LITTLE ROCK, Ark. - The Arkansas Supreme Court upheld a state law that gave alleged victims of childhood sexual abuse more time to file lawsuits, reversing almost two centuries of its own precedent that treated the statute of limitations as the grant of a vested right to defendants.
Saying that precedent “rests entirely on ungrounded judicial assertions,” the high court restored a lawsuit by plaintiffs who accused former pediatrician James Nesmith of sexually abusing them in his office, at home and at a church camp between 1995 and 2007. The lawsuit was filed after legislators in 2021 established a two-year window for filing abuse that otherwise would have been extinguished by the statute of limitations.
Trial and appeals courts dismissed the claims against Nesmith, ruling the Justice for Vulnerable Victims of Sex Abuse Act was unconstitutional under a string of Arkansas Supreme Court decisions going back to 1846. Those decisions equated the statute of limitations with the grant of a vested right to civil defendants that the legislature could not take away.
That precedent wasn’t based on anything in the text of the Arkansas Constitution or federal law, the state Supreme Court ruled in a Nov. 5 opinion by Justice Nicholas J. Bronni. Contrary to the court’s prior understanding, he wrote, “the expiration of a statute-of-limitations period does not confer a property right—or any other right for that matter.”
A statute of limitations reflects the balancing act legislators must perform between providing justice to plaintiffs and protecting defendants against lawsuits that are impossible to prosecute due to the passage of time, he wrote.
In contrast, “the judiciary’s role is narrow,” he said. “We do not legislate, resolve public policy disputes, execute the laws, or pass on the wisdom of legislation.”
Chief Justice Karen R. Baker dissented, saying “I disagree with the majority’s decision to upend 180 years of this court’s precedent.”
Justice Shawn A. Womack also dissented, saying a time limit for filing lawsuits “is not a mere procedural convenience; it ripens into a substantive right that the legislature may not retroactively take away.”
Justice Womack cited a friend-of-the-court brief filed by an 87-year-old retired widow who is being sued over alleged abuse going back 40 years at a facility that closed in 2006. The defendant isn’t accused of committing sexual abuse, but of allowing it to happen, he said.
“Stability in the law matters, especially when the court alters longstanding rules governing substantive rights and retroactive legislation,” he wrote.
Nesmith, a former Arkansas Children's Hospital physician, pled guilty to child molestation in 2018 and was sentenced to probation.
