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).]