AURORA PUBLIC SCHOOLS and David James O‘Neill, Petitioners, v. A.S. and B.S., Respondents.
Supreme Court Case No. 22SC824
Supreme Court of Colorado
June 20, 2023
531 P.3d 1036
MÁRQUEZ, J.
Attorneys for Petitioner David James O‘Neill: Law Office of Leonard R. Higdon, Leonard R. Higdon, Greenwood Village, Colorado
Attorneys for Respondents: Gupta Wessler PLLC, Jennifer D. Bennett, San Francisco, California, Gupta Wessler PLLC, Robert D. Friedman, Washington, District of Columbia, Avery Law Firm, James W. Avery, Denver, Colorado
Attorneys for Amici Curiae American Tort Reform Association, Colorado Civil Justice League, Colorado Chamber of Commerce, American Property Casualty Insurance Association, and National Association of Mutual Insurance Companies: Shook, Hardy & Bacon LLP, Daniel E. Rohner, Denver, Colorado, Shook, Hardy & Bacon LLP, Cary Silverman, Washington, District of Columbia
Attorneys for Amicus Curiae Archdiocese of Denver: Lewis Roca Rothgerber Christie LLP, Scott M. Browning, Michael D. Plachy, Caitlin C. McHugh, Denver, Colorado
Attorneys for Amicus Curiae Child USA: Wahlberg, Woodruff, Nimmo & Sloane LLP, Michael Nimmo, Denver, Colorado
Attorneys for Amici Curiae Colorado Academy, World Leadership School, Cornerstone Safety Group, and Global Works: Lewis Roca Rothgerber Christie LLP Doug B. Tumminello, Kendra N. Beckwith, Denver, Colorado
Attorneys for Amici Curiae Colorado School Districts Self Insurance Pool, Colorado Association of School Boards, Special District Association of Colorado, Colorado Rural Schools Alliance, and Colorado Association of School Executives: Semple, Farrington, Everall & Case P.C., Jonathan P. Fero, Denver, Colorado
Attorneys for Amici Curiae Colorado Trial Lawyers Association and American Association for Justice: 5280 Appellate Group, a division of The Paul Wilkinson Law Firm LLC, Nelson Boyle, Denver, Colorado, Burg Simpson Eldredge Hersh & Jardine, P.C., S. Paige Singleton, Alyssa C.E. Hill, Englewood, Colorado
Attorneys for Amici Curiae Members of the Colorado General Assembly: Wagstaff Law Firm, Sommer D. Luther, Benjamin Gillig, Denver, Colorado
En Banc
JUSTICE MÁRQUEZ delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.
JUSTICE MÁRQUEZ delivered the Opinion of the Court.
¶2 In January 2022, plaintiffs A.S. and her husband B.S. brought a claim under the CSAAA against a former high school athletic coach and a school district, alleging that the coach sexually abused A.S. between 2001 and 2005, when she was a minor. At the time the plaintiffs brought this suit, any previously available claims for this alleged sexual misconduct were time-barred.
¶3 We are asked to decide whether the CSAAA violates
¶4 First, we conclude that we have subject matter jurisdiction to address this question because the individual defendant before us has standing to challenge the CSAAA as unconstitutionally retrospective. We therefore need not separately address the school district‘s standing to bring the identical claim. Second, we conclude that because the CSAAA creates a new cause of action for child sexual abuse, the Act creates a new obligation and attaches a new disability with respect to past transactions or considerations to the extent it permits victims to bring claims for which any previously available cause of action would be time-barred. We therefore hold that the CSAAA amounts to unconstitutional retrospective legislation as applied to the plaintiffs’ claim under the Act against the defendants here.2 Accordingly, we affirm the district court‘s order granting the defendants’ motions to dismiss.
I. Background
¶5 The CSAAA is the latest in a series of amendments to the limitations period for civil claims of sexual abuse. Until 1990, sexual abuse claims, like other torts, were subject to a two-year statute of limitations. In 1990, the General Assembly lengthened the limitations period to six years for civil claims of sexual misconduct, including sexual abuse of a child.
