Colorado Ban on Any Law "Retrospective in Its Operation" Means Old Sex Assault Claims Can't Be Revived

The Colorado Supreme Court holds that the state constitution precludes revival of claims on which the statute of limitations has expired.

Article II, section 11 of the Colorado provides that,

No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly.

Bans on ex post facto laws have long been interpreted as applying only to criminal statutes (see, e.g., Calder v. Bull (1798)), but the Colorado Supreme Court had held that bans on retrospective laws also extend to lawsuits dealing with civil liability; and while deciding what counts as a "retrospective" law can be complicated, the court had held that revival of claims on which the statute of limitations had expired is indeed impermissibly "retrospective." In yesterday's Aurora Public Schools v. A.S., the court unanimously held (in an opinion by Justice Monica Márquez) that the Colorado Legislature's revival of time-barred sexual assault claims was thus unconstitutional. And it added,

We clarify today that there is no "public policy exception" to the ban on retrospective laws in article II, section 11 of the Colorado Constitution. If the constitutional proscription in article II, section 11 were required to yield to the policy preferences of the legislature, there would be no proscription at all; the legislature could make any retrospective law constitutional simply by proclaiming that the law serves a legitimate government interest. Such a back-end rational-basis balancing of an otherwise unconstitutional law against the public interest would render the retrospectivity clause meaningless. This cannot be.

For a similar decision under the Utah Constitution's general due process principles, see Mitchell v. Roberts (Utah 2020); see also Doe A. v. Diocese of Dallas (Ill. 2009) and Doe v. Roman Catholic Diocese (Mo. 1993). For decisions upholding such retroactive revival of time-lapsed sexual assault claims under general due process principles, see A.B. v. S.U. (Vt. 2023) and the cases that it cites.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Comments

[Brett Bellmore]

If only the federal courts were as diligent about this topic.

[Sarcastr0]

Do you think this is constitutionally mandated?

[Bored Lawyer]

There is no comparable provision in the US Constitution. The only bar is to ex post facto laws, and that was limited to criminal laws very, very early.

[hoppy025]

Sure there is. The Lautenberg Amendment retroactively took away gun rights from people who were convicted of certain misdemeanors. If that isn't constitutionally problematic, I don't know what is.

[Brett Bellmore]

It even took them away from people who'd pled guilty to those misdemeanors on account of the only penalty at the time they pled being a fine that was less than the cost of going through a trial.

[Sarcastr0]

"If only the federal courts were as diligent about this topic"

Doesn't fit well with Brett, the 'everyone who isn't my flavor of textualist-originalist hates the Constitution' guy.

Huh.

[hoppy025]

WTF are you blabbering about?

[Dilan Esper]

Sarcastro is talking about the fact that Brett has this tendency to treat his ideosyncratic views of what the Constitution means as the only reasonable interpretation, and to call everyone who disagrees with him unprincipled.

[hoppy025]

Except that Brett is right. It's not reasonable to interpret "Due Process of law" to mean that you have the right to shoot off into your "husband" unprotected.

[Tom for equal rights]

Article 1 Section 10.
No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

Nothing in the constitution limits "ex post facto law" to criminal. Oddly, the language only applies to states and not the federal government . (at least based on the text)

[SMP0328]

The ban on the federal government enacting an ex post facto law is at Article I, Section 9, Clause 3.

[Tom for equal rights]

Thanks - I missed that - though like the article 10, there is no distinction that would limit ex post facto to criminal instead of both criminal and civil

[arbitrary aardvark]

That's an interesting conflict between text and history. The text seems to have an unambiguous plain meaning, at least to the latinx. Should we read constitutional provisions as terms of art? Maybe sometimes. Which makes it ambiguous, so we can look to history and precedent. My sympathy is to bar such suits as time-barred; how could I fairly defend an allegation (by an alligator) about my conduct from 1972? Trump, for all his faults, has the advantage of being able to hire good lawyers. more so than most accused of very old crimes. I have not studied the case law that upholds these kinds of reaching back; maybe there are counterarguments to my intuitive sense that it is unfair and contrary to a presumption of innocence.

[Bored Lawyer]

Nothing in the constitution limits “ex post facto law” to criminal.

It is what it today called a term of art. It's a legal phrase that had a definitive understood meaning at the time of the Founding. Which was criminal laws, not civil laws

You can read the SCOTUS opinion here: https://supreme.justia.com/cases/federal/us/3/386/#tab-opinion-1935355

Note the citations to Blackstone, a leading English legal authority at the time, and several state constitutions.

[Bob from Ohio]

"It’s a legal phrase that had a definitive understood meaning at the time of the Founding. "

So did "establishment of religion" but that didn't stop the courts.

[SRG]

That is, of course, why Trump was sued for defamation, not sexual assault.

Perhaps these devices are the only way forward. There's an old English trick, stemming from the immunity of MPs for anything said in the Commons - if an MP says something defamatory, the victim will initially publicly dare the MP to repeat the allegation outside the Commons, and when the MP inevitably declines to do so, publicly excoriate the MP as a coward, and continue to call him a coward, which would itself be defamatory if and only if the Commons allegation were true.

