Doe v. Roe

HARRELL, J. “[Jeremy] Bentham stated the case against retroactivity most succinctly when he likened it to ‘dog law.’ He was referring to the age-old method of training dogs by waiting until they do what they are to be forbidden to do, and then kicking them.” Norman J. Singer, Sutherland Statutory Construction § 41.02 (5th ed. 1992) [hereinafter Sutherland]; see Jeremy Bentham, Truth versus Ashhurst, in 5 The Works of Jeremy Bentham 235 (1863) (“They won’t tell a man beforehand what it is he should not do—they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it. What way, then, has any man of coming at this dog-law?”). This case presents the question of whether Mary ⁶⁸⁹ land Code (1974, 2006 RepLVol.), Courts & Judicial Proceedings Article, § 5-117—enacted in 2003 expressly to extend from three years to seven years the statute of limitations for civil 1 claims stemming from alleged child sexual abuse— permits, at least under certain circumstances, a kicking of Bentham’s dog, albeit in a procedural way. James Doe challenges here the judgment of the Court of Special Appeals, which reversed the judgment of the Circuit Court for Calvert County, the latter having reasoned that the Legislature intended § 5-117 to apply “partially retroactively” to sexual abuse claims filed against him that, as of the effective date of the extended limitations enactment, had not been barred by the previously-applicable three-year limitations period.

We hold, for reasons to be explained more fully infra, that, assuming arguendo application of § 5-117 to the claims in the present case represents a retrospective application of the statute, § 5-117 is a procedural and remedial statute, and, accordingly, it may be given such retrospective application to claims that were not-yet barred by the previously-applicable three-year limitations period as of the extended period’s effective date, 1 October 2003. FACTS AND LEGAL PROCEEDINGS Mary Roe 2 (“Respondent” or “Roe”) was born on 29 September 1983. She reached the age of majority on 29 September 2001. See Maryland Code (1957, 2005 Repl.Vol.), Article 1, § 24 (“Except ... as otherwise specifically provided by statute, a person eighteen years of age or more is an adult for all purposes whatsoever____”).

Roe alleges in her complaint ⁶⁹⁰ in this litigation that James Doe (“Petitioner” or “Doe”), her grandfather, raped her on two separate occasions, the first of which occurred when Roe was either six or seven years of age, and the second incident when she was eight years of age. At the time Roe reached the age of majority, the limitations period on the civil claims stemming from the alleged sexual assaults was governed by Maryland Code (1974, 1998 Repl. Vol.), Courts & Judicial Proceedings Art., § 5-101, which provided that “[a] civil action at law shall be filed within three years from the date it accrues.... ” Chapter 360 of the Acts of 2003, effective 1 October 2003, however, added § 5-117 to the Courts & Judicial Proceedings Article, establishing the statute of limitations “for damages arising out of an alleged incident or incidents of sexual abuse that occurred while the victim was a minor” as “7 years [from] the date that the victim attains the age of majority.” Section 2 of Chapter 360, which remains uncodified, provides that “[t]his Act may not be construed to apply retroactively to revive any action that was barred by the application of the period of limitations applicable before October 1, 2003.” On 3 September 2008, Roe filed a five-count complaint against Doe, alleging (1) assault; (2) battery; (3) false imprisonment; (4) intentional infliction of emotional distress; and (5) negligence. Doe responded with a “Motion to Dismiss Complaint and Request for Hearing,” arguing that all of the claims were time-barred because Roe filed her complaint after 28 September 2004, one day shy of three years from the date on which Roe reached the age of majority.

Doe asserted that the seven-year statute of limitations did not apply to Roe’s claims against Doe, asserting that “[t]he [Legislature made it clear that the new legislation was prospective only.” The Circuit Court, on 22 January 2009, heard oral argument on Doe’s motion to dismiss and Roe’s opposition, and took the matter under advisement. On 3 February 2009, the Circuit Court issued a three-page memorandum opinion, holding that ⁶⁹¹ all of Roe’s claims 3 were time-barred: The language is clear that [§ 5-117] cannot be applied retroactively. If the [Legislature intended for CJ § 5-117 to apply to those actions still viable as of October 1, 2003, it would have had to explicitly enact such language. “A statute is presumed to operate prospectively from its effective date, absent clear language to the contrary, or unless the manifest intention of the Legislature indicates otherwise.” Rawlings v. Rawlings, 362 Md. 535, 555 [, 766 A.2d 98, 109 ] (2001). Here, there is no clear language to contradict the presumption that the statute is prospective or has selective retroactivity, as [Roe] contends.

