No. 93-075
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
CAROL LEE COSGRIFFE,
Plaintiff and Appellant,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Hon. Maurice R. Colberg, Jr., Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Donald W. Molloy (argued) and Roberta Anner-Hughes
(argued): Molloy Law Offices, Billings, Montana
James D. Huegli, Attorney at Law, Portland, Oregon
For Respondent:
Jerome J. Cate (argued); The Cate Law Firm,
Whitefish, Montana
For Amici Curiae:
Robert J. Emmons (argued) Great Falls, Montana
Jean E. Faure (Montana Trial Lawyers) Great
Falls, Montana
Rosemary Daszkiewicz (Northwest Women's Law
Center) Seattle, Washington
Joan Jonkel, Missoula, Montana
John L. McKeon, Anaconda, Montana
Submitted: September 16, 1993
Decided: November 24, 1993
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from an order of the District Court of the
Thirteenth Judicial District, Yellowstone County, the Honorable
Maurice R. Colberg, Jr., presiding, granting respondent Richard
Cosgriffe's motion for summary judgment. We reverse.
One issue is before this Court:
Whether 5 27-2-216, MCA, the statute of limitations for
claims involving childhood sexual abuse, violates the
state or federal constitutions because it provides for
retroactive application.
In January 1991, at the age of forty-one, the appellant Carol
Cosgriffe filed a complaint in District Court pursuant to 5 27-2-
216, MCA, against respondent, Richard Cosgriffe, her natural
father. Her complaint set forth several alleged instances of
sexual abuse by respondent which she alleges occurred between the
years 1965 and 1967, when she was between the ages of sixteen and
nineteen. The appellant alleges that due to respondent's abuse she
has sustained severe emotional and physical injuries, including
damage to her self esteem, an inability to maintain gainful,
continuous employment, drug and alcohol dependency, sexual
promiscuity, and an inability to maintain meaningful, long-term
relationships. Appellant further alleges that it was only after
consulting a psychiatrist and through counseling she discovered her
problems were caused by the alleged abuse and that the discovery
occurred only a short time prior to the filing of her complaint.
The respondent moved the court for summary judgment on the
following grounds:
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1. Section 27-2-216, MCA, violates the due process
requirements of the Fourteenth Amendment of the U.S.
Constitution.
2. Section 27-2-216, MCA, violates Article II, Section
17 (Due Process) and Section 31 (ex post facto laws) of
the Montana Constitution.
3. Section 27-2-216(3), MCA, isunconstitutionalbecause
it is vague, uncertain and indefinite.
Following a thorough briefing of the matter before the
District Court, the court granted respondent's motion for summary
judgment.
The legislative history indicates that 5 27-2-216, MCA, was
enacted in response to this Court's opinion in E.W. v. D.C.K.
(1988), 231 Mont. 481, 754 P.2d 817. In that case, this Court
stated:
While this Court is aware of the horrifying damage
inflicted by child molesters, it is not for us to rewrite
the statute of limitations to accommodate such claims
through judicial fiat. Such task is properly vested in
the legislature.
E.W., 754 P.2d at 821.
Section 27-2-216, MCA, enacted in 1989, states in its
entirety:
27-2-216. Tort actions -- childhood sexual abuse. (1) An
action based on intentional conduct brought by a person
for recovery of damages for injury suffered as a result
of childhood sexual abuse must be commenced not later
than:
(a) 3 years after the act of childhood sexual abuse
that is alleged to have caused the injury: or
(b) 3 years after the plaintiff discovers or
reasonably should have discovered that the injury was
caused by the act of childhood sexual abuse.
(2) It is not necessary for a plaintiff to
establish which act, in a series of acts of childhood
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sexual abuse, caused the injury that is the subject of
the suit. The plaintiff may compute the period referred
to in subsection (l)(a) from the date of the last act by
the same perpetrator.
(3) As used in this section, "childhood sexual
abuse" means any act committed against a plaintiff who
was less than 18 years of age at the time the act
occurred and that would have been a violation of 45-5-
502, 45-5-503, 45-5-504, 45-5-505, 45-5-507, 45-5-625, or
prior similar laws in effect at the time the act
occurred.
(4) The provisions of 27-2-401 apply to this
section.
