please the court my name is david wells and i represent the diocese of bellville in this case the plaintiffs asking the court to ignore over one hundred years a judicial precedent to ignore the clear legislative history for two thousand and three amendment and took totally disregard the constitutional due process rights of the defendants in this case the plaintiffs claims for sexual abuse  barred by the statute of limitations in the one nine hundred ninety three amendment to the childhood sexual abuse act in two thousand and three the illinois legislature lengthened the limitations period in childhood sexual abuse but this limitation period should not be retroactively applied to revive plaintiffs time barred claims for childhood sexual abuse for over one hundred years the legal precedent has been followed by the courts in the state of illinois let's talk about that legal precedent and eight hundred ninety five in the case of the board of education versus blodgett this court said the immunity from suit which arises by operation of the statute of limitations is says valu cases permitting the two thousand and three amendment to retroactively revive plaintiffs time her claims would affect a sea change in the law that has been part of illinois approximately one hundred fifteen years to make this change is neither justified or appropriate let me move on if i may to the legislative history because the legislative history of human meant supports the construction but the legislature did not intend to wreck practically revive time barred claims the amendment was sponsored by representative james brosnahan and he stated on the record immediately prior to the vote in july two thousand and three as follows and i quote i want to make it perfectly clear as far as the legislative intent what i am not trying to do with this bill is to revive any causes of action that were the statute of limitations has already expired he goes on to say i want to be perfectly clear on that i think the case law in this state of illinois is clear continuing he says for purposes of legislative intent the intent is not to revive causes of action that have already expired he goes on to refer to the vested right principle he says i think that is a vested right that people have once the statute has expired and we're not trying to do that that's what he said on the floor you find the stairs in them bigger as mr wells says that where we're into the legislat but i think it's instructive because if you consider the tests under our commonwealth the first prong being trying to ascertain legislative intent i think the legislative history is instruct i guess i don't completely understand that answer i mean it is there are an ambiguity is there something that i mean typical statutory construction would be the language first right yes and is there some part of the language that and i'm not doubting that the that's what the representatives but i am wondering how we get there well we get there because of the claims by the pla this case that what the legislature intended to do was to reach back and revive time barred claim so that's that's what that's the argument by it made by the plaintiff in this case so to re having that intent stated explicitly within the body of the statute but that isn't the first prong of of the commonwealth case whether the statute expressly states that there are that they are retroactive that's correct if there's if there's a i guess my point is is simple one it's it's not simply delving into the statute to determine legislative intent but looking at the statute to see if there's an actual express statement relative to a rea plaintiffs would argue that section he says the sex of the section applies to actions ending on the effective date of this a mandatory act as well as to actions for minutes on or after that date yes and why is that but i think to the extent that it is that it can be retroactive to the extent it applies to causes of action that have accrued on july twenty fourth two thousand and three but it lying because prior precedent dictates you can't read whatever it means it doesn't mean you revise marred claims that's correct and this court has looked at that language as it was  that and that's my point my point is that the statute itself has to have some indication of retroactivity or not and if it's and if we can glean it from the statute itself i mean assume except in your position is correct that there is not anything in the statute that would indicate that retroactively was presumed i mean we really don't have any reason to go into the legislative the base that that was my point and then and i don't i don't want to oversimplify your position but i would so to see whether i understand your position as i understand your position is that you're not looking at this as if it's a substantive matter right it's a procedural matter that would typically be open to retroactivity but i think i think your position is that the applying retroactivity in this instance in this instance would have constitutional ramifications to it because the statute had already run is that is that where you read or were you saying that this isn't a procedural statute in could never be applied retroactively well if we want to look at the rationale and happening which adopts the procedural substantive approach and is i understand your opinion and have any you can you say that if it's a substantive then it cannot be retroactive and i cannot think of anything more substantive and the reviving of a bar house of action so we're a little dirt and we are in a little different reprised was you're not arguing that vehemently that this isn't procedural but you're saying that even procedural there are you still have to go to the next step would be constitutional analysis and that's something that has been prior barred prior because of the time running would implicate due process correct it would be inappropriate under the because of the due process clause ok and taking depriving us  right property that we had yes