Federal judge plans to send Child Victims Act question to Maryland Supreme Court

Decades ago, a probation agent allegedly warned a Mormon church in Prince George’s County that a man they brought on as a minister was not allowed to be in the presence of children.

Frederick Edvalson had been convicted twice of sexually abusing minors, and the terms of his probation barred him from being around kids, according to a lawsuit filed in U.S. District Court in Greenbelt.

At the church in Camp Springs, Edvalson befriended a girl, gained her trust and sexually abused her, the federal complaint says. He pleaded guilty to a felony sex offense in 1985, online court records show, and earned the condemnation of Prince George’s top prosecutor at the time, who said Edvalson told the girl “he was giving her special religious training.”

Though the girl got justice in criminal court against Edvalson, who died years ago, “the church itself, who let this known predator hang around kids, has never been held to account,” said her attorney, Nathaniel L. Foote. He filed the woman’s lawsuit last year under a nascent, but groundbreaking, state law.

While much of the attention around Maryland’s Child Victims Act has focused on the Catholic Church, the estimated hundreds of lawsuits filed under the act target defendants that also include schools, correctional facilities and other religious institutions. The case against the Mormon church, in particular, is at the heart of a legal puzzle that lawyers and judges are piecing their way through as the issue heads to its eventual destination: the Maryland Supreme Court.

The Church of Jesus Christ of Latter-day Saints asked a federal judge to dismiss the complaint, arguing the child victims law is unconstitutional. While that request is similar to one already made by defendants in several civil cases in state courts, the federal judge has decided to swiftly send the question to the state Supreme Court.

Attorneys for the church declined to comment.

In the state cases, two hearings have been held at the circuit court level and judges have found the law constitutional. That’s sparked promises of appeals, but the direct-action plan of U.S. District Judge James K. Bredar in the Mormon church case is now expected to kick off another path to the Maryland Supreme Court.

Whether that speeds up the timeline and gets the constitutional question settled faster, how quickly that could happen and even what steps the state’s appellate judiciary will take to decide such matters send the new law into uncharted territory.

Robert K. Jenner, who represents a man who sued the Catholic Archdiocese of Washington in Montgomery County and a woman who sued the Key School in Annapolis in federal court, expects the question from Bredar to expedite the process.

“The Supreme Court can literally get this question on its desk in two weeks, set a briefing schedule and set an oral argument date,” Jenner said.

Kathleen Hoke, a law professor at the University of Maryland Francis King Carey School of Law, thinks the high court will hold off on the federal court’s question and take up one of the state court appeals.

“State supreme courts don’t like to answer questions in the abstract,” Hoke said.

Attorney John J. Beins, who is behind a woman’s federal lawsuit against the Friends Community School in College Park and the Religious Society of Friends, suggested the high court may split the difference.

“There’s a good chance that multiple cases will be appealed or certified to the Supreme Court of Maryland and then consolidated for one opinion as to the constitutionality of the CVA,” Beins said.

The lawsuit against the Mormon church is one of at least three federal complaints in Maryland brought under the state Child Victims Act that went into effect Oct. 1. Unlike in state court, federal judges have the authority to reserve ruling on a legal issue involving state law if they believe the question is novel and that there isn’t any precedent to rely on in making a decision. Under those circumstances, federal judges can “certify” questions to the state’s highest court.

Bredar proposes doing just that. In an opinion filed Monday, he wrote that he intended to send to the Maryland Supreme Court the question of whether the Child Victims Act runs afoul of the state constitution. He gave attorneys in the Mormon church case two weeks to critique the way he phrased the question.

“The constitutionality of the CVA is dispositive to the question of whether the Plaintiff’s claims are time-barred. And there has been no appellate decision on the CVA’s constitutionality — unsurprisingly, as the statute is less than a year old,” Bredar wrote.

Maryland lawmakers included in the child victims law a provision allowing for a mid-lawsuit appeal to settle the issue, raised by the bill’s opponents, of whether the General Assembly had the authority under the Maryland constitution to eliminate a statute of limitations on filing lawsuits. Appeals from state Circuit Court go to the intermediate Maryland Appellate Court, but the appealing party can simultaneously ask the state Supreme Court to take the case.

Earlier this month, a Prince George’s judge denied the Washington archdiocese’s request to dismiss on constitutional grounds a proposed class-action lawsuit by three men alleging sexual abuse by clergy and other diocesan employees. A Harford County judge considering an abuse lawsuit Wednesday filed against the local board of education Board of Education also found the Child Victims Act constitutional.

The Washington archdiocese has filed notice of its intent to appeal, and Harford schools are expected to follow suit. Debate about the child victims law in a lawsuit against the Washington diocese is set to go before a Montgomery judge March 29.

Survivors are eager for a definitive ruling, their lawyers say.

“What’s most important for these survivors is that they get an answer to the question as to whether or not the policy of the state of Maryland is to protect survivors or to protect perpetrators and their enablers. That’s the question,” Jenner said. “And these survivors have waited their whole lives for access to justice.”

In the interest of speed, Jenner asked a different federal judge to certify a question in the lawsuit against the Key School, which mirrors complaints he filed in Anne Arundel County Circuit Court against the private school. Attorneys for the defendant pushed back on the request, and that federal judge has yet to rule.

“Many of our survivors are in their 70s or 80s,” said Jenner, referring to other clients who survived sexual abuse as children. “In their case, justice delayed is truly justice denied.”

Jeffrey J. Hines, an attorney for Key School, did not address allegations of “rampant sexual abuse” involving staff.

“While we await the forthcoming appeals from two outstanding state trial court rulings on this issue, Key School will continue supporting victims and providing an exceptional education to their students,” Hines said in a statement.

Almost two decades after the alleged abuse at Key School, and roughly 30 miles west, a teacher, soccer coach and summer camp leader at the Friends Community School groomed a third grader, according to the federal lawsuit. The complaint says Fernando Asturizaga sexually abused a girl in the school, at camp, on a field trip to the National Zoo and a fifth grade class trip to New York City.

“Asturizaga’s inappropriate behavior toward minor students was common knowledge and discussed frequently amongst the FCS faculty,” the complaint said. “Yet not one FCS head of school, teacher, employee, or trustee ever took any action to stop Asturizaga or report his inappropriate behavior to the authorities during the time that Plaintiff was a minor.”

In 2012, a Montgomery County jury convicted Asturizaga of 18 counts, including rape, related to his abuse of the girl whose mother reported concerns to the school. The presiding Circuit Court judge sentenced him to 168 years in prison.

The girl’s mother didn’t get to see Asturizaga convicted. She disappeared in 2000, the complaint said, shortly after telling Asturizaga that she planned to report him to the police, according to the complaint. Authorities never found her body, but a 2001 court order declared her legally dead.

Montgomery police in 2018 named Asturizaga a “person of interest” in her suspected killing. He hung himself in his prison cell in Cumberland hours after the announcement.