¶6 In 1993, the General Assembly expanded the definition of disability to embrace a victim‘s psychological or emotional inability to acknowledge an assault or the harm resulting from an assault. Following this change, a victim of child sexual abuse whose memories of the abuse were repressed until later in adulthood had six years to bring a claim, measured from the time the victim became able to acknowledge the assault and its harm.
¶7 During the 2020 legislative session, legislators introduced H.B. 20-1296, which sought to amend
Once a statute of limitations has run, it is unconstitutional for the general assembly to revive a claim to which the statute of limitations defense applies. Thus, the proposal to allow civil sexual abuse claims despite the statute of limitations would likely be found unconstitutional by a Colorado court.
¶8 The following legislative session, the General Assembly passed S.B. 21-073, which amended
¶9 Separately, the legislature passed the CSAAA (S.B. 21-088), which was codified at
¶10 In the legislative declaration of the bill, the General Assembly found that a high percentage of child sexual abuse victims “delay disclosure well into adulthood, after the expiration of the time permitted to file civil actions against those responsible for the abuse” and that because of this delayed disclosure “statutes of limitations are often used to deny and defeat claims of childhood sexual abuse.”
¶11 The text of the Act declares that the civil action it creates is “in addition to, and does not limit or affect, other actions available by statute or common law, before or after January 1, 2022,” and that a claim under the Act “must be pleaded as a separate claim for relief if a complaint also asserts a common law claim for relief.”
¶12 For sexual misconduct occurring on or after January 1, 2022, the Act provides that a victim “may bring an action pursuant to this [Act] at any time without limitation.”
¶13 In a meeting of the House Judiciary Committee to discuss the bill, an OLLS representative confirmed that S.B. 21-088 sought to “establish a new statutory cause of action ... that‘s different from the common law cause of action.” Hearing on S.B. 21-088 before the H. Judiciary Comm., 73d Gen. Assemb., Reg. Sess. (June 3, 2021) (statement of Conrad Imel, OLLS). One of the bill‘s sponsors reinforced this understanding of the bill, stating, “What we‘re doing with Senate Bill 88 is creating a brand-new cause of action that‘s new to the law in Colorado.”
¶14 Concerns about the constitutionality of the bill were raised throughout the legislative process. In a hearing before the Senate Judiciary Committee, a University of Colorado Law School professor testified that, in his opinion, S.B. 21-088 was clearly unconstitutional retrospective legislation. According to the professor, by “creat[ing] a whole new cause of action,” the bill “impose[d] new obligations on past actions, which is literally what the [s]upreme [c]ourt said is forbidden by Section 11.” Hearing on S.B. 21-088 before the S. Judiciary Comm., 73d Gen. Assemb., Reg. Sess. (Colo. March 11, 2021) (testimony of Professor Richard Collins, Colo. Cath. Conf.). The professor opined that, in that regard, S.B. 21-088 was “indistinguishable”
¶15 Despite the concerns expressed about the bill‘s constitutionality,4 the legislature passed S.B. 21-088, and on July 6, 2021, the Governor signed the CSAAA into law.
II. Facts and Procedural History
¶16 From 2001 to 2005, A.S. was a student at Rangeview High School, which was operated by Aurora Public Schools (the school district). David James O‘Neill worked at Rangeview as a girls’ basketball and softball coach, attendance coordinator, and detention supervisor. O‘Neill recruited A.S. as a student athlete, and after an injury sidelined her, he appointed her the “student manager” of the team. A.S. alleges that O‘Neill used his position of authority to subject her to escalating levels of sexual abuse, including inappropriately touching her, exposing himself to her, and forcing her to perform oral sex on him over 100 times over the course of her four years at Rangeview, starting when she was 14 years old. A.S. claims that O‘Neill threatened her when she tried to refuse or resist. She asserts that the abuse was obvious “to anyone paying attention,” but that school officials did nothing to intervene or investigate, despite receiving a report from another coach who expressed concerns about O‘Neill‘s behavior.