under let me talk a little bit about commonwealth edison because i think the language used there may be helpful and then commonwealth edison this court specifically refers to the henry case a decision by justice raman and they quoted specifically from the henry case and language by joseph freeman where they said and immunity from prosecution is in a suit is it is valuable to the one party has the right to demand or prosecute the suit has to the other and then they say this court goes on to say put simply the legislature lacks the power to reach back and breathe life into a previously barred claim and that simply is our position that the legislature edison and i think the fifth district opinion only deals with the part of commonwealth edison the fifth district opinion talks about a balancing test which should be of all i don't think commonwealth edison or any case since commonwealth medicine says that a balancing test is appropriate and under any circumstances summary of the visit or any circumstances other than where you have a tax rate increase under consideration and certainly there is no no no i decision prior to or subsequent to the commonwealth where  unreasonable reasonable violation of due process rights as refer it is referred to there is no decision by this court that says you can violate through process rights you can take away and individual property rights as long as it's not unreasonable this court's decision as to whether to it is proper for the legislature to retroactively revive time barred claims has far reaching implications not only in this lawsuit but it will apply to teachers coaches healthcare workers child advocates and child care workers the diocese of bellville respectfully request that this court follow one hundred fifteen years of legal precedent legislative history of the two thousand and three amendment and the important due process interests at stake and rule that the plaintiffs claims were properly dismissed by the trial court as time barred and that they cannot be retroactively revived by subsequent legislative amendments thank you court counsel my name is kevin horner and i'm here this morning on behalf of father roberts and i believe it was the wells of the waterfront in terms of our position but i want to as time permits that to add a few comments on follow robbers your honor just like all the other cases that come before you in this courtroom the parties to this lawsuit have agreed to disagree we disagree on the lessons to be learned from the courts in this court's one hundred plus years body of work of precedent and in particular we disagree on the instruction and guidance this court dismissed this court's body of work by merely stating over one hundred plus years i've merely stating that it was pre commonwealth edison and ignored its own decision in galloway by stating that it disagreed with it and offered no additional analysis on either of those fronts when i read the commonwealth edison case as it applies to this case i reach the same conclusion one would whether you apply it to this case before or after commonwealth that assent and that is because the only courts do not revive time bart claims the reason is this at the end of the day whether you consider this case before or after the commonwealth that is an opinion the legislature illinois does not have a free pass to violate our constitutional rights and i hope we can all agree on that it is our position that the retroactive application of the two thousand and three and none of the child sexual abuse act violates these defendants to process rights and i too want to spend a little time talking about commonwealth edison before i do i do not pretend to tell this court what it meant by its opinion in that case we as attorneys merely make observations of which of what we believe you meant we all know that the commonwealth  edison court adopted the land graph test which in its first prong says that if the legislature indicates its temporal reach then we should apply  constitutional prohibition i like mr wells i don't believe the statute is ambiguous but let's suppose for purposes of argument that the legislature did intend that it be applied retroactively  this and requires that we determine is there a constitutional prohibition against retroactive application and i believe the conclusion has to be yes this court has consistently held that a revival of an already time claim violates a defendant's fundamental right to due process guaranteed by the only constitution moreover a defendant's right to the completed time or is just as valuable and just as worthy of protection as the plain just right to bring suit to begin with the legislature cannot interfere with these rights and there is a litany of cases that support this proposition dated back as coun i want to spend a minute now talking about what the commonwealth edison case does not do the majority opinion from the fifth district in this case would have us believe that  over ruled roughly one hundred fifteen years of case law precedent in the state we read that case differently commonwealth edison i believe did not relax the constitutional prohibition against retroactive revival of time board claims this court could wreak affirmed this would examine the henry case in the commonwealth that is an opinion and i believe when you read commonwealth addison as as much time as this court took and discuss in the henry case and and how it related to the disposition in the c you could just as easily be talking about this case the doe versus diocese of dallas case the court explained applying the amendment in henrich would have meant imposing a period of retroactively of almost poor here and i believe this court strong a little bit with that length of time as compared to a period of six weeks of retro activity that was being dealt with in family wealth addison and that motion was filed in motion was allowed here in our case by the majority opinions calculation in the fifth district we have a period of retroactively of thirteen point