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 threepart 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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