¶17 A.S. maintains that she was unable to recognize the impropriety and severity of O‘Neill‘s abuse while she was a student at Rangeview, much less report it. But in 2007, when A.S. began to “fully understand the inappropriate nature of the sexual exploitation by O‘Neill,” she filed a report with the Aurora Police Department. The police informed her that her claims were time-barred by the applicable statute of limitations, so she did not bring any claims against O‘Neill or the school district at that time.5
¶18 On January 13, 2022, A.S. and B.S. brought a claim under the CSAAA against O‘Neill and the school district (the defendants), alleging that A.S. has suffered economic, emotional, and physical distress, including post-traumatic stress disorder, anxiety, depression, and daily “trauma triggering episodes” as a result of O‘Neill‘s abuse, much of which continues to affect her to this day. The complaint asserts that the defendants are jointly and severally liable for the injuries and damages she has suffered due to O‘Neill‘s sexual misconduct.
¶19 The defendants each moved to dismiss the complaint under
¶20 The plaintiffs appealed the trial court‘s order to the court of appeals. The school district filed a motion under
III. C.A.R. 50 Jurisdiction
¶21 We granted the petition for writ of certiorari under
IV. Discussion
¶22 We begin by addressing two objections the plaintiffs raise to the school district‘s standing to challenge the constitutionality of the CSAAA and conclude that neither objection precludes our review. Turning to the merits, we discuss the Story definition7 of an unconstitutionally retrospective law. Next, we analyze this court‘s application of the Story definition in In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002), and clarify that public policy considerations cannot salvage an otherwise unconstitutionally retrospective law. Finally, we apply the Story definition to the facts of this case. Because the CSAAA creates a new cause of action for sexual misconduct that predates the Act and for which any previously available claims are time-barred, it creates a new obligation and a new disability with respect to such conduct and therefore amounts to impermissible retrospective legislation under the Story definition. Accordingly, we hold that the CSAAA is unconstitutional as applied to the plaintiffs’ claim against the defendants.
A. Standing
A. Standing
1. Legal Principles
¶24 Because standing is a jurisdictional issue that “must be determined prior to a decision on the merits,” Hickenlooper v. Freedom from Religion Found., Inc., 2014 CO 77, ¶ 7, 338 P.3d 1002, 1006, we address the plaintiffs’ standing arguments first.9
¶25 The purpose of the standing inquiry is to test a litigant‘s right to raise a legal argument or claim. Reeves-Toney v. Sch. Dist. No. 1 in City & Cnty. of Denver, 2019 CO 40, ¶ 21, 442 P.3d 81, 85–86. A party must have standing for a court to exercise jurisdiction over a dispute. Ainscough v. Owens, 90 P.3d 851, 855 (Colo. 2004). Whether a party has standing is a question of law that we review de novo. Reeves-Toney, ¶ 20, 442 P.3d at 85.
¶26 To establish standing under Colorado law, a party must satisfy two criteria: (1) the party must have suffered injury-in-fact; and (2) this injury must be to a legally protected interest. Ainscough, 90 P.3d at 855 (citing Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535, 539 (1977)). The second prong of this inquiry presents the question of whether a party has a claim for relief under the constitution, the common law, a statute, or a rule or regulation. Id. at 856.
¶27 The plaintiffs challenge the school district‘s standing under the second prong. First, they contend that Colorado‘s retrospectivity clause protects only individuals, not the government, and thus confers no legally protected interest on a political subdivision such as the school district (assuming the school district is a political subdivision for the purposes of standing). Second, and relatedly, they argue that under the political subdivision doctrine, any interest the school district may have in avoiding the harm of retrospective legislation is not legally protected, i.e., it may not be vindicated through judicial intervention. See Denver Urb. Renewal Auth. v. Byrne, 618 P.2d 1374, 1379 (Colo. 1980) (describing the political subdivision doctrine as raising the “question [of] whether a legally protected interest is implicated“). We address each argument in turn.
2. Retrospectivity Clause
¶28 Colorado‘s constitution provides: “No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, ... shall be passed by the general assembly.”