five years but in addition to that applying the amendment on appeal in henry as this court explained would have meant resurrecting a claim that had been previously barred in its entirety just like here in the it's its reasoning in henrich with it's the citizen to retroactively i apply tax rate increase income more medicine we could just as easily be discussing the defendants in in in this very case at the end of the day i believe that neither the legislature nor this honorable court acting consistent with more than a century of case law in violate decision below and that is the period of retroactivity the court below in correctly calculated that the period of retroactivity would run from  the court said that john doe way reached the age of eighteen in nineteen eighty eight there was a two year statute of limitations in fact under the common law it was also a discovery roll and so the claim in this case would not have accrued under either pre nine hundred ninety one theory or now before it that date of discovery and everybody agrees that the date of discovery is nine ninety eight and that is the baseline so the baseline is nine hundred ninety eight if it's a two year limit that means that the filing should have been in two thousand if it's a was the rule under the tooth out two thousand and three amendments and this was in response to this court's decision in clay be cool is that discovery occurs on that date when the point has not just understood they were insured but understood that their current problems were caused by the injury so the fact that he was told he was injured was not enough he has to have made the thirteen and a half there are essentially two and a half so that was a very serious error on the part of the court but even despite that the court ruled in john doe ways favor using the land gra analysis from the united states supreme court which this court adopted in commonwealth edison i strongly disagree with my colleagues statement that there is a hundred years in this state over rulings that control this case what this court said in commonwealth edison is that it's doctrine was confused that sometimes it used a  rights approach and sometimes it used legislative intent in the land grant decision the supreme court said that one hundred years earlier it would not have permitted retroactivity but inland graf the court said they were no longer going to fail to defer to the legislature they were now going to start always defiant to the legislature unless there was a clear constitutional bar  filed the lawsuit in two thousand and two and it had been dismissed at that time on the basis of this then existing states to the limitations would the period have been revived by the two thousand and three amendments if it after the two south two thousand three amendments and they were intended to be applied retroactively the legislature chose a language that was approved in commonwealth edison intending retroactivity if the identical language it's court had said on or after means retroactivity and intended retroactivity here with respect to the legislative history it's you know well event when the language is so clear and the very words approved in commonwealth edison were the words chosen here so the issue in this case is the second prong of land graph in which the court says that the legislative intent is to be deferred to unless there is a constitutional bar and there are two types of constitutional bars one is an explicit constitutional bar like the ex post facto costs but had of course as you're relevant in a civil case the other possibility is that there is a due process issue in a particular case and commonwealth edison followed the approach from land grab which is packed the court is required to balance the interest intended to be sung by the legislature what is the legislatures purpose here the statute of repose that's a different issue from the retroactivity of statute of limitations and under this court's rulings you're supposed to consider the individual statute in front of you in the individual barriers oh burdens that are put on the defendant now the legislative purpose in this case is a compelling interest there's no question there's a compelling interest in the protection of children but the problem with that is raised by the defendants is they are claiming detrimental reliance but it's very hard to claim detrimental reliance when the standard is a discovery rule they were never going to have assurance that discovery occurred until they heard from the plaintiffs that discovery had occurred is not a statute of limitations has just a number of years so they did not have the right or the power to throw out all of their records or forget what had happened in this particular case and on any date because they didn't know when discovery would occur  could never know or predict when discovery would occur and in this case they knew they had a pedophile on their hands they knew one thousand nine hundred sixty seven they knew one thousand nine hundred sixty eight they knew in the eighty's they knew in the ninety's they knew that father wahlberg's was abusing children and so it is nonsensical for them to argue that there is detrimental reliance in any way shape or form in this case or that they would have acted differently at the time and concealed his abuse from the plaintiff based on whether or not the claim was flawed in two thousand or two when they knew what the time they covered up that he was in a fusing individual now this court has pointed a couple of times to another factor which was i dos the new rule the new section limitations or whatever rule it is the legislature creates it doesn't create a a new legal consequence to completed actions and with the statute of limitations retroactivity the only thing that has changed is that is the date that the plaintiffs can't go to court the legal obligations at the time of a cover up are no different the burden of proof that's going to be on the plaintiff is no different the fact the plaintiff is going