Law Professors: Check Legal Blogs Before Adding Your Two Cents

The big legal news in Pennsylvania last week was of course the indictment of former Penn State assistant football coach Jerry Sandusky for allegedly sexually abusing at least eight children on or around Penn State. Being a civil litigator who has sued universities and has represented victims of sexual abuse on college campuses, I felt compelled to say something, so I wrote about Penn State’s potential liability in civil lawsuits brought by the victims. I reviewed and cited cases and statutes; you know, the stuff lawyers do when they want to get things right.

Then I read the news today, oh, boy.

In the New York Times:

“It’s a huge uphill battle to collect from the state,” said Saul Levmore, a professor and former dean at the University of Chicago Law School. “Plaintiff lawyers love to jump up and down about $100 million settlements, but there are a lot of hurdles in the way to that.”

Doriane Coleman, a professor at the Duke University School of Law, said that unlike the Catholic Church, which was the target of previous child abuse lawsuits, Penn State is a state institution and thereby should be protected by a doctrine known as sovereign immunity, which in essence protects state entities — and possibly state employees acting in the normal course of their jobs — from tort claims.

“I see this as very difficult to overcome,” Coleman said.

The esteemed law professors (I’ve referenced Coleman’s work favorably on this blog before) should have read my post: Penn State is not a “state institution.” Pennsylvania State University, like Temple University, Lincoln University, and the University of Pittsburgh, is part of Pennsylvania’s Commonwealth System of Higher Education, and is a “state-related university.”

Let Pennsylvania’s auditor general explain:

In 1855, the Pennsylvania legislature chartered the school that later became known as The Pennsylvania State University of the Commonwealth System of Higher Education. … The college became The Pennsylvania State University in 1953. Today, as part of the Commonwealth System of Higher Education, The Pennsylvania State University receives approximately 8 percent of its unrestricted fund revenues from the Commonwealth and is one of four state-related universities.

State-related universities don’t enjoy sovereign immunity. Doughty v. City of Philadelphia, 141 Pa.Commonwealth Ct. 659, 596 A.2d 1187 (Pa. Commw. Ct. 1991)(denying Temple University tort tmmunity). That’s in contrast to the universities in the Pennsylvania State System of Higher Education (PASSHE), which are immune. Poliskiewicz v. East Stroudsburg University, 113 Pa.Cmwlth. 13, 536 A.2d 472, 474 (1988).

[Addendum: In the comments, a smart "Guest" notes that Doughty was fact-specific to Temple University, and that the same analysis might not apply to Penn State. The commentator is right — Doughty is specific to Temple University — but there's reason to believe Pennsylvania courts would not recognize Penn State as having sovereign immunity. In 1999, for example, the Pennsylvania Supreme Court firmly held "PSU is not an agency of the Commonwealth" for purposes of exemptions from real-estate taxation. Pa. State Univ. v. Derry Twp. Sch. Dist., 557 Pa. 91, 94, 731 A.2d 1272, 1273 (1999). I've cut and pasted at the end of this post the pertinent part of their reasoning.

I don't see any reason why the analysis would be different for tort immunity, and I find it important that, although Penn State has been sued in the past, it has never really pushed the sovereign immunity argument.]

Jonathan Turley added his two cents:

Many of us are shocked by the failure of coaches, including Paterno to do more than simply notify the university. In the United States, there is a “no duty to rescue” rule that relieves citizens of liability for failing to come to the aid of other citizens. The no duty rule was the basis for the famous ruling in Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959) where a man watched another man drowned without taking any efforts to assist him. …

The statute of limitations in Pennsylvania is two years — a standard period. However, the state recognizes a discovery rule for injuries to the person so that the statute does not begin to run until the injured party discovers or reasonably should discover that he has been injured by another’s conduct. Fine v. Checcio, 870 A.2d 850 (Pa. 2005). Moreover, it does not run for ongoing torts, which could be alleged here. …

I find it inconceivable that Jonathan Turley, who represents some clients outside of his duties as a professor, actually wrote any of the above. Neither the “duty to rescue” nor the general negligence statute of limitations has anything to do with the potential case against Penn State.

