dissenting:
I respectfully dissent because I believe the plaintiffs’ claims were barred by the 1991 statute of repose, which barred anyone over the age of 30 from bringing an action for damages based upon childhood sexual abuse. Each of the plaintiffs here reached the age of 30 before the statute of repose was repealed in 1994. While the majority relies upon one Fifth District case, Doe v. Diocese of Dallas, 379 Ill. App. 3d 782, 885 N.E.2d 376 (2008), I agree with the analysis set forth in a case decided by another Fifth District panel, Galloway v. Diocese of Springfield, 367 Ill. App. 3d 997, 857 N.E.2d 737 (2006).
In Galloway, the court recognized that the Illinois Supreme Court in Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 749 N.E.2d 964 (2001), rejected the vested rights approach to retroactivity and adopted the legislative intent approach of the United States Supreme Court set forth in Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). Galloway, 367 Ill. App. 3d at 999-1000, 857 N.E.2d at 739-40. Under this test, “if the legislature has clearly indicated what the temporal reach of an amended statute should be, then, absent a constitutional prohibition, that expression of legislative intent must be given effect.” Commonwealth Edison, 196 Ill. 2d at 38, 749 N.E.2d at 971. The supreme court recognized in Commonwealth Edison, however, that cases decided under the vested rights approach to retroactivity remain relevant insofar as they define interests protected from legislative interference by the due process clause. Commonwealth Edison, 196 Ill. 2d at 47, 749 N.E.2d at 976.
Prior to its decision in Commonwealth Edison, the supreme court decided the question at issue in the instant case, namely, whether the 1991 statute of repose applied to the plaintiffs’ action where the time limit was not in effect when the abuse occurred and was repealed before the action was filed. M.E.H. v. L.H., 177 Ill. 2d 207, 685 N.E.2d 335 (1997). The supreme court found that the defendant in that case had a vested right to invoke the limitations period as a defense and that this right could not be taken away without offending the due process protections of the state’s constitution. M.E.H., 177 Ill. 2d at 214-15, 685 N.E.2d at 339.1 agree with the Galloway court that M.E.H. remains good law. Galloway, 367 Ill. App. 3d at 1000, 857 N.E.2d at 740. While Commonwealth Edison “switches the focus of the first step of the retroactivity analysis from ‘vested rights’ to legislative intent, it did not overrule the ruling in M.E.H. that taking away the right to invoke the statute of repose as a defense to a cause of action is constitutionally prohibited.” Galloway, 367 Ill. App. 3d at 1000, 857 N.E.2d at 739. Thus, I would find that the plaintiffs’ claims were barred by the statute of repose and cannot be revived.
In addition, I would find that the plaintiffs did not bring suit within a reasonable time period after the period of repose went into effect and that the statute of repose was not tolled by the plaintiffs’ claims that their memories of abuse were suppressed. M.E.H., 177 Ill. 2d at 217, 685 N.E.2d at 340. Finally, I would find that the plaintiffs failed to prove that the period of repose should be tolled due to fraudulent concealment of the abuse by the defendants. See Clay v. Kuhl, 189 Ill. 2d 603, 613, 727 N.E.2d 217, 223 (2000). Therefore, I would affirm the trial court’s decision granting the defendants’ motions to dismiss and must dissent.