Koenig v. Lambert

SABERS, Justice

(concurring in part and dissenting in part).

I concur except that I dissent on Issue II.

*907The question is simply whether the Legislature intended, SDCL 26-10-25 to apply to all acts of intentional conduct or only to those acts of intentional conduct occurring after the effective date of the statute.

It is obvious from a plain reading of SDCL 26-10-25 and 26-10-29 that the Legislature intended SDCL 26-10-25 to apply to all acts of intentional childhood sexual abuse conduct because SDCL 26-10-29 defines childhood sexual abuse as any act committed by defendant which act would have been a violation of SDCL ch. 22-22 (sex offenses) or prior laws of similar effect at the time the act was committed which act would have constituted a felony.”

SDCL 26-10-25 through 29 were passed as a whole in 1991. 1991 S.D. Session Laws, ch. 219, §§ 1-5. We look at the statute as a whole, as well as any enactments relating to the same subject when determining the intent of a statute. Kayser v. S.D. State Elec. Com’n, 512 N.W.2d 746, 747 (S.D.1994). “A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent.” 2A Sutherland, Statutes and Statutory Construction, § 46.05 (Singer ed., 5th ed. 1992). “[I]t is not proper to confine interpretation to the one section to be construed.” Id. “[I]f retroactive impact is clearly intended for some of the provisions of an act, it seems logical to assume that the legislature intended retroactive impact for them all.” Matter of Heuermann, 90 S.D. 312, 321, 240 N.W.2d 603, 608 (1976).

If the Legislature had not intended the statute to apply to all acts, there would be absolutely no reason to incorporate by reference all similar laivs prior to SDCL ch. 22-22.

Chapter 22-22 has the Penal Code of 1877 as its original source. Therefore, the Legislature intended SDCL 26-10-25 to apply retroactively to all prior laws of similar effect, even those dating back to 1877. If the Legislature had only intended SDCL 26-10-25 to apply to future acts of childhood sexual abuse, it would have simply defined the term and not incorporated by reference SDCL ch. 22-22 or prior laws of similar effect. Therefore, the Legislature obviously intended SDCL 26-10-25 to apply to this case.

SDCL 26-10-25 is a statute of limitation which provides a remedy for childhood sexual abuse up to three years after the victim should have reasonably discovered the injury or condition was caused by the act. Statutes affecting remedy or procedure are to be given retroactive effect. Lyons v. Lederle Laboratories, 440 N.W.2d 769, 770 (S.D.1989) (citation omitted); 2 Sutherland, supra at § 41.09 (procedural statutes are often applied retroactively); State v. Kelley, 588 So.2d 595, 597 (Fla.App. 1 Dist.1991) (procedural and remedial statutes may be applied retroactively). “Statutes of limitation are remedial, not substantive.” Lyons, 440 N.W.2d at 770 (citations omitted); see Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628, 1636 (1945) (as a matter of constitutional law, statutes of limitation go to matter of remedy, not to destruction of fundamental rights). “[Sjtatutes of limitation remain remedial even though their application may be dispositive of the outcome in a given case.” West v. John Morrell & Co., 460 N.W.2d 745, 748 (S.D.1990) (Sabers, J., concurring in result, Miller, C.J., joining). “A statute of limitations does not create or extinguish a right, but only places a limitation on a remedy which may be tolled or waived.” Millman v. County of Butler, 235 Neb. 915, 458 N.W.2d 207, 219 (1990) (citations omitted) (statute of limitations is an affirmative defense and burden is on defendant to prove such defense). Statutes of limitation do not operate as a substantive right, only as a remedy. Dishon v. Oliver, 402 A.2d 1292, 1294 (Me.1979).

Statutes involving practice, procedure, or remedies are to be applied retroactively. Howell v. Spokane & Inland Emp. Blood Bk., 114 Wash.2d 42, 785 P.2d 815, 818 (1990); see Lyons, 440 N.W.2d at 770. The court may look to a public policy to be furthered by retroactive application of the limitations period. See Howell, 114 Wash.2d 42, 785 P.2d at 818. Here, the Legislature provides the opportunity to establish the liability of those committing childhood sexual abuse and to compensate the victims. SDCL 26-10-25 and 29. The Legislature made the laws apply to all similar crimes similarly defined under previous laws. SDCL 26-10-*90829. “[T]he statute plainly reflects awareness of the difficulty sexual abuse victims have in identifying and recognizing their injuries immediately.” K.E. v. Hoffman, 452 N.W.2d 509, 513-14 (Minn.App.1990) (retroactively applying sexual abuse statute invoking discovery rule even though cause of action was originally time-barred). Therefore, SDCL 26-10-25 and SDCL 26-10-29 should be applied retroactively.*

Our remand to the trial court should include Issue II consistent with this dissent.

The majority's reliance on Hove, 501 N.W.2d at 369, is misplaced. In Hove, the Legislature deleted a phrase from the earlier statute which the majority held removed any intention for retroactive effect. 501 N.W.2d at 368. That is not the case here. The Legislature has plainly called for retroactive application of SDCL 26-10-25 when read in conjunction with SDCL 26-10-29. The discovery rule applies to all childhood sexual abuse crimes, even those committed under previous laws. SDCL 26-10-29. The majority's reliance on Shippen, 506 N.W.2d 82, is also misplaced. The Shippen suit was brought in 1989, before this discovery rule was adopted in 1991. 1991 S.D.Sess.Laws, ch. 219 § 1. Here, suit was brought after adoption of SDCL 26-10-25 and 29.