Challenging Wisconsin’s Proposed Windows Legislation

The deeply unsettling and appalling nature of the Catholic priest abuse scandal is difficult to express in hyperbole.  More and more cases continue to come out of the woodwork, and stories abound of allegations of cover-ups and throwing around hush money to abuse victims, all incited by those charged with the sanctified duty to guide, teach, and counsel the faithful.  Words alone cannot encapsulate the scarring that this scandal has wrought on its many victims.  Even a pastor at my parish told the congregation when the scandal first came to light that the news left him “ashamed to be a priest.”

In the wake of such grizzly conduct, however, is the need to address how to remedy the problem.  For some victims of abuse, the solution is a day in court: a chance to bring a civil action for a public determination of liability and an order of compensation for the wrong.

But under current Wisconsin law, the statute of limitations has already barred many of these abuse suits.  Section 893.587 of the Wisconsin Statutes provides that a victim of sexual abuse as a child may bring an action until that victim turns 35 years old; at that time, the cause of action evaporates.  The statute covers a cause of action for clergy abuse under Section 895.442(2)(a) of the Wisconsin Statutes.

The proposed revisions, 2007 Assembly Bill 651, “would remove the time limit for bringing those actions” according to Wisconsin’s Legislative Reference Bureau.  If there was any doubt that the legislature really would take that drastic step, the first section of the proposed bill prescribes just that result.  The proposal replaces the current statutory language limiting the action to “before the injured party reaches the age of 35” with “at any time,” thereby eviscerating any statute of limitations for subsequent instances of sexual abuse.  Furthermore, the proposal includes a provision that would revive causes of action that would have been time-barred before the effective date of that proposed law, allowing plaintiffs holding those rights of action a three-year window to sue after the effective date of the legislation.

Insofar as this language would allow potential plaintiffs to reinstate cases that the courts have already dismissed, the statute effects a legislative reversal of an elemental judicial power: the power to issue final judgments.  In the federal context, the Supreme Court has already rejected a similar legislative attempt in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).  In Plaut, the plaintiff filed a securities fraud suit that, due to an intervening Supreme Court case altering the statute of limitations for § 10(b) actions, the district court dismissed as time-barred.  Soon after that dismissal, Congress passed the FDIC Improvements Act, which contained a provision that allowed plaintiffs that would have been able to pursue a § 10(b) action had the Supreme Court not intervened to reinstate their suits, sans the statute of limitations bar.

After the Plaut plaintiff tried to reinstate his action, the Supreme Court held that provision of the statute unconstitutional as violating separation-of-powers principles.  Chief among those principles was that a judgment, “[h]aving achieved finality . . . becomes the last word of the judicial department with regard to a particular case or controversy.”  Thus, though Congress has the power to prescribe the limits of federal court power through jurisdictional grants and defining when a judgment is final in the first instance, “Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.”  Such applicable laws, as per the court’s decision on Plaut’s facts, included the statute of limitations for the § 10(b) cause of action.

Though Plaut treated the inter-branch relationship between the federal judiciary and Congress, the Court understood the historical motivations for their rule to derive from contrary (and, in the Court’s view, errant) state practice.  According to the Court, “[t]he Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers, which had been prevalent in the colonies long before the Revolution.”  To be sure, the legislatures in the colonies functioned as effective courts of last resort, sometimes setting aside final judgments and reopening the case for a new trial or appeal.  It was this practice that drove the Constitution’s framers to vest the judicial power in the Supreme Court and other inferior courts, not in Congress.

This is not to say, however, that Plaut completely answers whether this legislation is unconstitutional.  Plaut demonstrates, however, the fundamental separation of powers concerns that are implicated when the states regulate previously entered final judgments.

Be that as it may, Plaut does not limit the power of legislatures to prescribe rules of decision for later cases.  The assembly bill also would certainly apply to suits yet to be filed.  But the infirmities of this legislation do not end with the Plaut principle.  There may be cases where the only party alive at the time would be the plaintiff that would have been abused decades before commencing the suit.  Moreover, the primary injuries asserted are those for psychological trauma, where it is distinctly difficult to prove how one felt years and years ago, as the Wisconsin Supreme Court in Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302 (1995), warned.  These defects will only be exacerbated the longer a plaintiff waits to sue.

One should be mindful, as Justice Oliver Wendell Holmes has advised, that the direction of the law may be driven by “the felt necessities of the time,” and the abuse scandal undoubtedly cries for justice to be done.  Justice, however, is not a one-way ratchet that victims and only victims can wield to bludgeon the person who wronged them, as much as we may personally wish to lash out at these abusers and vindicate the victims somehow and someway.  As difficult as it is to say in the context of conduct as egregious as the sexual abuse present here, our system of law seeks justice for all, including the wrongdoer.  That system ensures that the defendant’s rights to proper adjudication and their right to be heard are preserved.

Likewise, justice is not served by court proceedings decades after the fact where the evidence cannot carry the reliability necessary for a proper decision.  A victim may wish for their day in court, a desire that is in itself perfectly valid.  But would this legislation really fill that need?  To be sure, “process which is a mere gesture is not due process.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).

This Post Has 3 Comments

  1. Tom Kamenick

    How many times has the statute of limitations already been extended for victims of sexual abuse?

  2. Andrew Spillane


    From what I can tell, the first version of section 893.587 of the Wisconsin Statutes was enacted in 1987, setting forth a two-year discovery rule for incest lawsuits. In 2001, the statute was amended to cover other forms of sexual abuse and extended the discovery rule to five years. Then, 2003 Assembly Bill 279 introduced the current rules, adding a clergy abuse cause of action and subjecting that right of action to the 35-year-old marker.

    And so, this statute has been amended three times. That said, the statute of limitations was amended only twice with regard to sexual abuse in general, and neither the 2001 nor the 2003 bills contained the revival provisions that the 2007 bill would adopt. The only clergy abuse statute of limitations on the books in Wisconsin is the one currently in force.

  3. Christopher Wolfe

    Good job, Andrew . . . People need to think through why there are statutes of limitation in the first place.

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