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Colorado high court skeptical of open window on sex abuse claims

The Child Sexual Abuse Accountability Act allows remedies for abuse committed between 1960 and 2022, but some justices indicated it may violate the Colorado Constitution's retroactivity clause.

(CN) — A Colorado school district and a former basketball coach asked the state Supreme Court on Tuesday to uphold a lower court’s finding that the Colorado Constitution blocks victims of child sex abuse from bringing their claims under a new law.

Beginning when she was 14 years old in 2001, Angelica Saupe’s basketball coach at Ridgeview High School in Aurora, Colorado, groomed and sexually exploited her, forcing her to give him oral sex more than a hundred times before she graduated. Coach David O’Neill was 20 years older than her.

Following the passage of the 2021 Child Sexual Abuse Accountability Act, Saupe sued Aurora Public Schools and O’Neill in January 2022 in the District Court for Arapahoe County.

The law was meant to allow victims to bring forward civil claims for child sex abuse that occurred between Jan. 1, 1960, and Jan. 1, 2022.

Eighteenth Judicial District Judge Elizabeth Beebe Volz dismissed the case last August after finding the state Constitution’s retrospective clause blocked Saupe from using the new law. Saupe appealed and Aurora Public Schools moved for the case to be heard before the state Supreme Court.

“This is a very straight-forward case,” attorney Stuart Stuller with the Boulder firm Caplan and Earnes argued on behalf of the school district. “We don’t show disrespect to the survivors of childhood sexual assault. I recognize that the Constitution places limits on what the General Assembly can do, the General Assembly can do many things but what it can’t do is take the legislative priorities of 2022 and transport then back to the Eisenhower administration.”

Stuller said the state Constitution’s retrospective clause works in tandem with the federal ex post facto clause.

“There is no exception for people who are particularly worthy of punishment,” Stuller said.

Associate Justice Monica Márquez, appointed by Democratic Governor Bill Ritter, asked about the law’s intent.  

“What’s so challenging here is that but for the Legislature opening this window, many childhood victims would not have the opportunity to seek justice for the harms that they have suffered,” Márquez said. “Help me feel better about that.”

Stuller countered that previous state laws extended the statute of limitations, creating opportunities for victims to redress their wrongs.

“Your position explains why we have a retrospective law, it’s unfair,” surmised Associate Justice Richard L. Gabriel, appointed by Democratic Governor John Hickenlooper.

Saupe’s attorney, Robert Friedman of the Washington firm Gupta Wessler, asked the panel to consider the state Constitution’s history. Colorado, he argued, shared its retrospective clause with Missouri, Ohio and New Hampshire.

“In the Toledo City Schools case which was decided in 2014, answering the same question I’m presenting to this court, the court said by 1851 when the Ohio Constitution was ratified and 25 years before the Colorado Constitution was ratified, it was already established that unconstitutional rights operated on the vested rights of individuals and private corporations,” Friedman said. “The original meaning is that it does not apply to public bodies.”

Friedman also argued that defendant O’Neil could still face criminal penalties and that the statute of limitations had not yet run out for a civil suit.

“At the time that A.S. was abused, the statute of limitations remained open first until the child turned 18, and then until the child was emotionally or psychologically capable of acknowledging the harm inflicted on her,” Friedman argued, referring to the plaintiff by her initials. “The defendant is never going to know when that subjective realization happens.”

Two judges seemed unsettled by Friedman’s argument that the Legislature could simply override the retrospective clause in the name of public good.

“How does that not write the retrospectivity clause right out of the Constitution?” Gabriel asked. “Basically you’re saying that our friends across the street, with great respect to them, can say the public interest justifies this and the Constitution be darned?”

Friedman said judicial review provided an adequate check. Associate Justice Márquez jumped in.

“I share the concern of Justice Gabriel here. You are conflating a constitutional mandate and essentially collapsing it into nothing more than a rational basis review,” Márquez said. “That I find disturbing.”

The panel included Hickenlooper-appointed Associate Justices Carlos A. Samour Jr., William W. Hood III, and Melissa Hart, as well as Maria E. Berkenkotter, appointed by Democratic Governor Jared Polis. Hickenlooper-appointed Chief Justice Brian D. Boatright sat center.

The court did not indicate when or how it would decide the case.

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