Louisiana’s attorney general has filed a request with the state Supreme Court asking justices to rehear their 4-3 decision last month that overturned a state law giving child sexual abuse victims some additional time to file civil lawsuits.
Attorney General Liz Murrill filed the application with the high court on April 5, calling on justices to reconsider their previous decision invalidating the Legislature’s Act 322, which was amended to Act 386 two years ago. Act 386 gave child sexual abuse victims a three-year window to file lawsuits against their alleged perpetrators, allowing victims to overcome statutes of limitations in effect when the abuse took place.
The state Supreme Court found that the law was unconstitutional because the Legislature lacked the authority to revive the previously barred civil claims. The defendants had accrued a “vested property right” under the previous law under “substantive due process” guarantees in the state constitution, the court concluded.
“Our brief explains that this case raises serious concerns about the separation of powers and the proper judicial role,” Murrill said in a prepared statement. “We are hopeful that the court will agree, take a second look and give these victims their day in court. I will continue to show my support for victims of sexual assault.”
Murrill’s filing comes at the same time state Sen. W. Jay Leneau (D-Pineville) introduced a measure, State Concurrent Resolution 26, clarifying that the intent of the Legislature was to retroactively apply provisions of the two acts to allow child sexual abuse victims a window to file civil claims they were previously barred from filing.
Murrill specifically criticized the ill-defined nature of the high court’s opinion striking down what’s called the “lookback window.”
“The majority opinion … strikes the very heart of the separation of powers,” the application states. “Specifically, it holds that a policy passed unanimously by both houses of the Legislature and signed by the governor is ‘unreasonable and violative of substantive due process.’”
Attorney Kristi Schubert, who has represented scores of childhood sexual abuse survivors in Louisiana, said it was unclear how the court might respond to Murrill’s request.
“The Louisiana Supreme Court has been extremely difficult to predict when it comes to the lookback window law, so it’s impossible to say,” Schubert told the Louisiana Record in an email.
In their opinion published in March, the court’s majority failed to define the boundaries of “substantive due process” under the state constitution, according to the attorney general’s application.
“The inevitable result is open season on the separation of powers,” the attorney general’s filing states. “Enterprising plaintiffs and defendants in future cases will seize on the majority opinion to assert all manner of ‘unreasonable’ substantive due process violations. And Louisiana courts – lacking guideposts – will begin making policy decisions rather than leaving policymaking to the Legislature and the executive.”
The application suggests that a federal case, Washington v. Glucksberg, which limits the application of the due process clause in the U.S. Constitution, could provide the guideposts needed to apply due-process guarantees in the Louisiana Constitution.
The absence of such guardrails in the application of constitutional provisions “threatens to collapse the separation of powers under the Louisiana Constitution” and to create “an open door for freewheeling judicial policymaking,” the application states.
The high court’s opinion could upend state lawmakers practice of suspending certain property insurance claims deadlines when natural disasters, such as hurricanes, hit the state, according to the filing. The Attorney General’s Office also raised the possibility that new zoning and property seizure laws might be invalidated under the majority opinion because measures that affect the status of citizens' real property could now be held in violation of vested rights.