On the “duty” issue, the kids were on Penn State property, many were witnessed by Penn State agents, and they were assaulted by Penn State’s actual or ostensible agent, so there’s no need to get to a “duty to rescue” — Penn State had a duty to maintain safe premises, and a duty to fire and to report to the police serial rapists. On the “statute of limitations” issue, Pennsylvania has a special statute for civil lawsuits “arising from childhood sexual abuse,” 42 Pa.C.S. § 5533. My previous post explained everything.

I usually defend law professors from critiques that their scholarship is useless — specialization is a good thing, I say, and someone needs to develop the details of the law even in rare and unique areas — but it’s awfully hard to maintain that stance when I see professors falling over themselves to make remarks about situations they know nothing about.

The lesson is obvious: spend a little time researching an issue before you talk about it, even if you’re hoping to get your name in the New York Times and even if you’re Jonathan Turley.

[Addendum: As referenced above, here's the bulk of the Pennsylvania Supreme Court's reasoning for why Penn State doesn't enjoy sovereign immunity for purposes of real-estate taxation. I presume the same analysis would apply to an argument they have sovereign immunity from tort liability:

The mere funding of an institution does not, however, make it an agency or instrumentality of the state. Mooney v. Temple Univ. Bd. of Trustees, 448 Pa. 424, 429-30, 292 A.2d 395, 398-99 (1972). The Commonwealth funds countless programs and institutions, but few of these are so closely aligned with the government as to be agencies thereof. The difficulty in determining the status of PSU arises from the fact that it is not merely funded by the Commonwealth, but in certain very limited respects it has governmental characteristics, while in other regards it is plainly non-governmental. This dichotomy is illustrated by, for example, the fact that PSU employees are included within the definition of 'state employees' under the State Employees' Retirement Code, 71 Pa.C.S. § 5102, but, for purposes of what is commonly referred to as the Right to Know Act, 65 P.S. §§ 66.1-66.4, which provides that public records of state agencies shall be open to examination by citizens of Pennsylvania, PSU has been held not to be a state agency. See Roy v. Pennsylvania State University, 130 Pa. Commw. 468, 568 A.2d 751 (1990). The courts below thoroughly described this as well as other aspects of the divergent manner in which PSU has, for various purposes, been classified as an agency or non-agency of the Commonwealth. Other than to illustrate the dichotomy, however, such an approach is not helpful to the analysis. This is because an entity's status as an agency or instrumentality varies, depending on the issue for which the determination is being made.

With regard to immunity from real estate taxes, we view the pivotal factor to be whether the institution's real property is so thoroughly under the control of the Commonwealth, that, effectively, the institution's property functions as Commonwealth property. PSU's property does not meet this test. The reason lies in the composition of the institution's board of trustees. When determining whether an institution is an agency or instrumentality of the government, we must consider whether the Commonwealth has majority control of the board. Mooney, 448 Pa. at 431, 292 A.2d at 399.

The board of trustees of PSU is not governmental in nature. It is composed of thirty-two members, only ten of whom are public officials. The latter consist of six members appointed by the governor, and, as ex officio members, the governor, the secretary of education, the secretary of agriculture, and the secretary of environmental resources. Thus, governmental representation on the board constitutes only a minority interest. Majority control rests in the hands of the twenty-two members that include the president of the university, nine members elected by alumni, and twelve members elected by various agricultural and industrial societies. In contrast, universities that are part of the State System of Higher Education, supra, are subject to the system's board of governors, all of whom are governmental appointees, 24 P.S. § 20-2004-A(a), and all members of the council of trustees of each of the institutions are appointed by the governor, 24 P.S. 20-2008-A (a), (b). Given the composition of the board of trustees of PSU, it is clear that the authority to control and dispose of PSU property is not within the purview of the Commonwealth. See 24 P.S. § 2533 (power to acquire and dispose of real property rests with the PSU board of trustees); PSU Corporate Charter (powers of trustees enumerated under the heading 'Incorporation'). It cannot be said, therefore, that the real property of PSU is so controlled by the Commonwealth as to fall within the latter's immunity from local real estate taxation.

