LINDA THOMPSON; RICK JACKMAN; AND CITY OF LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT v. SAMANTHA KILLARY
2022-SC-0308-DG
Supreme Court of Kentucky
FEBRUARY 15, 2024
TO BE PUBLISHED
OPINION OF THE COURT BY CHIEF JUSTICE VANMETER
REVERSING
The law of the Commonwealth states, “[n]o statute shall be construed to be retroactive, unless expressly so declared.”
for civil claims of childhood sexual assault and abuse. We hold that while the statute is remedial in nature and should be applied retroactively, Appellants hold a vested right in asserting a statute of limitations defense that is not overcome by the addition of a new triggering event and
I. BACKGROUND
This matter arises from the more than a decade of sexual abuse Samantha Killary allegedly endured at the hands of her adoptive father, Sean Jackman. Sean adopted Killary around 1993 when she was two years old. In 1997, Sean engaged in a pattern of sexual abuse that would last until 2009, the same year Killary turned 18. In 2018, Sean was convicted of multiple criminal offenses related to the abuse. Throughout the period of abuse, Sean was a police officer with the Louisville Metro Police Department (“LMPD“)2, as was his
In 2017, one year prior to the institution of this action, our General Assembly took the laudable action of reforming the statute of limitations for civil claims of childhood sexual abuse, extending the time limit from five years to ten years and adding a new triggering event: the conviction of the abuser.
On May 2, 2018, Killary brought this action against the various persons and entities she alleges played a role in her abuse. Killary alleges Thompson may have participated in some of the abuse and that Rick, Thompson, and the Louisville Metro Government (“Metro“) knew of the abuse and failed to take action to prevent it. Killary‘s complaint, thus, asserted both first-party claims against Sean and Thompson and third-party claims against Thompson, Rick and Metro. Finally, Killary asserts Metro is vicariously liable for the actions of its employees and brings additional claims for negligent hiring and intentional infliction of emotional distress. The claims other than those for childhood sexual abuse were dismissed and are not on appeal here.
Metro moved to dismiss the remaining charge on sovereign immunity grounds. Sean, Rick, and Thompson also sought dismissal, arguing that the action was time-barred by the 2007 version of
During the pendency of the appeal, the legislature again amended
In a divided opinion, the Court of Appeals reversed the decision of the trial court. The majority held that the 2017 version of the statute applied and created a new triggering event as to Sean that caused the limitations period for the claims against him to run upon his conviction for the abuse. As such, Killary‘s claims against him were well within the statute of limitations. As to Metro, Rick and Thompson, the majority reasoned that they had a vested right in the old statute of limitations,
Thompson, Rick, and Metro, the Appellants herein, petitioned for discretionary review pursuant to
The case before us presents only questions of law. Accordingly, we review
III. ANALYSIS
At the outset, we believe that analysis of the 2021 amendments to
The issues before us revolve around the various versions of
forth the applicable statute of limitations and provides certain triggering events that begin the running of the limitations period. Since the time the statute of limitations began to run on Killary‘s case in 2009 pursuant to the 2007 version of
At the time Killary‘s cause of action initially accrued, the statute then in force, the 2007 version, provided for a 5-year limitations period beginning upon the latest of three occurrences:
(a) Within five (5) years of the commission of the act or the last of a series of acts by the same perpetrator;
(b) Within five (5) years of the date the victim knew, or should have known, of the act; or
(c) Within five (5) years after the victim attains the age of eighteen (18) years.
In 2017,7 the legislature amended the statute to expand the limitations period to ten years and to add a new triggering event: “the conviction of a civil defendant for an offense included in the definition of childhood sexual abuse or
childhood sexual assault.”
Finally, in 2021, the General Assembly passed the current version of the statute. This time, the legislature made significant changes, including a provision explicitly applying the 10-year limitations period to actions against third parties. The current
(7) (a) As was its intention with the passage of 2017 Ky. Acts ch. 114, sec. 2, the General Assembly hereby states that the amendments enacted in 2017 Ky. Acts ch. 114, sec. 2 shall be applied retroactively to actions accruing before its effective date of June 29, 2017. This section is a remedial statute which is to be given the most liberal interpretation to provide remedies for victims of childhood sexual assault or abuse.