to have to have proof and cooperation in snow different and so this is very different from the hendrick case in the headlight case the school district knew on the date of this action that was being which the subject of a lawsuit that it was completely a mere one from liability it was in here when it didn't have to do anything to avoid liability the archdiocese and father robert knew on the day of the abuse that in fact they were why vault for abuse and so henrik cannot be the same case it's a completely different case i don't know if you decide very little but you were talking about when the due process versus the legislative and are you implying a balancing of the two and determining under the facts of the case which one trumps the other well land chris says there must be clear legislative intent which there is here and secondly there may be a constitutional barrier and with this court said edison is that the way that you look at that constitutional barrier is a balancing of the interests between the legislative purpose and whatever constitutional violation is being raised and that's just that's just standard constitutional analysis and how do you know it isn't where you are it was in our favor because the legislature has a compelling interest in protecting children and in publicly identifying predators it also has a compelling interest in shifting the costs of abuse from the public to the private individuals that actually cause the abuse and so there's a compelling public interest  in the statute but on the side of the defendant our position is that defendants arguments of constitutional violation are so weak that they're easily overcome by the compelling interest of the state  protecting children and making sure that those calls you can use are the ones who bear the costs of the abuse so the balance that therefore weighs in favor of the p i point out that before the court decided to lancre off it the supreme court decided change securities and chase securities identified those constitutional problems that would be weighty enough to overcome retroactivity they must be special hardships or au prince of the facts and it's very hard to argue that being in court two and a half years after you would have otherwise been in court is a a plus an oppressive effect it certainly would not have changed the way that any rational or reasonable defendant would have been operating i legislature says is the timing of your filing is what this court has decided in commonwealth it would defer to and this legislature has decided repeatedly now that it needs to do a better job for child sex victims and in two thousand and three this legislature clearly adopted retroactive language in order to capture those individuals it had inadvertently shot out before so the question is legislative intent and the intent is identical in that way which is premised on language as well as actions comments on or after yes is there any other language anywhere that you rely on with respect retroactivity no your honor you know this is the standard language that's used with respect retroactivity across the country and in the illinois courts it's not a requirement because it's going through us to be judged to determine whether it unfairly affects the balancing issue it's the second prong of landgrab right i would say i'll come with yes or that's the second prong of commonwealth in the way i mean the way this court articulated it is that it is if you look at this court's lengthy discussion of henrich it is a subtle balancing of the interests of the state in achieving its legislative purpose against the interests of the defendant having to bear the burden valence against what i mean unfairness was on one side of the balance which on the other side fairness fairness to the point of unfairness to the defendants and that's exactly how the court below addressed the issue and that is how nt they rejected this court rejected the reasoning of henrik implicitly by saying it had one may have come out by saying that immunity is enough to avoid retroactivity but we're not going to show you how to look like henrik under our new reasoning and if your point had like under the new reasoning it takes a lot more than just saying there's a vested right you have to figure out what the interest saw on each side you have to figure out where justice and fairness lay and the court concluded that hendrik was cracked in the conclusion but it rejected the reasoning of hammer and we did head like essentially in two pages of the commonwealth edison opinion explaining how you apply the new analysis and it is our position that if you will apply the analysis as directed under that reasoning henrik comes out the same way but this cut case comes out in that talk about the discovery rule and the connection the problem in this universe and this is why the two thousand and three investments exist is that there are hundreds of studies now that show that child sex abuse victims need decades to come forward not just a couple of years they need decades they do not understand and under and under this connection discovery theory they do not understand one that what was done to them was wrong we have that in our brief that we at the time he didn't know this was a priest he thought whatever the priest did was fine and two they don't understand by the time all the negative effects appear from the abuse in adulthood they don't understand that they were caused by the abuse this is just standard one of the amakosa preached that was filed in this case is very good on this issue explaining all of the science that shows that these individuals need a long time to connect the dots of this could  understand it it's a non issue in this there's there was an agreement as to the david just there's no debate that nine hundred ninety eight was the date of discovery for purposes of two thousand and three amendments the only issue in this case is whether the two thousand and three i meant this are going to be applied retroactively and is it your position that