Pa. State Univ. v. Derry Twp. Sch. Dist., 557 Pa. 91, 95–97, 731 A.2d 1272, 1274–1275 (1999).]

 

Tweet Like Email LinkedIn
  • MAB

    I’m glad to see you take on know-nothing professors who are misleading the public (and maybe even the victims) about a very important legal issue. At least Bill Pennington at the New York Times had the good sense to interview a knowledgeable attorney (Gerald McHugh), but why muck up the piece with wrong information from law professors who don’t practice or even seem to understand this area of law? It’s irritating, to say the least. It seems that legal blogs, particularly ones like yours, are much better sources of information than the New York Times. The Times would be wise to review legal blogs (and perhaps quote people like you) before adding in their two cents, too. Maybe then I would re-subscribe!

  • Guest

    Profs Levmore & Coleman’s misinformation is so misleading that the New York Times should print a retraction. You can’t trust the Times to get it right. That’s sad.

    • slevmore

      Let’s wait and see before maligning those who think there are “many hurdles” in the way of a successful suit. My comments to Pennington were somewhat more textured. We discussed the question of whether Penn State would in the end be deemed a state entity; note the involvement of the governor and also the fact , or theoretical idea, that if we think of sovereign immunity as a substitute for legal liability where there is a political check, then the university and state’s involvements with this front-page tragedy might make a good case for immunity. Moreover, a finding that an entity is not a state agency for one purpose is not dispositive of all others. In any event, there are other hurdles for a plaintiff to overcome here.

      • Anonymous

        Thanks for joining the discussion. There are indeed many hurdles to recovery, but no one familiar with Pennsylvania jurisprudence or the relationship between Penn State and the Commonwealth would have said that plaintiffs who sue Penn State are trying “to collect from the state.”

      • Guest

        Professor Levmore: If your comments to Pennington “were somewhat more textured,” as you claim here, then did Pennington make you look like an idiot by taking your comments out of context, or is it that your comments were simply idiotic? I’m sorry if I sound hostile, but it is extremely irritating when the New York Times and/or ignorant professors mislead the public, making voters and potential jurors think, for example, that the Commonwealth’s money is at risk when it is NOT! I’m sure you know a lot about whatever it is you teach in Chicago, but the article did not make you appear knowledgeable about Pennsylvania law or institutions. The article makes you look foolish. Did you actually say to Pennington, “it’s a huge uphill battle to collect from the state”? If so, are you at all familiar with Penn State or the case law surrounding state related institutions? I’m half surprised you didn’t call it UPenn, like Maureen Dowd did! No one is saying that there aren’t hurdles for the victims to overcome in this case. The problem is that you identified the wrong hurdle–or at least a very unlikely hurdle–as though it were the biggest issue in the case. If you were unprepared to discuss this high-profile case with the reporter, you could have said you prefer not to comment. Even better, you could have genuinely contributed to the discussion by doing some research beforehand and by choosing your words more carefully.

      • guest

        Your comments in the article struck a nerve. You accused plaintiffs’ lawyers of “jumping up and down” by jumping up and down about a weak hurdle. This is real life with real victims, not an issue-spotting exercise in class. Maybe your interview with Pennington was “somewhat more textured,” but that’s not how it came across and those quotes from you are offensive to those of us who represent victims. If you’d checked the commentary of legal blogs, I think you’d have seen nuanced legal analysis, not a bunch of people “jumping up and down.” I understand that it’s tough to be interviewed by the media… you never know what sound-bite they’ll pick, but you didn’t have to be so derogatory towards plaintiffs lawyers.