Even the legislative history of CJ § 5-117 indicates that the statute is not retroactive. Since the enactment of Chapter 360, the Maryland Legislature has introduced, and rejected, numerous attempts to make § 5-117 retroactive. Because [Roe]’s cause of action accrued in 2001, before the 2003 enactment of Chapter 360, the “period of limitations applicable” to her claims is three years. Therefore, [Roe] had until September 28, 2004 to file a complaint, and, thus her complaint, filed September [3], 2008, is time-barred.[ 4 ] Alternatively, the Circuit Court held that even “[i]f the Court were to apply CJ § 5-117 retrospectively, [Doe]’s due process ⁶⁹² rights would be infringed because he has a vested right to be free from a suit where the statute of limitations has run.” Roe noted a timely appeal to the Court of Special Appeals.

A panel of our appellate brethren reversed the judgment of the Circuit Court, explaining that: SECTION 2 [i.e., the uncodified section] manifests the legislative intent that Chapter 360 have some retroactive application. If Chapter 360 were intended to apply purely prospectively, then it would have sufficed to enact only SECTION 3. In that way, the ordinary rule would apply under which legislation is presumed to operate only prospectively. But, here, it cannot be concluded that Chapter 360 operates only prospectively because, to do so, would render SECTION 2 surplusage, in its entirety.

That reading violates a cardinal rule of statutory construction. SECTION 2, by its plain language, prohibits a construction of CJ § 5-117 that would effect a fully retroactive application that revived causes of action that were barred, prior to the enactment of Chapter 360, under the previously applicable law of limitations. Once again, if the Legislature intended, in addition, that CJ § 5-117 also bar causes of action on which limitations had not run, as of October 1, 2003, under the prior limitations law, then the Legislature did not say so. Further, if that were the legislative intent, it could have been accomplished simply by enacting SECTION 3 and omitting SECTION 2.

Defendant’s position seems to be that the prior limitations law continues to govern claims that arose prior to October 1, 2003, and that CJ § 5-117 governs only claims that arose on or after October 1, 2003. But, that is not what SECTION 2 says. Defendant’s reading would have SECTION 2 state, “That this Act may not be construed to apply retroactively to revive any action that was barred or becomes barred by the application of the period of limitations applicable before October 1, 2003.” Adding words to a statute to affect the meaning manifested by the statute’s plain language is unsound statutory construction. ⁶⁹³ Roe v. Doe, 193 Md.App. 558, 565 , 998 A.2d 383, 387-88 (2010). Such a conclusion, the Court of Special Appeals explained, was consistent with § 5-117’s legislative history and its pre-history.