[Brett Bellmore]

That they'd only have to clear a "preponderance" of the evidence, rather than actually proving him guilty beyond a reasonable doubt, was probably a factor, too.

[jb]

There's a bunch of differences in addition to the one you mention, which are probably more relevant:

1) Even assuming there were identical statue of limitations for defamation vs. sexual assault, the assault happened a long time ago whereas Trump can't help running his mouth so the defamation happened fairly recently.
2) Different people decide whether to bring criminal cases vs. civil cases. If there weren't a statue of limitations for sexual assault, a DA would still have to decide to take up the case, whereas Carroll can bring a civil case on her own. The standard of proof certainly might influence a prosecutor's decision to bring charges, as is often the case in sexual assault cases.

[Bored Lawyer]

Actually, he was also separately sued for the assault, because the NY legislature decided to reopen the statute of limitations on sexual assaults for a one-year window. Even for assaults that allegedly took place to an adult, and decades ago. Foolish, IMO, but it has been upheld.

[Jett's Pop]

He was sued for sexual assault, although not initially. As I remember the newspaper reports, NY passed a law permitting the revival of otherwise-time-barred sexual assault claims, and the plaintiff in the case amended her complaint.

Ooops! Just saw that Bored Lawyer already made this point. Sorry.

[Michael Ejercito]

Such laws are just cash grabs for civil trial attorneys!

[Brett Bellmore]

When they're not clearing the obstacles to lawsuits against a pesky candidate for office, of course. A lot harder to allege an offense if it's recent enough the target might have an alibi at hand.

[David Nieporent]

Oh FFS. It had nothing whatsoever to do with Donald Trump.

[Michael P]

So why did they only kill the statute of limitations for one year?

[David Nieporent]

It was a compromise between trial lawyers and institutions (read: the Church). California did exactly the same thing, and that didn't involve Trump. For that matter, NY (and many other states) had previously done the same for child victims, and that also didn't involve Trump.

[Bored Lawyer]

The idea was the victims of child abuse are so psychologically scarred that it was unfair to hold them to the usual statute of limitations.

I was dubious about that. The law in NY was that the SOL was three years, AND it did not start to run until the person reached 18. So in practice that meant that a victim of child abuse had until 21 to file suit. Seems to me in most cases, a person can bring a claim by then.

But what I really think is unjust is to apply it to adults who claim they were abused. The woman suing Trump claims she was raped in 1996, when she was 52 years old! I see no reason that she should get a retroactive extension. And in that case, there really was the type of prejudice that SOL's are meant to deal with. She could not remember the time and date of the alleged rape, which of course made it much harder for Trump to prove the negative.

[Brett Bellmore]

Where the supposed victim can't identify a time and place, such suits should be categorically barred, except under extraordinary circumstances. (Like, you get kidnapped by somebody who relocates you blind folded, sure, you've got an excuse for not knowing where you were raped.)

[David Nieporent]

Why should they be "categorically barred" any more than any other suit? That sounds like a quintessential fact question for the jury.

[Ed Grinberg]

A "public policy exception"! Of course! It turns out we (the legislature) can do whatever we like! Why didn't anyone think of this before?!

[SRG]

As a side note, in his autobio "White Nights", Menachem Begin said he was convicted by the Soviet Union under an ex post facto law, and the location of the purported crime wasn't even under Soviet sovereignty at the time of its commission. Beat that, US!

[Michael Ejercito]

Laws that allow revival of sexual assault claims that expired due to statute of limitations are nothing more than a cash grab for civil trial attorneys!

[MistahWhiskas]

What's better here, the repeat or the repeat with explanation marks?

[mydisplayname]

The "making any irrevocable grant of special privileges, franchises or immunities" clause used by Colorado (and others) is far clearer than "No Title of Nobility shall be granted" in the federal Constitution.

The founders were explicitly rejecting the idea that "A body of nobility is also more peculiarly necessary in our mixed and compounded constitution, in order to support the rights of both the crown and the people, by forming a barrier to withstand the encroachments of both. It creates and preserves that gradual scale of dignity, which proceeds from the peasant to the prince; rising like a pyramid from a broad foundation, and diminishing to a point as it rises. It is this ascending and contracting proportion that adds stability to any government; for when the departure is sudden from one extreme to another, we may pronounce that state to be precarious. The nobility therefore are the pillars, which are reared from among the people, more immediately to support the throne; and if that falls, they must also be buried under it's ruins." The rejected concept rears it ugly head periodically (labor unions having powers not available to the citizenry, public employees in academia having privileges not available to public employees at large, et c.).

[JoeGoins]

Any thoughts on The Intercept's recent report about LexisNexis selling customer data and search history to Immigration and Customs Enforcement? See story here.

[ConservativeProfessor]

How can one violate a law that does not exist at the time one acted? Post facto laws are a species of a bill of attainder, since their whole purpose is to target a class of persons: those who in the past acted lawfully doing X.