  • Guest

    Do law professors really “develop the details of the law even in rare and unique areas,” as you say? Or is it the litigators and judges who do that? Law professors report on those developments, and maybe they become experts on esoteric areas in which few would litigate, but I doubt they further the law in the way you suggest. I hate to sound like such an anti-intellectual, but the divide between those who “do” and those who “teach” is especially wide in a practical field like the law. I went to a theory-based law school (HLS) where few professors ever practiced, and while I appreciate how far the name of the school carries (it has certainly helped me professionally), I am appalled by how poorly they prepared us for the real world. The only classes worth a damn are clinicals.

  • Guest

    There are serious duty issues in any potential civil cases against PSU or Paterno that arise from the alleged Sandusky attacks. As for your claim that PSU had a duty to maintain a safe premises — this is not a typical premises liability case, for instance, involving a fire hazard or some other danger presented by the buildings and land on PSU’s campus. There is also a serious question as to whether Sandusky was an “ostensible” agent of PSU, even after he was no longer employed there, and was acting as an official of a separate organization, Second Mile, during almost all of the alleged assaults. Moreover, you seem to presume that PSU had a duty to report these incidents, as does the PA attorney general. I’m not so sure that duty exists under 23 Pa. C.S. Sec. 6313 — if the victim isn’t under the care of the institution being charged with a duty to report, that duty does not exist. I believe the prosecution (and any civil action based on a similar theory) will face difficulty showing that the Second Mile kids were under the care of PSU. Frankly, I would be surprised if PSU did not advance a defense theory, much as Prof. Turley has outlined. The victims were largely strangers to the PSU institution — none of them students or otherwise affiliated with the university — therefore, PSU’s legal obligation to protect them is greatly limited by the general rule that no one owes another a duty to rescue.

    As for the sovereign immunity issue, if there’s civil litigation over this mess, I imagine that will be a big issue, in addition to the duty questions outlined above. Admittedly, I’m not all that familiar with all the precise ways which PSU and the Commonwealth are wrapped up together, but the 1991 Commonwealth Court decision you cite regarding Temple is fact specific and undertakes a detailed analysis of the wording of the statute that enables Temple University to exist as a state-related institution. I see no broad statement within that opinion that any “state-related” university is therefore denied sovereign immunity. The question of PSU’s sovereign immunity will be governed by PSU’s relationship with the Commonwealth and the wording of the statute(s) creating PSU.

    You may be right that ultimately some claims survive the legal defenses available here. Typically, that is enough for plaintiffs’ lawyers to collect in civil litigation, as I am sure you are aware. But, let’s not pretend that these cases are without any significant legal issues.

    • Anonymous

      There are plenty of significant legal issues involved. There’s also no doubt that the professors quoted are clueless about all of those issues. I guarantee you not one of them knew anything about state-related institutions under PA law, they just presumed that the words “Pennsylvania State” in the school’s name means it’s a state institution. That sort of sloppy, off-the-cuff reasoning is fine at a dinner conversation and woefully inadequate when you’re holding yourself out as an expert.

      • Guest

        I think that’s a fair criticism of these “legal experts.” My diagnosis of the problem is that journalists and lawyers alike are loath to read the actual controlling legal authority in any given situation, even where it’s relatively easy to find.

        That’s why I like your blog. Very substantive discussions of the meat of the legal issues.

    • Guest

      You write: “As for the sovereign immunity issue, if there’s civil litigation over this mess, I imagine that will be a big issue, in addition to the duty questions outlined above.”

      Perhaps. If a judge uses sovereign immunity to protect Penn State from liability for facilitating child sexual abuse, thereby denying victims of child sexual abuse relief, I would bet that judge will lose his or her retention election. It’s rare to lose retention, but it might just happen with a high profile case with such sympathetic victims. Then, when the sovereign immunity issue makes its way through the appeals process, I would like to see what Justice Baer would have to say about it.