(b) Notwithstanding any provision of law to the contrary, any claim for childhood sexual assault or abuse that was barred as of March 23, 2021, because the applicable statute of limitations had expired is hereby revived, and the action may be brought if commenced within five (5) years of the date on which the applicable statute of limitations expired.
i. Retroactivity of the 2021 Amendments to KRS 413.249.
In determining the meaning of a statute, “we . . . look first to the plain language of a statute and, if the language is clear, our inquiry ends.” Univ. of Louisville v. Rothstein, 532 S.W.3d 644, 648 (Ky. 2017). “In interpreting a statute, ‘[w]e have a duty to accord to words of a statute their literal meaning
unless to do so would lead to an absurd or wholly unreasonable conclusion.‘” Id. (quoting Cosby v. Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004)). “[T]here is a strong presumption that statutes operate prospectively and that retroactive application of statutes will be approved only if it is absolutely certain the legislature intended such a result.” Vinson, 30 S.W.3d at 168. Nevertheless, the General Assembly is not required to recite “magic words” if the “enactment make[s] it apparent that retroactivity was the intended result.” Baker v. Fletcher, 204 S.W.3d 589, 597 (Ky. 2006). Further, the rule against retroactive application does not extend to remedial statutes in which new rights and duties are not created. Vinson, 30 S.W.3d at 168. As we noted in Stone v. Thompson, 460 S.W.2d 809, 810 (Ky. 1970), “enactments prescribing limitations on time relate only to remedy[.]”
The relevant portion of
As was its intention with the passage of 2017 Ky. Acts ch. 114, sec. 2, the General Assembly hereby states that the amendments enacted in 2017 Ky. Acts ch. 114, sec. 2 shall be applied retroactively to actions accruing before its effective date of June 29, 2017. This section is a remedial statute which is to be given the most liberal interpretation to provide remedies for victims of childhood sexual assault or abuse.
which, as a practical matter, would have had the same effect as what was drafted.8
a remedial statute must be so construed as to make it effect the evident purpose for which it was enacted, so that if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied although the statute does not in terms so direct[.]
Peabody Coal Co. v. Gossett, 819 S.W.2d 33, 36 (Ky. 1991) (quoting 73 Am. Jur. 2d Statutes § 354 (1974)). The General Assembly has at least made it clear that as a remedial provision,
and consideration may be provided to victims of sexual abuse. The statute is, therefore, retroactive and can be applied to the claims brought by Killary.
ii. The General Assembly may not divest a vested right through legislation.
Our holding that
Our jurisprudence has long recognized that a party has a vested right to assert the running of a statute of limitation as a defense. The first indirect reference can be found in the case of Davis v. Ballard, 24 Ky. (1 J.J.Marsh) 563 (1829), which concerned the legislature‘s decision to remove three years from the calculation of the period in which an appeal from a judgment of the trial court could be brought.9 Faced with the question of appeals previously foreclosed by the limitations period, the court denied the existence of a vested right in the running of the period to appeal, but also observed a difference between the statute at issue and one which would revive hitherto unpursued
claims. As to the latter, the court wrote that statutes of limitations, “originate in considerations of public policy, and when enacted to operate prospectively, promote the peace and well being of society, without invading the rights of any.” Id. 573.
In Cassity v. Storms, 64 Ky. (1 Bush) 452 (1866), the court addressed an 1865 act suspending the statute of limitations in Bath County from 1861 “until law and order are again restored.” Id. 454. Faced with the question of whether a matter which became time-barred under a prior statute but was arguably revived by the 1865 act, the court explained,
There can be no doubt but that the policy of limitations, as to when it shall or shall not bar further proceedings, or whether there shall be any limitations to causes of action, &c., are all within the sovereign control of the Legislature, and may be changed or repealed at any time; but such action of the Legislature cannot affect or divest vested rights. So that, however omnipotent may be their control over such statutes, yet, when the bar is complete before the repeal, modification, extension, or suspension of such statutes, such alterations will never be construed as attempting to revive rights barred at the time of the new enactment, unless expressly so provided, and then its constitutional validity will be necessarily involved.