Turning our attention to the due process argument, respondent
argues that § 27-2-216, MCA, as passed by the legislature,
improperly revives a claim after that claim is barred by the
conventional tort statute of limitations. In substanc& his
argument is that the retroactive application of the newly adopted
statute of limitations denies his federal and state constitutional
rights. We disagree.
The real question is whether the legislature has the power to
do what it did. Legislation repealing or extending the statute of
limitations, with the effect of reviving claims previously barred,
has consistently been upheld by the courts against due process
objections.
These cases take the view, which we believe is the better
view, that such legislation does not take away any defenses which
would have been a vested right in the defendant in the case. The
respondent in this case still has the affirmative defense that his
daughter knew or should have known within the statutory period that
her injuries were caused by the act of childhood sexual abuse.
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This is a fact question a jury must decide later; not one to be
decided by this Court. See Chase Security Corp. v. Donaldson
(19451, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628; see Sum &
Substance of Constitutional Law, 4th Ed. Van Alstyne, Karst and
Gerard (1986). Substantive due process arguments advanced by the
respondent fail when the question is examined under the applicable
restraints:
[T]he restraints on legislation imposed by substantive
due process as a source of constitutional protection for
interests not specifically identified by explicit
constitutional language could be summarized in a three-
part formula: the legislation must: (a) seek to achieve
a legitimate governmental purpose; (b) use means that are
rationally related thereto: and (c) be neither arbitrary
nor unreasonable in its effects.
Sum & Substance of Constitutional Law, at 25%. Here, the
respondent father concedes the legitimate governmental purpose of
the legislation and that the means used are rationally related.
The District Court in granting summary judgment held, and the
respondent argues, that the retroactive application of the newly
adopted childhood sexual abuse statute of limitations places an
unreasonable hardship and oppression on the respondent and that the
statute, 5 27-2-216(1)(b), MCA, basically destroys any limitations
of actions and is unreasonable. This argument was very ably
addressed by the Minnesota Court of Appeals. That court addressed
the retroactive application of a statute which provides for sexual
abuse claims and concluded:
Respondents' arguments are without merit. Indeed,
section 541.073 embraces a discovery rule, which, as
respondents assert, may toll the start of the statute of
limitations period for a long time after the abuse
incident. Nonetheless, the statute plainly reflects
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awareness of the difficulty sexual abuse victims have in
identifying and recognizing their injuries immediately.
Research shows victims of sexual abuse may repress the
memory of such incidents, and not discover the actual
source of their problems for many years. [Footnote
omitted.] In acknowledging this problem, the
legislature, by enacting section 541.073, limits the
possibility of the general statute of limitation barring
a claim for sexual abuse, and holds the sexual abuser
liable for his offenses. Because we are not in a
position to judge the wisdom of the legislature, where,
as here, the statute has a reasonable relation to the
state's legitimate purpose of affording sexual abuse
victims a remedy, we reject respondents' due process
claims.
K-E. v. Hoffman (Minn. App. 1990), 452 N.W.2d 509, 513-14.
Respondent's argument, based on the Fourteenth Amendment
prohibition of retroactive legislation when it divests any private
vested interest, is inapplicable, as the respondent has no "vested"
interest under these facts. The respondent argues that the running
of the previously-applicable statute of limitations vests him with
a right to be free from the appellant's claim after the expiration
of the conventional statute of limitations.
Montana follows Campbell v. Holt (1885), 115 U.S. 620, 6 S.Ct.
209, 29 L.EdZ. 483, in regard to due process and the retroactive
application of statutes of limitation. This Court cited and
explicitly adopted the majority holding of Campbell in Guiterman v.
Wishon (1898), 21 Mont. 458, 461, 54 P. 566, 567, where the Court
held:
Statutes of limitation, being somewhat arbitrary in their
nature, and founded in public needs and public policy,
may shorten the periods in which actions shall be
commenced, or may extend them, and yet not disturb vested
rights, or rights of property. Such is the established
rule of the federal courts since Campbell v. Holt, supra,
decided long subsequent to Gillette v. Hibbard, suura,
and upon this theory the codes of this state were
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adopted.
We determine that Montana due process is not violated by the
retroactive application of the statute here in question. The
propriety of the actions of the state legislature in addressing a
public need and a present public policy is not to be examined by
this Court where we have previously stated that the statute has a
reasonable relation to the legitimate purpose of the State.