  • Xmeromotu

    The discussion of whether PSU would be entitled to claim sovereign immunity seems to me immaterial. There can be no claim of immunity unless the state actor (assuming, arguendo, that PSU defendants are state actors) was carrying out his official duties. I’m in Alabama, so I don’t know if y’all have exactly the same standards, but I would think that they would be pretty similar to independent contractor/employee distinctions or “frolic and detour” tort defense analysis. There are plenty of reasons to think that the SOL will not apply (other than “discovery rule” or concealment) as many victims are likely to STILL be minors, against whom the statute would not have begun to run. Also, there are seemingly endless possibilities for equal protection or civil rights claims, and I cannot imagine that any politician, including state court judges (whom we elect here), would be willing to block suits by these victims.

    • Anonymous

      The political question is a big one. PSU would have a hard time explaining to the public and the state why it thinks it shouldn’t pay here.
      Sandusky wasn’t acting within his duties, but everyone else was.

  • Xmeromotu

    Also, as far as collection of a damages award goes, were I a plaintiff’s attorney, I would much prefer the defendants to BE state actors so as to impose vicarious liability on the state. I have wondered since this whole thing blew up whether PSU would survive as an institution, never mind the football program. I am sad not only for the direct victims, but for all the faculty, staff, students and alumni, who are also innocent if indirect victims of the tragedy.

    • Anonymous

      They don’t need to be state actors for recovery. It’s better for negligence claims if they’re not. (If, however, they are state actors, then civil rights claims open up.) Penn State’s big enough to fund whatever verdict comes their way.

  • dose of reality

    Mr.Kennerly,

    Mr. Sandusky was not an employee of Penn State. It is disputable if Penn State officials were reportable parties. The children on campus were under the care of the charity and as per the law at the time needed to come before the responsible party. In 1998 the case was referred to the DA of Centre County. The DA of Centre County elected not to prosecute. In 1999 Mr Sandusky reitred. Many reitrees have access to organizations facilities as a benefit of being a retiree, it does not mean they condone or sanction the activities of the person accessing the facilities in secret. In 2002 Mr. Sandusky was banned from bringing children onto campus. The later case shows a school district catching Mr. Sandusky, although not in a sex act, in unnatural positions with children. I believe this went unreported. PSU at most “may” be responsible for the acts on it property after the 2002 act. I cant see more. In 1998 the DA elected not to act. Is Penn State responsible for that? In 2002, Mr. Sandusky was banned from bringing children. Please explain how you believe that Penn State is responsible for actiing when the DA did not for acts of a non-employee not on its property?

    • Anonymous

      You put too much stock in the idea of “retirement” — someone authorized to use your facilities as they please is still your authorized agent. Even if he wasn’t, the children were invitees / licensees of Penn State’s property. Even if they weren’t — at which point you’re assuming a court would actually deem the children invited onto Penn State’s property by their authorized user were trespassers! — Penn State was obligated to maintain safe premises. There’s no question Penn State had a duty to ensure its premises weren’t being used by a serial rapist and no question Penn State had a duty to protect the children there.
      As for the decision not to prosecute, criminal and civil law have differing standards. Just because a DA declines to prosecute a criminal act doesn’t mean everyone who knew of that conduct is absolved of responsibility for that act or subsequent acts.

      • dose of reality

        Please opine on which children Penn State has a responsibility to protect “as a result of” their failure to act? Would it be the ones pre-1998, post 1998 but pre 2002, or post 2002 which did not happen on their property. If they are not a reportable party, and lets just for this case assume they are not. They reported it to the charity, how would they then be liable for acts not on their property?

        • Anonymous

          Did you see where Victim 1 met Sandusky? At Penn State. Victim 2 was assaulted at Penn State. Victim 3 was ‘groomed’ in part through taking him to Penn State games. Victim 4 was assaulted on Penn State’s campus. Read the grand jury presentation — which only summarizes the allegations — and you will see how Penn State’s facilities and Sandusky’s influence at Penn State was integrated to his plans. You’re talking about a hypothetical in which Sandusky had no relationship with Penn State; in fact, their relationship was close and part of the crimes from the beginning and past 2002.
          Aid and abet criminal conduct and try dodging liability for the commission of subsequent crimes in the same pattern with the same methods. It sometimes works in the criminal context, and rarely in the civil.

