Legislature May Revive Cases Barred by Statute of Limitations

From H.C. v. Nesmith, decided last week by the Arkansas Supreme Court, in an opinion by Justice Nicholas Bronni, joined by Justices Courtney Rae Hudson, Cody Hiland, and Rhonda Wood (note that other state courts are split on this question, see, e.g., this post and this one):

This case presents a particularly important question: Can the General Assembly extend the statute of limitations in cases where it has already run and afford child-sex-abuse victims an opportunity to hold their abusers accountable? … [T]his court’s vested-rights precedent … categorically bars “expand[ing] a limitation period so as to revive a claim already barred.” …

Revisiting our vested-rights precedent, we conclude that it lacks any constitutional basis and, as such, cannot stand. We therefore overrule our prior cases prohibiting the legislature from expanding a limitations period and thereby reviving time-barred claims [and] uphold the Vulnerable Victims of Sex Abuse Act against Nesmith’s constitutional challenge ….

[Under] our vested-rights precedent …, “the legislature cannot expand a statute of limitation so as to revive a cause of action already barred.” That doctrine rests on the assumption that when a civil statute of limitations runs, a tortfeasor has a vested right to the property that could have been the subject of a potential claim….

[But] our cases do not cite any constitutional basis for that doctrine. Far from it, when we first employed that principle to strike down legislation in 1933, we instead relied on a single legal encyclopedia published in 1915 assuring us that—at that sole moment in time—most jurisdictions held that legislatures could not revive a claim after a statute-of-limitations defense had run. Or, perhaps more generously, we relied on that legal encyclopedia plus an unreasoned extension of this court’s prior case law suggesting that to retroactively alter an applicable statute of limitations, the legislature needed to speak clearly and show it had considered the consequences. That approach, unbound by actual text or constitutional history, is not consistent with our constitutional role….

To be sure, some later cases—perhaps recognizing that our earlier cases do not cite any constitutional language supporting our vested-rights precedent—suggest that precedent rests on due-process principles…. [But] that label does not work because the expiration of a statute-of-limitations period does not confer a property right—or any other right for that matter.

As the Supreme Court has explained in rejecting similar arguments under the federal due process clause, a statute-of-limitations period merely governs the time within which a claim must be brought, see Chase Sec. Corp. v. Donaldson (1945); it does not reflect a legislative judgment “that [a] defendant should ‘be free from liability after the legislatively determined period of time.'” Instead, these limitations “are by definition arbitrary” and rest entirely on legislative judgments about how best to encourage plaintiffs to diligently pursue claims and avoid litigation “after memories have faded, witnesses have died or disappeared, and evidence has been lost.”

As such, they “represent a public policy [choice] about” how to balance those interests and exist only by “legislative grace.” Altering that period and establishing a different, equally “arbitrary” date does not—contrary to our prior case law’s unfounded assertion—deprive a defendant of any vested property right. Rather, balancing competing interests and “resolv[ing] the debate” about when a claim should be time-barred is precisely the kind of thing that our constitution leaves “to the legislature.”

We therefore hold that the court’s vested-rights precedent has no basis in law, and we overrule our prior cases categorically barring the legislature from expanding the limitations period and thereby reviving claims. Indeed, as we recently reaffirmed, “we are bound by constitutional text,” not precedent that “treats our constitution not as a written document but as a set of civic values and norms determined by judges.” And we now restore to the General Assembly its constitutional power to decide how long is too long to bring a claim….

Justice Courtney Rae Hudson concurred:

Recognizing the vital importance of stare decisis, I nonetheless conclude that this is an exceptional case that warrants breaking with our precedent. Before the General Assembly enacted the Justice for Vulnerable Victims of Sexual Abuse Act, victims of sexual abuse who were under age twenty-one generally had until three years after attaining full age to file suit. Yet childhood sexual abuse presents a unique problem in that—by its very nature—it often prevents victims from bringing timely claims. This consideration leads me to conclude that great injury and injustice will result if we continue to follow our vested-rights precedent in this case….