¶29 In Bedford, two retired supreme court justices brought an action against the state auditor, seeking a declaratory judgment regarding their right to pensions allegedly payable to them under a state statute. 106 P.2d at 470. The auditor argued that the pension scheme violated
¶30 Relevant here, after rejecting the auditor‘s argument under
Even though a law creates pensionable status based on services wholly rendered prior to its enactment and in such sense might be considered retrospective in operation, it would not offend against
section 11 of article II of the Constitution , for this section, a part of the Bill of Rights, is for the protection of the rights of the citizen and is not applicable to the State.
Id. at 476 (citing Graham Paper Co. v. Gehner, 332 Mo. 155, 59 S.W.2d 49 (1933)).
¶31 In the more than eighty years since Bedford, this court has never cited Bedford for this proposition. To the contrary, this court has reviewed retrospectivity clause challenges by public entities on multiple occasions. See, e.g., Acad. of Charter Schs. v. Adams Cnty. Sch. Dist. No. 12, 32 P.3d 456, 465 (Colo. 2001) (permitting a school district‘s challenge to charter school legislation under
3. The Political Subdivision Doctrine
¶32 The plaintiffs further contend that under the political subdivision doctrine, the school district “exist[s] only for the convenient administration of the state government, created to carry out the will of the state,” Bd. of Cnty. Comm‘rs of Dolores Cnty. v. Love, 172 Colo. 121, 470 P.2d 861, 862 (1970), and therefore it cannot challenge the actions of superior state entities, including legislation passed by the General Assembly, see Denver Ass‘n for [Disabled] Child., Inc. v. Sch. Dist. No. 1 in the City & Cnty. of Denver, 188 Colo. 310, 535 P.2d 200, 204 (1975). Whatever the precise contours of the political subdivision doctrine may be, we conclude we need not address whether the school district lacks standing under that doctrine to challenge the CSAAA as unconstitutionally retrospective because O‘Neill clearly has individual standing to raise this claim.
¶33 In Lobato v. State, 218 P.3d 358 (Colo. 2009), we declined to address the school districts’ standing to raise constitutional challenges to a state statute, in comparable circumstances. In Lobato, a group of parents and fourteen school districts in the San Luis Valley sued the State of Colorado, the Colorado State Board of Education, the Commissioner of Education, and the Governor, claiming that Colorado‘s public school financing system violated
¶34 Here, O‘Neill and the school district raise the same argument regarding the unconstitutionality of the CSAAA. Both defendants contend that the Act is unconstitutionally
B. Merits
¶35 Having concluded that we have subject matter jurisdiction to address the constitutionality of the CSAAA, we now turn to the merits of this challenge. The defendants contend that the CSAAA is unconstitutionally retrospective to the extent it creates a new cause of action for sexual misconduct that predates the Act and for which any previously available cause of action would be time-barred. We agree.
1. Standard of Review
¶36 We review the constitutionality of statutes de novo, beginning with the presumption that the statute is constitutional. Justus v. State, 2014 CO 75, ¶ 17, 336 P.3d 202, 208; E-470 Pub. Highway Auth. v. Revenig, 91 P.3d 1038, 1041 (Colo. 2004). “Declaring a statute unconstitutional is one of the gravest duties impressed upon the courts,” one which we undertake only upon proof beyond a reasonable doubt that a statute is unconstitutional. People v. Moreno, 2022 CO 15, ¶ 9, 506 P.3d 849, 852 (quoting People v. Graves, 2016 CO 15, ¶ 9, 368 P.3d 317, 322).
2. Analysis
¶37 The
¶38 Several states, however, have adopted constitutional provisions that also prohibit after-the-fact legislation in the civil context.12 In Colorado‘s constitution,
¶39 It is well established that statutes are presumed to operate prospectively unless there is legislative intent to the contrary. City of Golden, 138 P.3d at 289; Brown v. Challis, 23 Colo. 145, 46 P. 679, 680 (1896);
¶40 In Denver, S.P. & P.R. Co. v. Woodward, 4 Colo. 162, 167–68 (1878), this court adopted the Story definition of an impermissibly retrospective law. Under that definition, a law violates
¶41 The Story definition focuses on laws that are substantive instead of procedural. In other words, while retroactive application of statutes is generally disfavored under both common law and statute, only retroactive application of a substantive law is constitutionally prohibited. See Specialty Rests. Corp., 231 P.3d at 399 (“[R]etroactive operation of a substantive statute constitutes impermissible retrospective application of that statute.“). By contrast, retroactive application of a law is permissible if the law effects a change that is merely procedural or remedial. DeWitt, 54 P.3d at 854.