From Davis and Cassity, our jurisprudence presents nearly 200 years of protection for those possessing a statute of limitations defense. See Davis v. Davis, 4 Ky.Op. 602 (1870) (“the Legislature of the State may change, modify,
or repeal statutes of limitations at its will, so that it does not change, or injuriously affect, vested rights, rights perfected by the law before its modification, or repeal[]“); McCracken Co. v. Mercantile Trust Co., 84 Ky. 344, 1 S.W. 585, 586 (1886) (“A retrospective law which divests a vested right is beyond the constitutional limit of legislative power[]“); Lawrence v. City of Louisville, 96 Ky. 595, 29 S.W. 450, 451 (1895) (“The lawmaking branch of the government has no more power to destroy a defense that has accrued than it has to take the citizen‘s property ‘without due process of law[]“); Heath v. Hazelip, 159 Ky. 555, 167 S.W. 905, 907 (1914) (“the Legislature cannot remove a bar of limitation which has already become complete“); Leiserson & Adler, Inc. v. Keam, 266 S.W.2d 352, 355 (Ky. 1954) (“It is beyond the power of the Legislature to revive an action which has abated prior to the passage of the statute[]“); Louisville Shopping Center, Inc. v. City of St. Matthews, 635 S.W.2d 307, 310 (Ky. 1982) (“It is clear that a legislative body may not arbitrarily, or without due process, by retroactive legislation terminate or impair the judicial rights of a litigant. Such rights are described and viewed as vested[]” (internal citations omitted)); William A. Pope Co. v. Howard, 851 S.W.2d 460, 462 (Ky. 1993) (“An amendment of a statute of limitations will not revive a cause of action previously expired[]“); Johnson v. Gans Furniture Indus., Inc., 114 S.W.3d 850, 854-55 (Ky. 2003) (“Although an amendment that extends the period of limitation may be applied to a claim in which the period has not already run, it may not be applied to revive a claim that has expired without impairing vested rights[]“).
The aforementioned jurisprudence resolves the question of whether Killary‘s claims were time-barred at the time she brought this action. The Court of Appeals reasoned her claims were not so barred because “[
the assertion of a statute of limitations defense to Killary‘s childhood sexual abuse claims.
iii. KRS 413.249(7)(b)
This brings us to the language of
Notwithstanding any provision of law to the contrary, any claim for childhood sexual assault or abuse that was barred as of March 23, 2021, because the applicable statute of limitations had expired is hereby revived, and the action may be brought if commenced within five (5) years of the date on which the applicable statute of limitations expired.
Notably, the Legislative Research Commission (“LRC“) note and the language of the Act which amended the statute, 2021 Ky. Acts ch. 89, sec. 3, both limit the 2021 amendment to “causes of action accruing on or after [March 23, 2021], and to causes of action accruing before [March 23, 2021], if the applicable statute of limitations, as it existed prior to [March 23, 2021], has not yet run before [March 23, 2021].” Killary urges this Court to view this limiting language as non-instructive as to the intent of the legislature, and instead to focus solely on the statutory language.
The applicability of an LRC note that places temporal limits on a statute‘s application has been recently addressed by this Court. At issue in Holcim v. Swinford, 581 S.W.3d 37 (Ky. 2019) was a workers’ compensation statute which limited the applicability of the statute to those actions occurring after December 12, 1996, and which “have not been fully and finally adjudicated, or are in the appellate process, or for which time to file an appeal
has not lapsed, as of the effective date of this Act.” Id. 43.10 The codified language of the statute itself did not contain this limitation, but it did appear as an LRC note. We held the LRC note to be indicative of the legislature‘s intent as to the extent of the statute‘s retroactivity, noting that KRS 7.131(3) allows the LRC to “omit all laws of a private, local, or temporary nature.” Id. 44.
In Martin v. Warrior Coal LLC, 617 S.W.3d 391 (Ky. 2021), the Court again was presented with a workers’ compensation statute whose LRC note contained an uncodified temporal limit.11 In that case,
In this case, the non-codified language of 2021 Ky. Acts ch. 89, sec. 3, as repeated in the LRC note to
IV. CONCLUSION
This Court is obligated above all else to effectuate the intent of the legislature in accordance with our long-standing jurisprudence. As our predecessor court eloquently put it,
To decide questions of this character, is often an unpleasant task; but when they are fairly presented, they should be disposed of, with that moral firmness, which arises from pure motives, and a conscious devotion to official duty. The fear of displeasure and the
hope of temporary applause, should have no place in the bosom of the judge.