In recent years, research has revealed the prevalence of childhood sexual abuse and some of the reasons for delayed reporting. For example, we now know that at least one in four girls and one in twenty boys in the United States experience child sexual abuse. Even still, childhood sexual abuse is vastly underreported, and when it is reported, often years or decades have passed. Victims may be reluctant to come forward due to the negative repercussions of disclosure, such as disruptions in family stability, loss of close relationships, or involvement with the authorities; fear of not being believed; and psychological obstacles such as shame and self-blame….

Chief Justice Karen Baker dissented:

I disagree with the majority’s decision to upend 180 years of this court’s precedent prohibiting legislative attempts to revive expired statutes of limitation…. In my view, applying our vested-rights precedent to the present case, … the legislature lacked the power to revive the expired statute of limitations applicable to Nesmith, and therefore, the claims against Nesmith were time-barred.

Justice Shawn Womack also dissented:

[I]n 1846 this court in Couch v. McKee treated the completed bar [of the statute of limitations] as a property interest that cannot be removed by later legislation. When the statute has run, the defendant’s right to be free from the claim becomes part of his or her protected legal estate, an interest the State cannot simply reassign by retroactive enactment. Our later cases have repeatedly applied that same rule, holding that revival statutes cannot constitutionally divest a defendant of a vested limitations defense.

Nor, contrary to the majority’s assertion, is our vested-rights jurisprudence untethered from constitutional text. The Arkansas Constitution reflects a longstanding hostility toward retroactive laws impairing settled rights. See Ark. Const. art. 2, § 17 (prohibiting ex post facto laws and laws impairing contractual obligations); id. § 21 (protecting due process). Consistent with those principles, this court has repeatedly recognized that retroactive legislation may not constitutionally disturb vested substantive rights….

That rule is not a mere formalism. Statutes of limitation serve an important public function. They encourage the prompt filing of claims so that the truth-finding process is not impaired by faded memories, lost documents, unavailable records, and deceased witnesses. Those concerns are not hypothetical. The amicus brief filed in this case illustrates the serious prejudice that can result when claims are revived decades after the fact.

Ms. Shirley Suhl, an eighty-seven-year-old retired widow, represents that she is defending claims in federal court arising from alleged events at a facility that ceased operating around 2006 and from conduct dating back nearly forty years. She is not alleged to have personally committed sexual abuse; rather, she is alleged to have known of or been complicit in abuse by others. According to her brief, relevant facility records no longer exist, potential witnesses are elderly or deceased, and one named former employee accused of abuse is now in his nineties. Whether those allegations ultimately have merit is not before us. The point is more basic: the passage of decades can make a fair defense difficult, sometimes impossible.

This is precisely why Arkansas law has treated an accrued limitations defense as vested. Once the limitations period has run, the defendant is entitled to repose, not because the underlying allegations are unimportant but because the law recognizes that, at some point, the defense of stale claims becomes too impaired to permit reliable adjudication. The majority treats the limitations bar as a revocable act of legislative grace. Our cases have treated it differently. They have recognized that once the bar attaches, it becomes a substantive right to resist enforcement of the claim. That rule does not deny the gravity of child sexual abuse. It enforces the constitutional limit on retroactive legislation that destroys vested rights.

In this instance, stare decisis carries particular force. The rule the majority abandons today is not isolated or recently decided precedent. It can be traced back to this court’s earliest jurisprudence and has been reaffirmed across generations of cases. Litigants, lawyers, and the General Assembly have long operated against that settled backdrop. Yet today, the majority discards nearly two centuries of precedent. Stability in the law matters, especially when the court alters longstanding rules governing substantive rights and retroactive legislation….

{While many judges and justices pledge full allegiance to the doctrine of stare decisis, even to the point of perpetuating clear errors of constitutional interpretation, I am not one of them. And while it is an important piece of our judicial system, I have frequently noted that “[t]his court “should not invoke stare decisis to uphold precedents that are demonstrably erroneous.” Here, however, our two centuries of case law on the subject are rooted in the Arkansas Constitution as article 2 section 21 supports our precedent. Accordingly, I would follow it.

Joshua D. Gillispie (Gillispie Law Firm) and Brian G. Brooks represent plaintiffs.