See Roe, 193 Md.App. at 566-69 , 998 A.2d at 388-390 . Finally, the intermediate appellate court held that: [T]he General Assembly did not infringe any vested or substantial right of Defendant when it extended the period of limitations on claims of sexual abuse of minors and made that extension applicable to claims that were not barred, as of the effective date of the new legislation, by expiration of the prior limitations period. Roe, 193 Md.App. at 579 , 998 A.2d at 395 . Doe filed a timely Petition for Writ of Certiorari, which we granted, Doe v. Roe, 416 Md. 272 , 6 A.3d 904 (2010), to consider whether “§ 5-117 [may] be properly applied retroactively to permit a claim that arose before the effective date of § 5-117, and which is barred by the prior statute of limitations.” 5 STANDARD OF REVIEW As we explained in Menefee v. State, 417 Md. 740, 747-48 , 12 A.3d 153, 157 (2011): In reviewing the Circuit Court’s grant of a motion to dismiss, “our task is confined to determining whether the trial court was legally correct in its decision to dismiss.” Washington Suburban Sanitary Comm’n v. Phillips, 413 Md. 606, 618 , 994 A.2d 411, 418 (2010) (quoting Debbas v. Nelson, 389 Md. 364, 372 , 885 A.2d 802, 807 (2005)); see Fioretti v. Md. State Bd. of Dental Exam’rs, 351 Md. 66, 71 , 716 A.2d 258, 261 (1998); Shenker v. Laureate Educ., Inc., ⁶⁹⁴ 411 Md. 317, 334 , 983 A.2d 408, 418 (2009) (“We review the grant of a motion to dismiss as a question of law.”); Price v. Upper Chesapeake Health Ventures, Inc., 192 Md.App. 695, 702 , 995 A.2d 1054, 1058 (2010), cert. denied, 415 Md. 609 , 4 A.3d 514 (2010).

DISCUSSION Recently, in Alt v. CIT Technology Financing Services, Inc., 416 Md. 249, 257, 258 , 6 A.3d 890, 894, 895 (2010), we explained that although “[i]n Maryland the general rule is that ‘[a] civil action at law shall be filed within three years from the date it accrues’ ” (quoting Cts. & Jud. Proc. § 5-101), such a “ ‘one-size-fits-all’ approach does not always serve to further the policies underlying the three-year limit,” and, accordingly, “the Legislature [has] enacted numerous exceptions to § 5-101’s three-year statute of limitations.” One such exception, § 5-117, is at the heart of the present matter. I. The Making of § 5-117 In Piselli v. 75th Street Medical, 371 Md. 188, 212 , 808 A.2d 508, 522 (2002), we explained that “the principle that statutory time limits for a minor to bring an action do not begin running until the age of majority has been firmly established in our law for a long time.” See Cts. & Jud. Proc. § 5-201 (“When a cause of action ... accrues in favor of a minor or mental incompetent, that person shall file his action within the lesser of three years or the applicable period of limitations after the date the disability is removed.”).

Accordingly, before § 5-117 was enacted, victims of child sexual abuse had until the day prior to their twenty-first birthday to file a civil action for damages relating to such abuse. See Mason v. Bd. of Educ. of Baltimore County, 375 Md. 504 , 826 A.2d 433 (2003). Concerned that a three-year statute of limitations may effectuate a unique injustice in cases of child sexual abuse, the Maryland Legislature first considered in 1994 extending the generally-applicable three-year statute of limitations on civil claims by alleged child sexual abuse victims. Although House Bill 326 of 1994—similar to an earlier draft of Senate Bill 68 ⁶⁹⁵ (2003)—passed the House of Delegates and was referred to the Senate Judicial Proceedings Committee, it received an unfavorable report before the latter, see Senate Bill 68 (2003), Fiscal and Policy Note.

It would be another nine years before efforts to extend the statute of limitations for sexual abuse victims were revived. By 2003, Maryland’s failure to address anew this issue since 1994 apparently reached critical mass. See Baltimore-Washington Conference Council on Ministries, Letter in Support of Senate Bill 68 (2003) (stating that, at the time Senate Bill 68 was being considered, “Maryland [wa]s one of only ten states that ha[d] not extended the statute of limitations in recognition of the special reporting difficulties often encountered in child sexual abuse and other serious crimes committed against children”). Numerous individuals and organizations renewed their support for an extension of the three-year statute of limitations for child sexual abuse cases.

One organization expounded upon the unique circumstances inherent to child sexual abuse cases: Perpetrators use many tactics to prevent their victims from disclosing abuse. These range from threats against the victim or loved ones, manipulating the victim, convincing the victim nothing is wrong, and exploiting the victim’s desire to keep a family together. Some victims remain financially and emotionally dependent on the perpetrator well into their late teens and twenties. Others face pressure from other family members to remain silent, or have a deep sense of shame.