For the foregoing reasons, we reverse the Court of Appeals, and affirm the ruling of the Jefferson Circuit Court dismissing the claims against Linda Thompson, Rick Jackman, and Louisville Metro Government.
All sitting. Conley, Lambert, and Thompson, JJ., concur. Keller concurs in result only. Nickell, J., concurs by separate opinion in which Thompson, J., joins. Bisig, J., concurs in part and dissents in part by separate opinion.
NICKELL, J., CONCURRING: I fully concur with the majority‘s decision to reverse the Court of Appeals and reinstate the dismissal of Killary‘s claims against Linda Thompson, Rick Jackman, and Louisville Metro. In my view, the majority correctly recognized that Kentucky law has long deemed a ripened limitations defense to be a vested right beyond the power of the legislature to impair. I write
Admittedly, this Court has often held the right to due process of law under the Kentucky Constitution is co-extensive with the due process clause of the Fourteenth Amendment to the United States Constitution. Gasaway v. Commonwealth, 671 S.W.3d 298, 333 (Ky. 2023).13 However, we may properly
diverge from interpretations of comparable federal constitutional rights “where the dictates of our Kentucky Constitution, tradition, and other relevant precedents call for such action.” Commonwealth v. Cooper, 899 S.W.2d 75, 78 (Ky. 1995) (quoting Holbrook v. Knopf, 847 S.W.2d 52, 55 (Ky. 1992)). Under Kentucky law, the steadfast treatment of a ripened limitations defense as a vested right unmistakably compels our continued adherence to this foundational principle on the merits and as a matter of stare decisis.
Binding Kentucky precedent on whether a legislature may retroactively revive a time-barred claim has long conflicted with federal authority. As early as 1885, the United States Supreme Court declared, “[w]e certainly do not understand that a right to defeat a just debt by the statute of limitations is a vested right, so as to be beyond legislative power in a proper case.” Campbell v. Holt, 115 U.S. 620, 628 (1885). On the contrary, the decisions of our predecessor Court explicitly viewed a ripened limitations defense as a vested right beyond legislative control both before and after the Campbell decision. Davis v. Ballard, 24 Ky. (1 J.J.Marsh) 563 (1829); Cassity v. Storms, 64 Ky. (1 Bush) 452 (1866); McCracken Co. v. Mercantile Trust Co., 84 Ky. 344, 1 S.W. 585, 586 (1886); and Lawrence v. City of Louisville, 96 Ky. 595, 29 S.W. 450, 451 (1895). Importantly, the reasoning of the Kentucky Lawrence decision specifically mirrors that of the dissent in Campbell which observed
I am unable to yield assent to any of the specious arguments advanced to show that the defense of the statute, when it has once vested, is an imperfect right which the legislature may, at its mere will, abrogate and take away. I think it is then a vested right, and that vested rights are a species of property which the fourteenth amendment of the constitution was intended to protect from adverse state legislation.
115 U.S. at 632 (Bradley, J., dissenting); cf. 29 S.W. at 451 (“The lawmaking branch of the government has no more power to destroy a defense that has accrued than it has to take the citizen‘s property ‘without due process of law.“). The Lawrence decision also cited the preeminent jurist and scholar, Thomas M. Cooley, for the proposition that “[i]t is certain that he who has satisfied a demand cannot have it revived against him, and he who has become released from a demand by the operation of the statute of limitation is equally protected.” 29 S.W. at 452 (citation omitted). Indeed, the holding of the Supreme Court‘s Campbell majority has long been considered an outlier by legal commentators because “the practical result
The divergence between Kentucky and federal law on this point has continued to the present day. In Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 (1945), the Supreme Court reaffirmed its decision in Campbell and further concluded “that lifting the bar of a statute of limitation so as to restore a remedy lost through mere lapse of time is [not] per se an offense against the Fourteenth Amendment.” Id. 316. Yet, the Supreme Court also specifically identified the decision of our predecessor Court in Jackson v. Evans, 284 Ky. 748, 145 S.W.2d 1061 (1940), along with the decisions of several other state courts that
have not followed [Campbell] in construing provisions of their constitutions similar to the due process clause. Many have, as they are privileged to do, so interpreted their own easily amendable constitutions to give restrictive clauses a more rigid interpretation than we properly could impose upon them from without by construction of the federal instrument which is amendable only with great difficulty and with the cooperation of many States.
