 acts of abuse either “[o]n or before the date the plaintiff attains the age

of 23 years,” or “[w]ithin two years from the date that the plaintiff” discovers

that he or she had been abused. Id. § 9-3-33.1(b)(2)(A). Given the

availability of the first option—being able to sue before the age of 23


21

Section 9-3-33.1’s various provisions together provide avenues for

victims of childhood sexual abuse to seek relief, a plainly legitimate

governmental purpose. The discovery provision and the revival provision

each rationally further that purpose in different ways. The discovery

provision addresses a latent-discovery issue that courts have acknowledged

may arise in cases of childhood sexual abuse (see Part II supra) by permitting

plaintiffs to file suit within two years after discovering abuse that occurs

after July 1, 2015, i.e., after the amendment that added the discovery

provision was enacted. On the other hand, the revival provision provides

plaintiffs who were abused before the statute included this discovery rule

(and whose claims may have been time-barred even before they discovered

the abuse) a renewed-but-time-limited window for filing suit. There could be

any number of reasons why the General Assembly chose this bifurcated

approach rather than, for example, applying a discovery rule to both pre-

amendment and post-amendment abuse allegations. See, e.g., Doe, 119 A.3d

at 471 n.4, 494 n.37 (discussing Connecticut’s limitations provision for actions

regardless of the date of discovery—the earliest that any plaintiff would

need to rely on the discovery provision would be July 3, 2020. Consider the

example of a plaintiff who was abused as a minor on July 1, 2015, and then

reached 18—the age of majority—the next day. That plaintiff could file an

action up until July 2, 2020—the plaintiff’s 23rd birthday—without having

to rely on the discovery provision to bring his or her suit. Only after that

date would a plaintiff have to assert that he or she brought the suit within

two years from the date of discovery to bring the suit within the limitations

period. In short, different actions against different defendants will never be

subject to the statute’s respective discovery and revival provisions at the

same point in time.


22

predicated on childhood sexual abuse, which applies uniformly to all actions,

including revival actions); Sliney, 41 N.E.3d at 735-36 (discussing

Massachusetts’ similar provision). One rational explanation for the approach

the General Assembly chose is that it reflects a kind of compromise with

respect to pre-amendment abuse allegations: Although it is true that, under

the revival provision, plaintiffs may bring (and defendants have to answer)

previously time-barred claims regardless of when the plaintiff discovered the

abuse, such claims are also absolutely barred after July 1, 2017 (and

defendants have a statute-of-limitations defense)—even if a plaintiff

discovers the abuse later.

In other words, by including a revival provision that (1) expires but (2) is

not tied to discovery of abuse, the statute could be understood to balance the

interest in finality with respect to pre-amendment allegations with the

interest in providing sufficient avenues for victims of childhood sexual abuse

to seek relief. Such a compromise satisfies rational-basis review. See, e.g.,

Gun Owners’ Action League, Inc. v. Swift, 284 F.3d 198, 214 (1st Cir. 2002)

(“Legislators may enact complex compromises when addressing novel social

and economic issues, and it is for the legislature, not the courts, to balance

the advantages and disadvantages of the new requirement.” (citation

omitted)); Arceneaux v. Edwards, 516 F. Supp. 795, 801 (E.D. La. 1980)

(“[L]egislative decisionmaking necessarily involves compromise. To hold the

Act unconstitutional simply because it has too many exceptions would be to

require that a statute either go all the way in remedying a perceived problem,


23

or not attack the problem at all. Such an approach involves too great a

judicial intrusion upon the legislative function.”). Rational-basis review is

highly deferential, and a legislative “classification does not fail [such] review

because it is not made with mathematical nicety or because in practice it

results in some inequality.” Heller v. Doe, 509 U.S. 312, 321 (1993) (citations

omitted). Legislative “reform[s] may take one step at a time,” and the fact

that the “line might have been drawn differently at some points” is not

determinative. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 316 (1993)

(citations omitted). It is enough that the “legislative means” be “rationally

related to a legitimate governmental purpose.” McCall, 642 F.3d at 950. The

lines drawn by this statute are by no means “so unrelated to the achievement

of” the purposes served by § 9-3-33.1 that they amount to a violation of equal

protection. Gary, 311 F.3d at 1339.

CONCLUSION

For the above reasons, this Court should reject this challenge to the

constitutionality of O.C.G.A. § 9-3-33.1.

Respectfully submitted.

/s/ Sarah Hawkins Warren

Kathleen M. Pacious Christopher M. Carr Deputy Attorney General Ga. Bar No. 558555

Attorney General of Georgia Ga. Bar No. 112505

Roger A. Chalmers Sarah Hawkins Warren Senior Assistant Attorney General Ga. Bar No. 118720

Solicitor General Ga. Bar No. 219208

Susan E. Teaster Andrew A. Pinson Senior Assistant Attorney General Deputy Solicitor General


24

Ga. Bar No. 701415 Ga. Bar No. 584719

Jameson B. Bilsborrow

Assistant Attorney General Ga. Bar No. 505735

Office of the Georgia Attorney General

40 Capitol Square, SW Atlanta, Georgia 30334 (404) 463-0770 [email protected]

CERTIFICATE OF COMPLIANCE

Pursuant to Local Rule 7.1(D), I hereby certify that the foregoing has

been prepared in compliance with Local Rule 5.1(B) in 13-point Century

Schoolbook type face.

This the 1st day of June, 2018.


Sarah Hawkins Warren


25

CERTIFICATE OF SERVICE

I hereby certify that on June 1, 2018, I served this notice by

electronically filing it with this Court’s ECF system, which constitutes service

on all attorneys who have appeared in this case and are registered to use the

ECF system.


Sarah Hawkins Warren


Case 1:18-cv-00861-JPB Document 24 Filed 06/01 ... - Law.com

Documents

Transcript of Case 1:18-cv-00861-JPB Document 24 Filed 06/01 ... - Law.com