A short, three year statute of limitations effectively prevents many of these victims from ever obtaining justice in the civil courts. Maryland Coalition Against Sexual Assault, Inc., Testimony in Support of Senate Bill 68 (25 February 2003); see also Letter From Eileen King, Regional Director, Justice for Children, to the Senate Judicial Proceedings Committee (24 February 2003) (“Child abuse victims may not know or understand the harm that has occurred as a result of the abuse; many problems may only develop gradually. A twenty-one year old victim will not have had the time to see the impact of abuse on ⁶⁹⁶ his or her relationships, parenting, work, or studies.”); Citizens’ Review Board for Children, Statement to the Senate Judicial Proceedings Committee (25 February 2003) (“A sexually abused child may have a variety of psychological reactions to his or her victimization.... In many cases, the child seeks to avoid thinking about the abuse____ In addition, children may experience serious mental health problems caused by the sexual abuse.

These may divert attention from adult business affairs such as law suits.”). At First Reading, Senate Bill 68 provided: Section 1. Be it enacted by the General Assembly of Maryland, That the Laws of Maryland read as follows: Article—Courts and Judicial Proceedings 5-117 (A) In this section, “sexual abuse” has the meaning stated in § 5-701 of the Family Law Article. (B) An action for damages arising out of an alleged incident or incidents of sexual abuse that occurred while the victim was a minor shall be filed within 12 years of the latter of: (1) the victim’s 21st birthday; or (2) the date on which the victim knew or reasonably should have known that the alleged abuse was actionable.[ 6 ] (C) This section may not be construed to preclude a court from applying any other applicable exception to the running of the applicable statute of limitations. ⁶⁹⁷ (D) This section shall apply to any action commenced on or after October 1, 2003, including any action that would have been barred by the application of the period of limitation applicable before October 1, 2003.

Section 2. And be it further enacted, That this Act shall take effect October 1, 2003. Between the First and Third Readings of the Bill, Senator Brian E. Frosh, then-and-now Chairperson of the Senate Judicial Proceedings Committee, wrote to Assistant Attorney General Kathryn M. Rowe regarding (1) “whether the application of the [initial version of the] bill to apply retroactively to cases that were barred prior to the effective date of the law would violate due process”; and (2) “what the effect would be if the bill is passed without any provision as to whether it is to be given retroactive or prospective effect.” 7 Letter from Kathryn M. Rowe to Sen. Brian E. Frosh, Chairman, Judicial Proceedings, at 1 (10 March 2003) [hereinafter “Rowe Letter”].

In her informal advice letter 8 addressing the initial inquiry, Ms. Rowe first noted a split in authority regarding whether statutes extending a statute of limitations for certain classes of actions would be read to revive causes of action barred by a previously-in-plaee limitations period, and then explained that “[t]he question that must be answered is wheth ⁶⁹⁸ er Maryland courts would apply the federal rule [allowing such statutes to revive previously-barred claims], or the rule that appears to be the majority rule among the states in analyzing the constitutionality of a retroactive application of Senate Bill 68.” 9 On this point, Ms. Rowe concluded: Having reviewed all of these cases,[ 10 ] it is my view that there is no reported case in Maryland that would mandate the unconstitutionality of [a fully] retroactive application of Senate Bill 68. However, it is possible, given the actions of other states, and its own statement in Dua [v. Comcast Cable of Md., Inc., 370 Md. 604 , 805 A.2d 1061 (2002) ], that the Court could conclude that retroactive application to revive barred causes of action violates Due Process. Rowe Letter, at 4. Regarding the second inquiry, Ms. Rowe opined that it was her “view that in the absence of a specific provision, the statute could be interpreted to have prospective effect, and that most likely would mean that it would apply only to causes of action based on abuse occurring after the effective date.” Rowe Letter, at 5.

Less than two weeks after Ms. Rowe responded to Senator Frosh’s inquiries, a revised version of the bill surfaced. This version provided, as § 5-117(a) and (b) do currently: Section 1. Be it enacted by the General Assembly of Maryland, That the Laws of Maryland read as follows: Article—Courts and Judicial Proceedings 5-117 ⁶⁹⁹ (A) In this section, “sexual abuse” has the meaning stated in § 5-701 of the Family Law Article. (B) An action for damages arising out of an alleged incident or incidents of sexual abuse that occurred while the victim was a minor shall be filed within 7 years of the date that the victim attains the age of majority.