In the present appeal, the legislature clearly possessed a laudable policy basis in attempting to revive expired claims of sexual abuse. However, the
desirability of this policy preference is not the question before us. Instead, the question is whether the legislature has the constitutional authority to impair the vested right inherent in a ripened limitations defense. Over 200 years of sound Kentucky jurisprudence convinces me that it does not. Unlike valid impositions on the fundamental rights of life and liberty which presuppose a legitimate exercise of the police power, “[t]here can be no divesting of vested rights by legislative fiat.” Compare Posey v. Commonwealth, 185 S.W.3d 170, 175 (Ky. 2006) with 16B Am. Jur. 2d
In my view, statutes of limitations cannot be reduced to a mere technicality. “On the contrary, they have long been respected as fundamental to a well-ordered judicial system.” Bd. of Regents of the Univ. of N.Y. v. Tomanio, 446 U.S. 478, 487 (1980). While I share Judge Maze‘s sympathy with “the General Assembly‘s clearly expressed intention to expand the remedies available to
Thompson, J., joins.
BISIG, J., CONCURRING IN PART AND DISSENTING IN PART: Today‘s majority decision thwarts the General Assembly‘s express intention to revive civil childhood sexual abuse claims. The legislature‘s efforts to revive those claims were not only laudable, but also in furtherance of a compelling governmental interest, narrowly tailored, and wholly within constitutional limits. By failing to give effect to that express intention, today‘s decision again gives a windfall to the perpetrators and enablers of childhood sexual abuse, who once more reap the wholly unjust benefit of avoiding liability on the legal technicality of an expired statute of limitations. Therefore I respectfully dissent.
I agree with much of the majority‘s well-written opinion, including its conclusions that we must consider the 2021 amendment to
I. The 2021 Amendment‘s Codified Claim-Revival Provision Takes Precedence
As the majority acknowledges, the 2021 amendment expressly states the General Assembly‘s intention to revive expired civil childhood sexual abuse claims. Indeed, the amendment expressly states:
Notwithstanding any provision of law to the contrary, any claim for childhood sexual assault or abuse that was barred as of March 23, 2021, because the applicable statute of limitations had expired is hereby revived, and the action may be brought if commenced within five (5) years of the date on which the applicable statute of limitations expired.
Yet the majority concludes that an uncodified limiting provision of the 2021 amendment overrides this express—and codified—statement of the General Assembly‘s intention to revive expired claims. I disagree.
The uncodified provision is directly contrary to the express revival provision, stating that the 2021 amendment applies
to causes of action accruing on or after the effective date of this Act, and to causes of action accruing before the effective date of this Act, if the applicable statute of limitations, as it existed prior to this Act, has not yet run before the effective date of this Act.
2021 Ky. Acts ch. 89, § 3 (emphasis added). Admittedly, although not codified, this limiting language nonetheless has force of law because it is a temporary provision defining the temporal scope of the statute.
The 2021 amendment‘s claim-revival provision is an unusual feature not seen in many statutes. Moreover, it appears in a section of the statute in which the General Assembly specifically expressed its intentions regarding retroactivity. I thus have little trouble concluding the revival provision of the 2021 statutory amendment was a purposeful and intentional act by the General Assembly.
In contrast, the provision stating that the amendment does not apply to expired claims appears at the end of the Act, amid a string of other commonplace boilerplate provisions regarding matters such as severability of provisions determined to be invalid and the effective date of the Act. See 2021 Ky. Acts ch. 89, §§ 3, 5-6. Moreover, this limiting provision is patently inconsistent with the plainly intentional claim-revival provision. As such, I conclude the uncodified limiting provision was included in the Act by mistake, as it relates to the rather commonplace issue of temporal scope and is plainly inconsistent with the civil claim-revival provision.15
must be guided by the intent of the legislature in enacting the law. No single word or sentence is determinative, but the statute as a whole must be considered. In order to effectuate the legislative intent, words may be supplied, omitted, substituted, or modified. The purpose is to give effect to the intent of the legislature.
