By Ethan Retan, CSBA Deputy General Counsel
The Legislature’s passage of Assembly Bill 218 in 2019 marked a significant and, for some local educational agencies, existential increase in financial exposure. AB 218 created a three-year “lookback period” — from Jan. 1, 2020, to Dec. 31, 2022 — in which claims for childhood sexual assault were no longer subject to any statute of limitations or the claims-presentation requirements of the Government Claims Act (GCA). As a result, LEAs were suddenly exposed to lawsuits based on incidents of childhood sexual assault alleged to have occurred decades before. Understandably, allegations that old are extremely difficult to defend, since key witnesses and evidence are often unavailable. And, successful or not, litigating such allegations is expensive, and, in many cases, has to be funded directly by LEAs due to the unavailability of insurance.
Many LEAs have chosen to challenge these lawsuits based on the constitutionality of AB 218. In doing so, those LEAs typically argued that, by waiving the GCA’s claims-presentation requirements, AB 218 created an unconstitutional “gift of public funds.” Among other circumstances, an unconstitutional gift of public funds occurs when the Legislature creates a new, retroactive liability for public agencies.
Prior to AB 218, the GCA required all victims of childhood sexual assault to file a timely claim with the appropriate LEA before the victims can file a suit for damages. Victims that did not timely file a claim were permanently barred from ever filing a suit. LEAs challenging AB 218 have argued that, by removing this claims-presentation requirement, AB 218 effectively created a new, retroactive liability since, before its passage, LEAs could not have been sued by assault victims who failed to comply with the GCA. This argument has had some success at the trial court level. For example, a trial court in Merced County recently agreed that AB 218 made an unconstitutional gift of public funds, a decision that is now being reviewed by the Fifth District Court of Appeals.
However, success has not been universal. In the first appellate decision on AB 218’s “gift of public funds” issue, the court in West Contra Costa Unified School District v. Superior Court found that AB 218 did not constitute an impermissible gift. The First District Court of Appeal found that:
- Although eliminating the claims-presentation requirement meant LEAs could be sued for previously barred claims, this did not qualify as a new “liability,” since the “liability” at issue — childhood sexual assault — existed well before AB 218’s passage and was unaffected by the GCA. As a result, AB 218 was not a “gift” of any public funds.
- Even if eliminating the GCA’s claims-presentation requirement was a gift, the gift would not have been unconstitutional because it served a valid public purpose. Specifically, the court felt that AB 218 benefitted the public welfare by providing relief to victims of childhood sexual assault. In making this determination, the court was required to, and did, give heavy deference to the legislative intent as reflected in the legislative history of the bill that AB 218 was of public benefit. As part of this analysis, the court was unpersuaded by any of the policy concerns emphasized by CSBA’s Education Legal Alliance (ELA) and other organizations that filed amicus briefs, since those same policy concerns had already been considered and rejected by the Legislature during the legislative process.
- Finally, the court found that, as political subdivision of the state, the district did not have standing to raise various due process arguments under the federal and California constitutions.
While other appellate courts, and the California Supreme Court, will most likely weigh in on this issue, LEAs should be aware of the West Contra Costa decision when assessing their own AB 218 claims. LEAs should also be aware that, due to their efforts and those of the ELA, the recent trailer bill, Senate Bill 153, requires the County Office Fiscal Crisis and Management Assistance Team (FCMAT) to provide recommendations on new, existing or strengthened funding and financing mechanisms that school districts, county offices of education and other local agencies could utilize in financing judgments or settlements arising from claims of childhood sexual abuse. CSBA is hopeful that these recommendations may eventually lead to additional financial support for LEAs struggling to fund AB 218 claims. In the meantime, CSBA and the ELA will continue to assist in AB 218 challenges and update members on new developments.