Section 2. And be it further enacted, That this Act may not be construed to apply retroactively to revive any action that was barred by the application of the period of limitations applicable before October 1, 2003. Section 3. And be it further enacted, That this Act shall take effect October 1, 2003.

As codified, Cts. & Jud. Proc. § 5-117, provides: § 5-117. Actions arising from alleged sexual abuse. (a) “Sexual abuse” defined.—In this section, “sexual abuse” has the meaning stated in § 5-701 of the Family Law Article.

(b) Limitations period.—An action for damages arising out of an alleged incident or incidents of sexual abuse that occurred while the victim was a minor shall be filed within 7 years of the date that the victim attains the age of majority. Sections 2 and 3 of Chapter 360 of the Acts of 2003, however, are not codified. 11 II. Did the Legislature Intend for § 5-117 to Apply Retrospectively to Those Claims Not Barred Yet Under § 5-101 as of the Effective Date of § 5-117? 12 Generally speaking, “[t]he legislative function is principally concerned with the establishment of future rules of conduct.” ⁷⁰¹ Sutherland § 41.01. That said, “there is no question of the [LJegislature’s general power to enact laws which operate retroactively or retrospectively.” Sutherland § 41.04.

Although the Court’s early statements regarding the permissibility of applying retrospectively changes to a limitations period may be characterized fairly as inconsistent at best, 13 more recently, we have established ⁷⁰² [sjeveral well settled rules of statutory interpretation ... applicable in seeking to ascertain the actual intention of the legislature. These are: (1) A statute is presumed to operate prospectively from its effective date, absent clear language to the contrary, or unless the manifest intention of the Legislature indicates otherwise; (2) Despite the presumption of prospectivity, a statute effecting a change in procedure only, and not in substantive rights, ordinarily applies to all actions whether accrued, pending or future, unless a contrary intention is expressed; and (3) A statute affecting or impairing substantive rights will not operate retrospectively as to transactions, matters, and events not in litigation at the time the statute takes effect unless its language clearly so indicates.[ 14 ] Rawlings v. Rawlings, 362 Md. 535, 555 , 766 A.2d 98, 109 (2001); see Rawlings, 362 Md. at 556 , 766 A.2d at 110 (stating that “if the Rule only [a]ffects procedure, and not substantive rights, and is therefore remedial in nature ... [it] may be applied retrospectively unless a contrary intention is expressed”); Allstate Ins. Co. v. Kim, 376 Md. 276, 289 , 829 A.2d 611, 618 (2003) (stating that a “statute governing procedure or remedy” will be given retrospective effect, even “to cases pending in court when the statute becomes effective”); State v. Stowe, 376 Md. 436, 454 , 829 A.2d 1036, 1047 (2003); Kelch v. Keehn, 183 Md. 140, 144 , 36 A.2d 544, 545 (1944). We address “Rule No. 2” first to determine whether a statute acting to extend the limitations period to claims not-yet barred by the original Kmitations period are “procedural” and/or “remedial.” In Langston v. Riffe, 359 Md. 396, 408-09 , 754 A.2d 389, 395-96 (2000), we expressed our view of what constitutes a “remedial” statute: ⁷⁰³ Generally, remedial statutes are those which provide a remedy, or improve or facilitate remedies already existing for the enforcement of rights and the redress of injuries.

They also include statutes intended for the correction of defects, mistakes and omissions in the civil institutions and the administration of the state. The definition of a remedial statute has also been stated as a statute that relates to practice, procedure, or remedies and does not affect substantive or vested rights. Every statute that makes any change in the existing body of law, excluding only those enactments which merely restate or codify prior law, can be said to “remedy” some flaw in the prior law or some social evil. The appellate courts of this state have also defined remedial legislation.