¶42 In Colorado, “[a] statute is substantive if it creates, eliminates, or modifies vested rights or liabilities.... In contrast, a procedural statute relates only to remedies or modes of procedure to enforce existing substantive rights or liabilities ....” Specialty Rests. Corp., 231 P.3d at 399; Shell W. E&P, Inc. v. Dolores Cnty. Bd. of Comm‘rs, 948 P.2d 1002, 1012 (Colo. 1997).
¶43 Any law that “takes away any legal defense” is substantive. See, e.g., City of Colo. Springs v. Neville, 42 Colo. 219, 93 P. 1096, 1097 (1908) (“[I]t was held to be incompetent for the Legislature to create a new ground for the support of an existing cause of action, or to take away any legal defense to such an action.“); Brown, 46 P. at 680 (same); Woodward, 4 Colo. at 164–65 (holding that a statute is retrospective if it affects “an existing right of defense” to a cause of action); cf. Cont‘l Title Co. v. Dist. Ct., 645 P.2d 1310, 1315 (Colo. 1982) (holding that a statute was not retrospective in part because “[i]t does not remove an affirmative defense that might otherwise be asserted by [the defendant]“). For example, where the statute of limitations has run and a claim is
¶44 The plaintiffs rely heavily on this court‘s application of the Story definition in DeWitt, so special attention to that case is warranted. In DeWitt, the court analyzed a 1995 amendment to the
¶45 The plaintiffs here focus on language in DeWitt stating that in the context of a retrospectivity analysis, the existence of a vested right “may be balanced against public health and safety concerns, the state‘s police powers to regulate certain practices, as well as other public policy considerations,” and that a statute “must bear a rational relationship to the legitimate government interest that is asserted in order to be permissibly retroactive.” Id. at 855. Relying on this language, the plaintiffs argue that DeWitt stands for the proposition that even if a law is retrospective under the Story definition, it is nonetheless constitutional if it is reasonably related to a legitimate government interest.
¶46 Not so. The references in DeWitt to the consideration of public policy does not convert the Story definition into an ultimate balancing test of policy and constitutional interests. The quoted passage in DeWitt cited to three cases: Ficarra, 849 P.2d at 21; Van Sickle, 797 P.2d at 1271; and Lakewood Pawnbrokers, Inc. v. City of Lakewood, 183 Colo. 370, 517 P.2d 834, 838 (1973). Each of these cases concerned laws that enacted or amended building safety code requirements or licensing requirements in regulated industries. In each case, the holder of a building permit or license complained that a prospective change in the regulatory scheme had the retroactive effect of impairing their vested rights in the permit or license. In each case, this court rejected the challenge to the law. See Ficarra, 849 P.2d at 21 (holding that plaintiffs had no vested right in the renewal of their bail bond licenses); Van Sickle, 797 P.2d at 1271 (holding that reliance on a building permit does not insulate the permit holder from later changes in ordinances enacted under the police power for protection of the public); Lakewood Pawnbrokers, 517 P.2d at 838 (holding that it was not unconstitutional to apply licensing requirements to existing pawnbroker businesses).
