(concurring).
I join the court’s opinion, except for its conclusion that Jacobs has a protectable property interest in a statute of repose under the Due Process Clauses of the United States and Minnesota Constitutions. With respect to Part II of the court’s opinion, therefore, I concur only in the result.
We recognized nearly 130 years ago that statutes exempting a party “from the servitude of certain forms of action” do not create vested rights. Kipp v. Johnson, 31 Minn. 360, 362, 17 N.W. 957, 958 (1884); see also id. at 363, 17 N.W. at 959 (stating that “[n]o man has a vested right to a mere remedy, or in an exemption from it ” (emphasis added)). In Donaldson v. Chase Securities Corp., we reiterated the rationale from Kipp, concluding that statutes of limitations “are a matter of legislative policy or expediency [that] may be changed as legislative wisdom dictates.” 216 Minn. 269, 276, 13 N.W.2d 1, 5 (1943). The Supreme Court of the United States affirmed our decision in Donaldson, holding that, despite the running of a prior statute of limitations, the defendant “had acquired no immunity from this suit that has become a federal constitutional right.” Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 316, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945). The Court explained that the protections provided by a statute of limitations continue “only by legislative grace,” and “[t]heir shelter has never been regarded” as a fundamental or natural right. Id. at 314, 65 S.Ct. 1137.
As the court states, the scope of protection provided by the Due Process Clause of the Minnesota Constitution, Minn. Const. art. I, § 7, is identical to that pro*837vided by the Due Process Clause of the United States Constitution, U.S. Const, amend. XIV, § 1. See Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn.1988) (addressing the constitutionality of the statute of repose in Minn.Stat. § 541.051, the same statute at issue here). Yet rather than discussing the precedent of the Supreme Court or this court, the court relies on cases from other states analyzing statutes of repose under the unique language of their own state constitutions. See M.E.H. v. L.H., 177 Ill.2d 207, 226 Ill.Dec. 232, 685 N.E.2d 335, 339 (1997); Harding v. K.C. Wall Prods., Inc., 250 Kan. 655, 831 P.2d 958, 967-68 (1992); Givens v. Anchor Packing, Inc., 237 Neb. 565, 466 N.W.2d 771, 773-74 (1991); Sch. Bd. of Norfolk v. U.S. Gypsum Co., 234 Va. 32, 360 S.E.2d 325, 327-28 (1987). Moreover, in the only one of these cases discussing federal due process principles, the Kansas Supreme Court concluded that there is no protectable property right in a statute of repose under the United States Constitution. See Harding, 831 P.2d at 967 (citing Donaldson, 325 U.S. at 314, 65 S.Ct. 1137). Consequently, neither Jacobs nor the court have identified a single case in which a court has held that a defendant has a protectable property interest in a statute of repose defense under the United States Constitution. That absence of authority should be fatal to Jacobs’ claim.
Nonetheless, the court relies on Weston v. McWilliams & Associates, Inc., 716 N.W.2d 634 (2006), in concluding that Jacobs has a protectable property right in a statute of repose defense.1 In Weston, we noted that, unlike a statute of limitations, a statute of repose is a substantive limit on a cause of action. Id. at 641. But characterizing a statute as “substantive ” no more automatically invokes substantive due process than characterizing a statute as “procedural ” automatically invokes procedural due process. If the substantive label were significant for due process purposes, then every time the Legislature modifies or eliminates any cause of action, it would be necessary to scrutinize the Legislature’s action for compliance with substantive due process. That, however, has never been the law in Minnesota, even though there is no question that altering or eliminating a cause of action constitutes a “substantive” change to the law.
More important, in my view, is that a statute of limitations and a statute of repose share identical qualities: they are both creatures of statute and affirmative defenses to otherwise valid causes of action. Because a statute of repose is equally the product of legislative grace, I see no reason why the rationale and result of Donaldson and Kipp do not apply to a statute of repose. Given their similar function and origin, I also do not understand why a statute of repose defense can “ripen[ ] into a fixed right,” but a statute of limitations defense cannot. Other than citing to Weston, the court cannot provide a reason either. Accordingly, because the court’s conclusion is contrary to well-settled case law in this state and other jurisdictions, I would conclude that Jacobs did not have a constitutionally-protected property interest in its statute of repose defense.
. To be sure, the court also identifies the promotion of finality and the inequity of requiring a party to litigate stale claims in finding a protectable property right in a statute of repose defense. Both of these interests, however, are equally applicable to a statute of limitations defense, and indeed, the policy of avoiding stale claims through a statute of limitations was identified in Donaldson, see 325 U.S. at 314, 65 S.Ct. 1137, years before Minn.Stat. § 541.051 was enacted.