For instance, we [have] said that an act is remedial in nature when it provides only for a new method of enforcement of a preexisting right. Under Maryland law, statutes are remedial in nature if they are designed to correct existing law, to redress existing grievances and to introduce regulations conducive to the public good. (Citations and quotation marks omitted.) We think that § 5-117 is remedial. The extended limitations period “improves remedies already existing for the enforcement of rights and the redress of injuries,” as an extended period of time during which alleged victims of child sexual abuse may seek redress in the courts “improves” the child’s right to seek compensation for the alleged wrongs committed against him or her.

Further, it may be said fairly that § 5-117 is “designed to correct [then-]existing law,” and to “introduce regulations conducive to the public good,” as the legislative history of the statute reflects that the extended limitations period—both in Maryland 15 and in other jurisdictions—was passed (at least in part) “in response to the outcry and evolving understanding of childhood sexual abuse.” Sandee L. Chadwick, The Disappearing Ex Post Facto Clause ⁷⁰⁴ and Reviving Time-Barred Prosecutions, 30 Sw. U.L. Rev. 197, 215 (2000); see People v. Frazer, 21 Cal.4th 737 , 88 Cal.Rptr.2d 312 , 982 P.2d 180,183 (1999), overruled in part on other grounds, by Stogner v. California, 539 U.S. 607 , 123 S.Ct. 2446 , 156 L.Ed.2d 544 (2003) (“Beginning in the late 1980’s, lawmakers across the country became increasingly aware that young victims often delay reporting sexual abuse because they are easily manipulated by offenders in positions of authority and trust, and because children have difficulty remembering the crime or facing the trauma it can cause.”); Kelly W.G. Clark et al., Of Compelling Interest: The Intersection of Religious Freedom and Civil Liability in the Portland Priest Sex Abuse Cases, 85 Or. L.Rev. 481, 506 (2006) (“[T]he ‘why’ of using the extended statute of limitations against a[n offender] boils down to the fact that a person functioning at the emotional level of a child—no matter what age—cannot then recognize the three requisite elements of tort, injury, and causation. As a result, more and more states have adopted extended statutes of limitations for child abuse actions.”); David Viens, Countdown to Injustice: The Irrational Application of Criminal Statutes of Limitations to Sexual Offenses Against Children, 38 Suffolk U.L.Rev. 169, 170 (2004) (“Many states have recognized the special circumstances of childhood sexual abuse and the legitimate reasons why a complaint often cannot be made until many years after the abuse.”).

Finally, in concluding that—at least as applied to causes of action not-yet barred by the generally-applicable three-year limitations period—§ 5-117 is a remedial and procedural statute, we are in accord with the overwhelming majority of jurisdictions that hold that a change to a limitations period—when applied to claims not-yet-barred by the previous limitations period—is procedural or remedial in nature. 16 , 17 ⁷⁰⁵ It would be an oversimplification of the law, of course, to say that every application of a statute expanding a statute ⁷⁰⁶ of limitations period is remedial or procedural. See Lujan v. Regents of the Univ. of Cal., 69 F.3d 1511, 1516 (10th Cir.1995) (quoting Hanna v. Plumer, 380 U.S. 460, 471 , 85 S.Ct. 1136, 1144 , 14 L.Ed.2d 8, 16 (1965)) (“The terms ‘substantive’ and ‘procedural’ do not have a fixed content. ‘The line between “substance” and “procedure” shifts as the legal context changes.’ ”); Lujan, 69 F.3d at 1516 (“Statutes of limitations are neither substantive nor procedural per se but have ‘mixed substantive and procedural aspects.’ ”) (quoting Sun Oil Co. v. Wortman, 486 U.S. 717, 736 , 108 S.Ct. 2117, 2129 , 100 L.Ed.2d 743, 761 (1988) (Brennan, J., concurring)). In fact, we stated that, in certain circumstances, a statute changing a limitations period may constitute a substantive change in the law. For instance, in Blocher v. Harlow, 268 Md. 571, 581 , 303 A.2d 395, 400 (1973), we opined: There is a substantial body of law to the effect that where a limitation period is stipulated in a statute creating a cause of action it