¶47 Thus, these cases each considered public policy in the context of whether the law was a reasonable exercise of the legislative body‘s regulatory power. And importantly, they did so only as additional grounds to buttress the court‘s conclusion about the
¶48 We clarify today that there is no “public policy exception” to the ban on retrospective laws in
3. Application
¶49 The legislature was careful with S.B. 21-088 not to directly revive time-barred claims, which would plainly impair vested rights. See Ch. 442, sec. 1, § 4(a), 2021 Colo. Sess. Laws 2922, 2923 (“This act does not revive any common law cause of action that is barred and instead creates a new right for relief ....“); D.A.G., 607 P.2d at 1006 (holding that the legislature cannot revive an action to which the statute of limitations bar has attached). Instead, it created a three-year window to bring a new cause of action to accomplish the same ends. But the retrospectivity clause prohibits the legislature from “accomplish[ing] that indirectly, which it could not do directly.” Woodward, 4 Colo. at 167. The new cause of action under the CSAAA attaches liability to conduct that predates the Act and for which previously available causes of action would be time-barred. To this extent, the Act clearly creates a new obligation and disability with respect to past transactions or considerations, and thus meets the Story definition of an impermissible retrospective law.
¶50 Overwhelming evidence in the Act‘s language and legislative history demonstrate that the CSAAA creates a new substantive right. The text of the Act could not be clearer: “The civil action described in this section is in addition to ... other actions available by statute or common law ... and must be pleaded as a separate claim for relief if a complaint also asserts a common law claim for relief.” Ch. 442, sec. 2,
¶51 By providing victims of sexual misconduct a new statutory right of relief, the CSAAA necessarily creates a new obligation and attaches a new disability upon the individuals and entities from whom that relief can be demanded. As our case law makes clear, one party‘s new claim for relief is another party‘s new obligation or disability. “Right and remedy are reciprocal.” Brown, 46 P. at 680. Accordingly, the CSAAA‘s imposition of new liability to “transactions or considerations already past” is unconstitutional. Specialty Rests. Corp., 231 P.3d at 399.
¶52 Although it does not directly revive time-barred claims, the CSAAA‘s three-year window to bring a new cause of action for sexual misconduct that occurred between January 1, 1960, and January 1, 2022, seeks to achieve the same ends by other means. Yet for the same reason that the legislature cannot revive time-barred claims, see D.A.G., 607 P.2d at 1006, it cannot create a new cause of action that covers the same conduct
¶53 We do not hold that the CSAAA is unconstitutional in its entirety, or that all claims made under the CSAAA are precluded by the retrospectivity clause. Our holding does not affect claims brought under the CSAAA for which the previously applicable statute of limitations had not run as of January 1, 2022. Rather, we conclude the CSAAA is unconstitutionally retrospective to the extent that it permits a victim to bring a claim for sexual misconduct based on conduct that predates the Act and for which previously available causes of action were time-barred. The plaintiffs’ claim under the CSAAA against O‘Neill and the school district, which would have been time-barred under the previously applicable statute of limitations, therefore must be dismissed.
V. Conclusion
¶54 Our constitutional form of government has inherent costs; namely, the limitations it places on the legislature‘s ability to act in ways it deems to be in the public interest. But the people of this state determined that such constitutional limitations on the legislature‘s power were necessary to prevent the legislature from encroaching on certain rights they considered to be crucial to a flourishing society.
¶55 Without question, sexual abuse causes severe physical, psychological, and economic harm both to victims and their loved ones, and its destructive impact can last long after the abuse has ended. The fear of retaliation, stigmatization, or not being believed, as well as intense experiences of shame and anxiety, prevent many victims of sexual abuse, especially those who were children when the abuse occurred, from acknowledging the abuse they have suffered or the harm it has caused them until much later in life. We certainly understand the General Assembly‘s desire to right the wrongs of past decades by permitting such victims to hold abusers and their enablers accountable. But the General Assembly may accomplish its ends only through constitutional means. The retrospectivity clause of the
¶56 Accordingly, the district court‘s order granting the defendants’ motions to dismiss is affirmed.
Notes
1. Whether applying a newly created cause of action to conduct that occurred prior to the creation of the cause of action violates the Colorado constitutional prohibition against laws that are retrospective in operation.
2. Whether applying a newly enacted waiver of immunity from suit to conduct that occurred prior to the enactment of the waiver, and at a time when the immunity was in effect, violates the Colorado constitutional prohibition against laws that are retrospective in operation.