Enactment of AB 218 Brings Uncertainty, Anxiety

When, in 2013, a bill was introduced in the California Legislature that would have revived previously time-barred claims of negligence against third-parties to acts of childhood sexual abuse, the state’s private school leaders were faced with a terrible decision: oppose the legislation, and give the appearance of being uncaring about the unspeakable suffering endured by victims, or ignore the fact that the legislation was fundamentally unfair to both victims and employers. Following a protracted period of analysis and debate, the California Association of Private School Organizations (CAPSO) opted to register opposition to SB 131 (Beall), solely over the measure’s lack of equitability.

SB 131 would, effectively, have removed previously existing statutes of limitations affording third-parties a reasonable degree of protection against claims of childhood sexual abuse made long after the occurrence of the actual events.  Under the proposed legislation’s “delayed discovery” provision, a claim could be revived 50, 60, even 70 years after the fact.  If, in the course of current therapy, an individual was to discover that his/her adult suffering – whether in the form of alcoholism, depression, drug dependency, etc. – was caused by an act of childhood sexual abuse committed in 1965, SB 131 would have permitted a claim of negligence to be brought against a private school in which alleged accompanying negligence was said to have occurred.

Removing statutes of limitations, retroactively, raises serious questions of fairness in its own right, but SB 131’s most objectionable feature was that its provisions were applicable to private entities, only. Victims whose abuse occurred in public schools would have been barred from advancing claims of negligence. Public sector employers would have been protected from liability had they committed the very same act(s) of negligence for which private employers were to be held accountable.  In short, the measure offered justice for some (victims) while denying equal protection to all (employers).

When CAPSO articulated its position of opposition to SB 131, both in written communications and oral testimony before legislative committees, it made it clear that if the bill was to be amended in a manner that made public and private entities subject to the same provisions, opposition would immediately be dropped.

While that never happened, former Governor Jerry Brown ended up vetoing the bill. In his SB 131 veto message, the former Governor gave his own expression to CAPSO’s objection, writing:

“I can’t believe…that victims of abuse by a public entity are somehow less deserving than those who suffered abuse by a private entity. The children assaulted by Jerry Sandusky at Penn State or the teachers at Miramonte Elementary School in Los Angeles are no less worthy because of the nature of the institution they attended.”

Fast forward to 2018, when Assemblymember Lorena Gonzalez introduced AB 3120, an updated version of SB 131 that improved upon the former bill by making local public entities (including California’s K-12 public schools) subject to its provisions, though continuing to exclude state entities. Under provisions of the new bill, private postsecondary institutions such as Stanford University and the University of Southern California would become subject to previously time-barred claims, while U.C. Berkeley and UCLA would not. CAPSO once again registered opposition, solely on ground of lack of equitability, arguing again that AB 3120 was unfair to both victims and employers. And once again, Governor Brown agreed.  The bill was vetoed.

With a newly-elected governor ensconced in Sacramento, Assemblymember Gonzalez tried again, this time in the form of AB 218, a measure that was largely identical to the same author’s prior bill. CAPSO registered opposition, making it clear, once again, that if the bill underwent amendment so as to offer all victims equal recourse and subject all employers to the same provisions, opposition would immediately be removed.

Objections arose from other, more powerful interests. Both the California School Boards Association and the Association of California School Administrators registered opposition to AB 218, and vigorously contested the measure. Their reasons for doing so had relatively little to do with lack of equity, and a great deal to do with money. As was repeatedly observed by representatives of the insurance industry, in testimony offered throughout the course of committee hearings, if AB 218 was to become law the affordability, and even the availability of liability insurance for schools and other client groups would be severely impacted.

Governor Newsom’s own Department of Finance glimpsed the financial repercussions. With public school district budgets strained to the breaking point by burgeoning pension obligations to retirees that current eat up roughly 20 cents of every dollar, public schools could ill afford exposure to the massive liability invited by AB 218. When the measure came before the Senate Appropriations Committee the state’s Department of Finance announced an “oppose” position. It was widely thought that this most significant source of opposition would provide the Governor with the political cover he needed in order to veto the measure.

But that was not to happen. On the evening of the last day available to take action on still-pending bills, Gavin Newsom affixed his signature to AB 218. Did Mr. Newsom act on principle, displaying the courage necessary to expose the state’s K-12 public education system to massive liability, in the interest of providing justice for victims? Or, did his signature reflect self-interest and cold political calculation on the part of a future presidential contender seeking to secure the support of the powerful special interest group that has stood behind all three bills?  Trial attorneys stand to profit, handsomely, from AB 218’s implementation.

Whatever the Governor’s motivations (and the two possibilities mentioned above are not mutually exclusive), AB 218’s provisions will take effect on January 1, 2020. With that date rapidly approaching, California’s K-12 schools face considerable uncertainty, and not a little anxiety. A multitude of questions loom: How will insurers respond? If schools find themselves facing decades-old charges of negligence and cover-ups (which, under AB 218, triggers treble damages), how will they defend themselves? How can documents disposed of long ago (in reliance upon statutes of limitations that will be retroactively removed) be retrieved? How can witnesses be produced (particularly if they are no longer alive)? What will it cost to mount a defense? What are the implications of an adverse judgment? How will lawmakers respond if adverse judgments throw public school districts into insolvency?

With the contours of a newly emerging landscape yet unclear, it remains to be determined who will benefit from the enactment of AB 218, and who will suffer. For now, a six-year struggle has drawn to a close with the stroke of a pen.

(Note: The views expressed in this article are those of the author, and do not necessarily reflect the policy of the California Association of Private School Organizations.)

 

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