you've heard the representative quoted legislative debates i know that there is a there's a conflict between the two sides as to whether the statute is clear  the regardless it seems like your position would be even if you get to the fact that there's no nothing in the statute itself then you would say that it would be a procedural respond to answers why i mean if this court holds that the language of this statute is not retroactive it must reverse the result and commonwealth at assen it's the same language number two if you look at the record on c five retroactive what he meant was that any cases that had been previously litigated and there had been a dismissal on statute of limitations or dismissal on the merits those cases could not reappear so  those parts of the record completely undermined the claim to legislative intent that would make less clear the language this court already said in commonwealth is clear your next question is that of the states yes it is not enough for the plaintiff to know there was ensuring the plaintiff must know both that they always enjoyed and that the injury was caused by the abuse and so that theory is codified in the two is this court states and commonwealth quote nevertheless henrich remains relevant in this case and so for us it defines those interests that are protected or protected from legislative interference by the due process clause of the illinois constitution will not reject him rick and this court went to great lengths to won't from henrich and specifically the language that i pointed out before about not being able to revive time board claims and before i get to the well let me let me deal with the language the illinois legislature had employed language similar to they used in two thousand and three in both one nine hundred ninety one and one in ninety three and in night two thousand and three it had the benefit were we're talking about here that's in the two thousand and three amendment did not support retroactive revival of time barred planes and i think it's fair to was sume that the legislature was familiar with the cases representative brosnahan stated on the record that he was and they understood that by employing the same language that they had employed in one nine one and in one nine hundred ninety three they were not intending that that language in the two thousand and three amendment should be retroactive i referred to the language by a do we do about balancing act with the well is there is there a balancing or if there are due process implications does that end the inquiry or do we look at the competing factors that were raised in this and i don't think there is any balancing test and i don't see any court including the court in commonwealth employing a balancing test under the circumstances of this case appropriate under circumstances other than the facts about caged the adjustment of a tax rate that's what common law says the language the point of both the determination of whether the application of the stairs you don't reasonably infringes upon the rights of those to whom it applies involves the balancing of discrimination between reasons for and against the applications there is so this to this class of individuals is that not under the circumstances no because i think this court the court in commonwealth when it out of its way to quote the language that it quoted from hendrick and what what they see what the court commonwealth court selects from henry is significant and this court in common well says put simply the legislature lacks the power to reach back and breathe life into a previously barred plane now i have to think that there was some reason why the justice mcmorrow in writing that opinion selected that specific language from henrik and why this court said henrik remains relevant and it does remain relevant i get these these these two affidavits that were referred her well after the fact the two thousand and three amendments became effective on july twenty fourth two thousand and three the two affidavits that are referred to were executed on october eighth two thousand and four they were not what was before the legislature when the legislature voted on this amendment the two thousand and three amendment what was before the legislature is the language that representative browsing and stated on the record that i read to the court previously that's what they consider not these after the fact affidavits  credit there this court and you're writing the opinion concluded that you could not have retroactive effect and you don't employ any balancing test in the capital so this balancing concept that you see in this quoted by counsel from commonwealth edison applied to a tax adjustment it doesn't apply it didn't apply in henrich it doesn't apply and in  calvin there are a number of things to cover but one of the things that i think isn't working is are the statements that the diocese of bellville knew all about father roberts and that he had abused i think was the statement was multiple children over a period of years that is not true it is not in the record the father roberts was not one of our priests he was in bellville for one week you have one and incident that occurred so there is nothing in the record to support with  is just not true the allegation is that we were negligent the problem is the person the people that made the decisions back in eighty four as to whether father robert should be permitted to spend the weekend bellville are here so i can't test what that person knew or didn't know what that person can do account when they permitted father roberts to spend that one week there so we did not have the net knowledge that suggests you can you can start with armistead you can go to henrik commonwealth cavaney the language changes are just as vested rights you have the land graph approach but the results don't and what in all of these cases what the court has concluded is it is inappropriate in fact unconstitutional for the illinois legislature to pass any type of legislation that reaches