Illinois childhood sexual abuse victims were given a chance to bring their claims for injuries by an opinion by the Illinois Appellate Court, Fifth District that was released March 7, 2008, Doe v. Diocese of Dallas, 379 Ill. App. 3d 782, 885 N.E. 2d 376. Essentially the court held that the statute of limitations for bringing a claim for childhood sexual abuse that became effective on July 24, 2003, and which in summary increased the statute of limitaions to 5 years from “the date the person abuse discovers or through the use of reasonable deligence should discover both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the childhood sexual abuse, 735 ILCS 5/13-202.2, could apply to a claim that the previous statute of limitations had already barred. The Illinois legislature passed this legislation in direct response to an opinion by the Illinois Supreme Court in 2000 which held that there is no requirement that a plaintiff must know the full extent of his injuries before the statute of limitations begins to run, and further held that Illinois law presumes an injury from an allegation of sexual abuse, Clay v. Kuhl, 189 Ill. 2d. 603, 727 N.E. 2d 217 (2000).
In 2006 two different Illinois Appellate Court decisions intrepretting 735 ILCS 5/13-202.2, reached the same conclusion “once a statute of limitations has expired, the defendant has a vested right to invoke the bar of the limitations period as a defense to a cause of action. That right cannot be taken away by the legislature wothout offending the due process protections of our state’s constitution.” Kuch v. Catholic Bishop of Chicago, 366 Ill. App. 3d 309, 313, 851 N.E. 2d 233, 236 (2006); see also Galloway v. Diocese of Springfield, 367 Ill. App. 3d 997, 857 N.E. 2d 737 (2006). Both cases cited to a 1997 decision by the Illinois Supreme Court that held that once a statute of repose has extinguished a cause of action, defendant has a vested right under the due process clause of the State Constitution to invoke the statutory repose period, even after the repose period was abolished by the legislature. M.E.H. v. L.H., 177 Ill. 2d 207, 685 N.E. 2d 335 (1997).
The issue the court recently wrestled with In Doe v. Diocese of Dallas, (2008), was statutory retroactivity and whether to use the “vested rights approach” or the “legislative intent approach.”
The court described the vested rights approach as “the law applied was that which was in effect at the time of the appeal unless the use of that law somehow interfered with a vested right…., with the vested rights approach the legislature’s intent regarding retroactivity was not relevant.” The court stated that “under the legislative intent approach, the presumption is against retroactive application of the statutory changes unless the legislature clearly indicates an intent that the amendments be so applied.”
735 ILCS 5/13-202.2(e) clearly states: “The changes made by this amendatory Act of the 93rd General Assembly apply to actions pending on the effective date of this amendatory Act of the 93rd General Assembly as well as actions commenced on or after that date.” The Doe court in a thoughtful opinion by Justice Chapman recognized that the Illinois Supreme Court had already adopted an approach to the conflict between the “vested rights” and “legislative intent” approaches to dealing with statutory retroactivity by formally adopting the approach taken by the U.S. Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244 (1994), see Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 749 N.E. 2d 964 (2001).
The Doe court stated: “Under the Ladgraf approach, we must first determine if the legislature expressed its intent relative to retroactivity. If the legislature’s intent is clear, we must give effect to that intent unless constitutional principles otherwise prohibit the application….the vested rights inquiry is now a default rule that need only be considered in the absence of of express legislative intent regarding retroactivity.” The court held that if a court detemines that retroactive application violates due process, the court must go further “to determine if retroactive application unreasonably infringes on rights implicated.”
The Doe court citing Commonwealth Edison stated: ” In assessing the fairness of a retroactive application, relevant considerations include (1) the legislature’s motive in enacting the statutory change, (2) the period of retroactivity, and (3) whether the parties detrimentally relied on the prior version of the law.” The Doe court held that legislature’s intent was to correct previously existing law, and thus favored retroactive application, but that the period of retroacivity was long, e.g. 13 years, and thus weighed against retroactivity. However, they found that the defendants cannot claim to have detrimentally relied on the statute of limitations and this favored retroactive application. In conclusion the Doe court stated: “In balancing fairness considerations and the reasons for and against the retroactive application of the statutory change, we conclude that the retroactive application does not unreasoonably infringe on any due process right.”
This opinion is very encouraging news for victims of childhood sexual abuse! It also is a very lucid analysis of a judicial approach that deals with statutory retroactivity that harms neither the victims nor our state constitution. On March 20 2007, I posted on this blog about the unfairness and inflexibility of the “vested rights approach”, and I remain hopeful that the Illinois Supreme Court when it addresses this issue will follow the Doe court’s lead.