The appellant, in arguing that § 27-2-216, MCA, was
constitutional, notes that it is up to this Court to determine the
statute's scope by determining the legislature's power, intentions
and application of the statute, noting that the legislature's
intent is to be followed if at all possible. Section l-2-102, MCA.
Further, whenever common law and statutes conflict, the statute
will take precedence. Section l-l-108, MCA.
The legislature has specific powers to extend the statute of
limitations. Western Holding Co. v. Northwestern Land and Loan Co.
(1941) I 113 Mont. 24, 120 P.2d 557. This Court, in Penrod v.
Hoskinson, M.D. (1976), 170 Mont. 277, 552 P.2d 325, indicated that
the legislature could extend the statute of limitations and apply
it retroactively to reverse barred claims. "'[O]ur Constitution
does not forbid the enactment of retrospective laws generally . .
. I II Penrod, 552 P.2d at 327; quoting Dunham v. Southside
National Bank of Missoula (1976), 169 Mont. 466, 548 P.2d 1383.
There are no constitutional or statutory obstacles to legislative
enactments of statutes relating to remedies that are retroactive in
operation.
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The trial court held the statute to be unconstitutional, as it
did not meet Montana's constitutional right to due process. In so
holding, it failed to concede that E.W. was decided before the
enactment of 5 27-2-216, MCA. In finding the statute
unconstitutional, the trial court incorrectly relied on Coady v.
Reins (1872), 1 Mont. 424, for the proposition that the expiration
of the statute of limitations is a vested right and that the
respondent had a right to rely on it.
This Court in its 1872 ruling in Coadv, held that "[t]he
statute, then, that must determine the right of the plaintiff to
bring this action, is the one in force when the same was brought."
Coadv, 1 Mont. at 429. Some 84 years later, this Court, for all
intents and purposes, reversed Coadv in our holding in Johnson v.
St. Patrick's Hospital (19bb), 148 Mont. 125, 417 P.2d 469. In
Johnson, we criticized w, impliedly overruled it and noted that
in 84 years the holding was never cited and that on the facts it
was clearly distinguishable from Johnson. This Court, in Grey v.
Silver Bow County (1967), 149 Mont. 213, 425 P.2d 819, cited the
Johnson case, and upheld the discovery rule in a medical
malpractice case. So that there is no question on what Johnson
held, we clarify the record and conclude that Johnson overruled the
Coadv decision.
We find no merit in respondent's argument that the statute is
unconstitutional on its face. Section 27-2-216, MCA, is presumed
constitutional. See Montana Milk Control Board v. Rehberg (1962),
141 Mont. 149, 376 P.2d 508. Respondent must prove the
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unconstitutionality "beyond a reasonable doubt." Here, respondent
has failed to meet that burden.
We hold that the plain language of § 27-2-216(1)(b), MCA,
expressly allows the appellant to bring claims for childhood sexual
abuse within three years of discovering that the injuries were
allegedly caused by the abuse. The statute clearly overturns the
rationale of our holding in E.W. and coincides with this Court's
suggestion that the legislature is the proper body to change the
law. The plain meaning of the statute cannot lead to an
interpretation that the respondent suggests, which is the
appellant's action accrued upon her awareness of the injury and
there is no requirement of discovery of the cause of the injury.
Courts throughout the country have applied the discovery rule
to cases where plaintiffs were aware of the sexual assaults at or
before the age of majority, but were unaware of the causal
connection between the abuse and the physical and psychological
problems they encountered. Annotation, Running of Limitations
Against Action for Civil Damages for Sexual Abuse of Child, 9
A.L.R. 5th 321, 343-47 (1993). In so holding, these courts have
structured a broad interpretation of the discovery rule, which
tolls the running of the statute until there is: 1) a discovery of
the injury; and 2) a discovery of the cause of the injury. See
Annotation, Running of Limitations Against Action for Civil Damages
for Sexual Abuse of Child, 9 A.L.R. 5th 321, 343-47 (1993).
We note that the discovery doctrine relied on in E.W. predated
the legislative enactment of the statute of limitation of § 27-2-
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216, MCA, which extends the statute of limitation until "3 years
after the plaintiff discovers or reasonably should have discovered
that the injury was caused by the act of sexual abuse." Here,
there is a genuine issue of material fact as to when the appellant
knew or should have known of her injury and its cause.
We reverse the District Court's ruling of summary judgment and
remand the case for trial.
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