        • dose of reality

          Mr. Kennerly, I was asking a series of questions. I was trying to assess where this all may lead. There is no reason to become offensive. I read Mr. Turley’s blog and Guests post below after I wrote mine. They said things similar to my first post as to Penn State may not have any duty. One of the things that Mr Turley said that I would like you to opine on is the SoL. He said there was a two year. You state, for simplification, till the victim is 30. If you are suing Mr. Sandusky could it be the till the victim is 30, while for Penn State it would be two as their “part” of what happened is not the same as what Sandusky did. I have read both SoL’s on the PA code. Has there been a case similar where a court has ruled?

        • Anonymous

          You’re not offended, you’re trolling. The statute of limitations is, as it states, for cases arising from childhood sexual abuse, and has been routinely used to sue the Catholic Church where its “part” was analogous to that of Penn State.

        • dose of reality

          That is untrue. If you must know I went there. Over the last week I have listened to the entire institution being maligned on the television and radio. I have heard irresponsible speculation from the national media stating that the mafia is running the athletic dept. and that the administration assisinated the Centre Co DA in 2005. I have watched an institution I care deeply for get turned inside and out. Yes I feel horrible for what has happened it makes me sick to my stomach to read it. Yes I read the 23 page presentment. Yes I researched the death of the DA. Yes, I even went to the PA code off of the Cornell Univ web site to read several relevant statues. But no… I am not trolling.

        • Marge

          “I have watched an institution I care deeply for get turned inside and out.”

          I’m sorry you’re having such a hard time coming to terms with the allegations against Sandusky and Penn State, but I don’t understand why anyone–except for victims themselves and others with similar real-life experiences–would take this so personally. I love my alma mater, which has been embroiled in Title IX issues and a lawsuit by the family of a young woman who was murdered on the campus, but its legal battles and the failures of its administration do not give me an identity crisis. I suppose I’ll never understand why Penn State is different.

          On the Statute of Limitations issue, you may want to read Max’s earlier post on Sandusky, if you haven’t already read it. He linked to it in the first paragraph of this post.

        • Guest

          Dose:

          As I recall, the statute of limitations that Max cites, quotes, and discusses in his other post is broadly worded to apply to any claims “arising out of” child sexual abuse. Any civil claim brought against PSU in the Sandusky scandal will clearly arise out of child sexual abuse. If the statute didn’t extend to anyone except the actual child abuser, then the purpose of the the special statute of limitations for these kinds of claims — to preserve civil claims against those with money, the Catholic Church earlier and PSU here — would be frustrated.

          As for your feelings about being an alum, I understand. The horrific acts of a single individual are tainting a very large institution, only a very small part of which was involved with this mess. I think that’s unfair. Although there are analogies to be drawn with the Catholic Church scandals, PSU is dealing with a single bad actor, who committed most of his crimes under the purview of a separate organization, albeit by using the cover of trust that was, until very recently, placed in all things Penn State. The Catholic Church scandal was pervasive, worldwide, likely involving thousands of individual crimes against children and hundreds of perpetrators, and hundreds more who knew of the abuse and did nothing. I think that Paterno, in particular, has borne an unfair share of the blame for not acting sooner, where the police, state prosecutors, the state welfare department, numerous Second Mile officials, and other community members were all aware of Sandusky’s sickness, as early as the late 1990s.

          However, as much as I would like to see PSU vindicated in the courts, I do not think that the long term interests of the university would be served by a drawn-out court battle over the existence or extent of its legal obligations under the circumstances. A quick, quiet settlement of any civil claims, along with public efforts to help Sandusky’s victims (and the victims of similar abuse everywhere) is the only thing that will allow PSU to move forward and restore its reputation.

          Fellow Penn Stater

  • RTKL

    Very, very well-done post.

    As Professor Turley’s former student, I am inclined to disagree with you — It would not shock me one bit to learn that Professor Turley wrote something that was half-baked, off-point, and ill researched.