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In a rarely used move, leaders in the Pennsylvania House of Representatives have agreed to employ an emergency tactic to allow voters to decide whether survivors of decades-old sexual abuse should have a chance to sue the perpetrators and institutions that covered up the crimes.
The chamber’s decision follows the shocking admission this week that “human error” by the Wolf administration would prevent voters from deciding the issue during the May primary. The news devastated Pennsylvania’s community of survivors, who have long pushed for a two-year reprieve in the statute of limitations so they can bring litigation, and led Secretary Kathy Boockvar to resign.
State Rep. Mark Rozzi (D., Berks), a survivor of child sexual abuse and a longtime champion of the two-year window, said Thursday that he had received commitments from Republicans who control both chambers to run an emergency constitutional amendment so that the referendum can appear on the ballot this spring.
Senate Republicans, however, signaled caution about using the tactic, saying only that they are committed to “reviewing” what the House sends over.
“To date, we have not committed to any specific legislative strategy, but are committed to supporting the victims who were impacted by the department’s extreme carelessness,“ said Jennifer Kocher, spokesperson for the Senate GOP, calling the mistake by Boockvar’s agency “colossal negligence.”
Emergency amendments, according to the state constitution, can be used in situations where “the safety or welfare of the commonwealth requires prompt” change. Unlike traditional constitutional amendments, which require the legislature’s approval in two consecutive sessions, an emergency amendment only needs to be voted on once in both chambers. If it receives two-thirds approval, it can then immediately be positioned to appear on the ballot.
Emergency constitutional amendments have only been used three times before, all in the 1970s, according to House staff. The first time was in response to dangerous flooding, according to state constitutional experts.
That fact alone could leave it vulnerable to litigation.
Bruce Ledewitz, a professor at Duquesne University School of Law, said he does not believe the two-year window meets what “a court would define as a major emergency.”
“It just doesn’t sound like something a court would say is about to threaten the safety of the commonwealth,” he said.
Creating a temporary legal reprieve for older survivors has been decades in the making. But it gained momentum after the Pennsylvania Attorney General’s office released a scathing grand jury report in 2018 that documented how top Roman Catholic leaders in Pennsylvania covered up decades of child sex abuse involving more than 1,000 victims and hundreds of priests.
The report led to a tense and emotional debate in the state Capitol over the best way to help child sexual abuse survivors who were too old, under the state’s statute of limitations, to sue over the long-ago abuse.
Many Republicans in the state Senate opposed opening a two-year window through traditional legislation, saying they believed that route would violate provisions in the Pennsylvania Constitution that prevent retroactive punishment. Lobbyists for the Catholic Church and the insurance industry at the time also fiercely lobbied against any retroactive changes.
Ultimately, the legislature agreed to push the measure through as an amendment to the state constitution, a lengthier process but one Republicans argued would be less susceptible to successful litigation.
In their 2019-20 session, both chambers approved a traditional constitutional amendment on the subject. And when the new two-year session began last month, the House passed the measure for a second time, and it was well on its way to being put to a vote in the Senate.
If it had passed there, as it was widely expected, voters would have had the ultimate say in May.
But earlier this week, it was revealed that the Department of State had failed to advertise the proposed two-year window. Under state law, the agency is required to advertise any proposed constitutional amendment both times it is approved by the legislature.
That never happened in 2019. Because of the error, the legislature would have had to start from scratch, approving it in this two-year session, as well as the next — with 2023 being the earliest Pennsylvanians would be able to vote on the change.
After the mistake was revealed, Boockvar, head of the Pennsylvania Department of State, announced she would resign.
Gov. Tom Wolf said “human error” was behind the lapse. Department of State officials, however, have refused to give details about what went wrong.
Speaking on the House floor Thursday, Rozzi said the emergency route would put voters back on track to decide on the two-year window this May.
It is unclear when the House will vote on the emergency amendment, which was first pushed by House Minority Leader Joanna McClinton (D., Philadelphia).
Despite the tight deadline, House Democrats said they are confident there’s enough time to move the measure through both chambers and get it on the ballot. They noted that the advertising requirements for emergency constitutional amendments are less stringent.