High court considers sovereign immunity claim for some sex abuse lawsuits

Maryland’s highest court heard arguments on an appeal Monday that will affect 1,300 lawsuits filed under the Child Victims Act.

The 2023 law effectively eliminated time barriers for someone to file a court claim of institutional sex abuse. At issue are the roughly 1,300 cases in which the alleged sexual assaults took place before 1982, a time when the state had absolute immunity from lawsuits. The Supreme Court of Maryland is being asked to decide if the General Assembly, when it passed the landmark 2023 law, clearly and knowingly waived that immunity.

Jonathan Massey, attorney for a plaintiff known only as J.C., said the waiver of damage caps in the 2023 law are proof of the legislature’s intent.

The change “is the waiver of state sovereign immunity, and make changes that assume there will be a damages cap, assuming there will be liability to the state, right? That’s why you need a damages cap because there’s going to be liability to the state. I don’t think the legislature was silent in 2023 on the issue of sovereign immunity,” Massey said during oral arguments.

Monday’s appeal involves a claim of sexual abuse from 1977, when J.C. was a patient at the old Prince George’s Hospital Center, where she claimed a doctor molested her during a stay there.

State claims immunity from some sexual abuse lawsuits filed under the Child Victims Act

Lawyers for the state argued that the state at the time was protected by sovereign immunity. Prior to 1982, the state could not face civil lawsuits, and the state’s lawyers asked a Prince George’s County judge to dismiss the case on those grounds.

Attorneys representing the state filed roughly 200 motions to dismiss cases involving claims before July 1, 1982. The state has argued that the legislature must expressly waive the 40-year old immunity provision, something they said the 2023 law did not do.

Judges at the Circuit Court level granted four motions at the time the appeal was filed with the state’s highest court.

The Prince George’s County court denied the state’s motion without a hearing or explanation. But judges in Frederick County and Baltimore City have agreed with the state. Each dismissed cases under the sovereign immunity argument.

The Supreme Court’s ruling on the issue comes with a dollar sign attached.

Cases involving allegations occurring before 1982 comprise about 11% of the 12,000 cases that have been filed under the Child Victims Act. The 2023 law capped damages against the state at $890,000 per occurrence, but the definition of an “occurrence” is still being debated.

The full extent of the state’s potential liability has never been publicly stated. A rough estimate shows potentially budget-busting consequences.

If each plaintiff alleged just one occurrence and received the maximum award, the potential liability to the state could be about $11 billion. That estimate is nearly four times the structural budget gap projected for the fiscal 2028 budget to be introduced in January.

The potential payout could go up if a court or jury defines “occurrence” as each instance of abuse, rather than bundling instances based on any number of related circumstances. Settlements could reduce the potential liability.

If lawyers for the state are successful in getting the pre-1982 cases blocked, it would reduce the state’s potential liability by “more than a billion dollars,” the Office of the Attorney General argued in a filing earlier this year.

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During the nearly hour-long oral arguments Monday, justices seemed focused on whether the Child Victims Act waived sovereign immunity in an “unambiguous manner.” And if that was not the case, could legislative intent be used to rule that the General Assembly had in fact waived the immunity.

“If their intent was to undo sovereign immunity, isn’t it a little odd that they didn’t mention it?” Chief Justice Matthew Fader asked Massey during the hearing.

Massey argued that the General Assembly made it clear through setting caps and through its debates that it understood what it was doing and the potential costs.

But Fader wondered aloud if anyone in the legislature was aware of the immunity which ended in the 1980s and the passage of the Maryland Tort Claims Act.

“What it doesn’t necessarily indicate to me is an intent to undo a sovereign immunity protection that they seemingly were just unaware of,” Fader said. “And if that’s the case, if they thought that liability would go back before 1982 because they just weren’t aware that there was a sovereign immunity protection in place, that doesn’t seem to me to be an an intent to undo that sovereign immunity protection. It’s just an unawareness of it.”

Ryan Dietrich, an assistant attorney general, told the justices that nothing in the law could be interpreted as a waiver. Legislative intent would not be enough.

“I think what we heard from a friend on the other side about the legislative history is they say we think, we assume, and when we think and when we assume, that’s hallmarks of ambiguity,” Dietrich said.

“To the extent that the legislature did not speak clearly, unambiguously, and expressly, this court must err on the side of saying that sovereign immunity has not been waived, and send it back to the legislature to say, ‘What did you really mean?'” he said.