Pennsylvanians experienced plenty of failures of leadership from Governor Tom Wolf’s administration in 2020. In the new year, nothing has changed. This week, Secretary of the Commonwealth Kathy Boockvar announced that she would resign following the revelation that her department’s failure to advertise a proposed amendment to the state constitution meant that some victims of sexual abuse would have to wait until at least 2023 to pursue justice in the courts. 

Boockvar’s ineptitude is exactly what one should expect from someone appointed as a political reward rather than in recognition of her competence. Putting political friends in political jobs is not unique to the Wolf administration — it is a time-honored practice in this and every state. But Pennsylvanians have the right to expect minimal competence from the politicos serving in office. In 2020, this expectation was unmet in Rachel Levine’s mismanagement of the state health department, a failure that led to a relentless policy of forcing nursing homes and care facilities to accept Covid-positive patients, leading to many unnecessary deaths and one of the highest rates of such deaths in the nation. 

Boockvar’s failure will not put anyone in an early grave, but it will cause further anguish to long-suffering survivors of child sexual abuse.

Boockvar’s failure will not put anyone in an early grave, but it will cause further anguish to long-suffering survivors of child sexual abuse.

The background to this story is straightforward enough. Christen Smith explained earlier this week that Pennsylvania’s General Assembly approved a long-discussed bill in November 2019 to open “a two-year window for survivors to file litigation against abusers, even if the statute of limitations long expired.” This bill, and the debate around it, emerged from “recommendations from a 2018 statewide grand jury report that investigated decades-old claims of child sex abuse in the Catholic Church.”

The grand jury report made headlines around the world. Survivors groups were jubilant — perhaps at long last they could meet their victimizers in civil court. After complex legislative jockeying, they survivors found bipartisan support for their efforts. 

Statutes of limitations are important, but the nature of this exact crime, and the reluctance of victims to come forward about the atrocities visited upon them as children made it prudent to extend the statute by legislation so that justice long delayed would not be forever denied. 

The sticking point in the Pennsylvania legislature was that many Republicans believed removing the statute of limitations retroactively would violate the state constitution. The solution: amend the constitution

For victims, this meant a lengthier process — but perhaps one that would hold up in court.

The state legislators took their oath to the constitution seriously and did their jobs. In accordance with Article XI of the Pennsylvania Constitution, they passed House Bill 963 in two consecutive legislative sessions, the greatest hurdle to getting a constitutional amendment on the ballot for voters to approve. 

All that remained was for Governor Wolf’s appointed Secretary of the Commonwealth, Kathy Boockvar to “cause the same [language] to be published three months before the next general election, in at least two newspapers in every county in which such newspapers shall be published” as the Constitution requires (“General election here means “non-special election” rather than “non-primary election.”). Then the voters would have their say on it in May 2021.

But this did not happen. As a result, the constitutional amendment will not appear on the ballot and the process will have to be restarted, setting victims back years. As adult victims of child sex abuse, some will not live to see justice. 

Boockvar resigned, effective February 5, and Wolf issued a heartfelt apology, but the damage was done. 

The constitutional amendment will not appear on the ballot and the process will have to be restarted, setting victims back years. As adult victims of child sex abuse, some will not live to see justice. 

Democrats, including Attorney General Josh Shapiro, have proposed a simple solution: just pass a bill that does the same thing. “I need this to be right for these people,” Shapiro said of victims in a statement to the Philadelphia Inquirer. “They have suffered so much, and they deserve so much better than what some in their state government have done to them.” Wolf also endorsed the idea. But this is the exact sentiment that the legislature rejected the first time around, so it is not clear why it would work now.

The law is not about what Josh Shapiro “needs.” Republicans in the legislature were right to reject his approach in 2019. Pennsylvania’s legislators cannot make something retroactively unlawful or worthy of civil charges. Going forward, they can change the statute of limitations any way that they want, and they did so in 2019, removing it altogether for this crime. But to do that going backwards would make something that already happened newly subject to a lawsuit.

A practical objection to Shapiro’s plan is that it will make the victims and their advocates happy in the short-term (in time for the 2022 elections, for instance) but it carries a serious risk of getting struck down by the courts. And what then? The principle of res judicata does not allow the same party to sue the same defendant for the same thing twice, if the first judgment is considered final. Thus the short-term desire to do justice might very well produce a long-term injustice. Even if res judicata is held not to apply, the false start will have dragged the process out even longer that a constitutional amendment would have, wasting the victims’ time, money, and emotional effort.

Beyond that, there are good reasons for requiring extraordinary effort to make this kind of change in the law. What the state is proposing to do here is to take away a civil right. The target of the action is a particularly grotesque group of offenders, many of them former clergy, which makes the average citizen shrug at the thought of harming them. Reading the findings of the 2018 grand jury report makes it very clear how disgusting and harmful their actions were, and how much impunity they were granted in their abuse. Their actions deserve punishment.

READ MORE — Christen Smith: PA Secretary of State Boockvar resigns over error that delays justice for sex abuse survivors

That was certainly my reaction when I first read that report, the same as it was when I read the 2011 Philadelphia grand jury report that detailed the abuses at my own former parish in Northeast Philadelphia. The descriptions of the horrors visited upon those victims sickened me. The thought that such depravity was taking place within a trusted institution sparked equal outrage among my friends and neighbors. We all would likely have welcomed the harsh imposition of justice, be it legal or extralegal.

But that emotional response would tear down the safeguards of the law that make us a civilized society, and not just a mob. We put these guarantees like this into our constitution because we know that we need to protect them, even from ourselves. There was (and is) good reason to create an exception to the usual rule in this one unusual set of circumstances, but if we are allowed to do so by simple legislation, then none of our other rights are safe, either.

There is no easy solution for this major screw-up, and an apology probably will not cut it for the adults who have been living with their nightmares of abuse for decades now.

Shapiro and Wolf are well-intentioned here, but what they propose would make constitutional guarantees meaningless. Boockvar’s screwup short-circuited the pursuit of justice, but a simple legislative remedy would, if the courts let it succeed, blow up our whole scheme of rights and civil liberties. Instead of making the legislature into a lynch mob, we should start over and do things the right way. Governor Wolf and future governors should learn from this — and hire better people. 

Maybe there is a solution that can correct Boockvar’s error. Perhaps the primary can be moved to September, so that the three-month window before the “next general election” is reopened. 

But if that is not possible, we may have to face the fact that no one can remedy the consequences of her dereliction of duty, leaving us with just a hard lesson learned about the dangers of inept officeholders and the importance of following the constitution they swore to uphold.

Kyle Sammin is a senior contributor to The Federalist, co-host of the Conservative Minds podcast, and resident of Montgomery County. He writes regularly for Broad + Liberty. @KyleSammin

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