Landrum v. Commonwealth ex rel. Beshear, 599 S.W.3d 781, 788 (Ky. 2019) (quoting Cnty. of Harlan v. Appalachian Reg‘l Healthcare, Inc., 85 S.W.3d 607, 611 (Ky. 2002)). Thus, where we conclude statutory language is plainly the result of mistake rather than legislative intent, we
have the power and authority to correct [it] when so plainly apparent, in order to carry out and enforce what was plainly the intent and purpose of the Legislature, and especially so when it may be done so as not to impair or in any wise modify such intent and purpose. The universal rule is that in constructing statutes it must be presumed that the Legislature intended something by what it attempted to do, and, further, than any clearly apparent mishap in the insertions or omission of a word or words or punctuation which would destroy or impair what is otherwise the plain intent and purpose should be eliminated, and, if necessary to carry out that intent and purpose, such omissions may be supplied by the courts. When such authority is exercised within such limitations, it does not transgress the rule that courts should not legislate, but only construe.
Grieb v. Nat‘l Bond & Inv. Co., 264 Ky. 289, 94 S.W.2d 612, 616-17 (1936); see also Commonwealth v. Grinstead, 108 Ky. 59, 55 S.W. 720, 724 (1900) (noting that courts may reject statutory language that is “a manifest contradiction of the apparent purpose of the enactment.“).
Here, the statute‘s limiting provision was plainly mistaken at least insofar as it contradictorily purports to bar application of the statute‘s civil claim-revival provision to expired civil claims. In considering Killary‘s civil childhood sexual abuse claims, I would thus give effect to the claim-revival provision in order to effectuate the General Assembly‘s plain intent for the 2021 amendment to revive expired civil childhood sexual abuse claims.
II. The General Assembly‘s Revival of Civil Childhood Sexual Abuse Claims Is Legally Permissible and Within Constitutional Limits.
I also disagree with the majority‘s conclusion that the General Assembly is wholly barred from reviving the expired statutes of limitations at issue in this case. I take no quarrel with the majority‘s assertion that a party‘s ability to raise the defense of an expired statute of limitations is a vested right. As the majority‘s historical
Notably, however, we also held early on that this limitation on legislative power is not without exception: “He is, then, beyond the power of the legislature to divest him of his rights therein, except by his consent or due process of law.” Id. (emphasis added). This “except” language is clearly intended to carve out a limited exception to the general rule of the primacy of the vested rights analysis. The unique and grave nature of childhood sexual assaults compels me to further explore this exception.
It is widely recognized that victims of childhood sexual abuse often face a daunting series of obstacles in the quest to bring civil claims before expiration of the statute of limitations. Indeed, as one of the authors of the 2021 amendment, Representative Lynn Bechler, noted in the press,
[m]ultiple studies show that most children who experience sexual abuse do not disclose it, or significantly delay reporting it. Because of the existing statute of limitations on these crimes, this often leaves many adult victims of childhood sexual abuse without recourse.
Lynn Bechler, Opinion, Bechler legislative update, The Times Leader (Princeton, Ky.), Mar. 24, 2021. Representative Bechler further noted that the Act “gives the victims more time to seek justice for these heinous crimes.” Id. Governor Beshear echoed that sentiment in his Executive Message accompanying his signature of the Act, noting that
[m]ost children, in particular the very young, do not disclose abuse in real time. . . . we must do everything we can to create the safe pathways so that survivors of childhood sexual abuse feel empowered to make their voices heard and tell their stories in their own time, while ensuring we can still hold the perpetrators accountable.
Kentucky Governor‘s Message, 2021 Reg. Sess. H.B. 7.
The governmental interest in providing relief from such overwhelming unjust circumstances is evident and undoubtedly compelling.
Other more recent cases might be read to suggest that the legislature may never revive an expired cause of action, even where so doing would not violate due process protections. See Johnson v. Gans Furniture Indus., Inc., 114 S.W.3d 850, 854-55 (Ky. 2003) (“[A]n amendment . . . may not be applied to revive a claim that has expired without impairing vested rights.“); Officeware v. Jackson, 247 S.W.3d 887, 890 (Ky. 2008) (“[A]n amendment . . . may not revive a limitations period that has expired.“). I consider these cases to merely state the general rule that the legislature may not revive expired causes of action, while neglecting to reference the attendant exception that the legislature may revive expired causes of action where doing so comports with due process. The Court, as it frequently does, must balance governmental objectives with individual rights. Given the ambiguity arising from these cases, I would take the opportunity today to clarify that the legislature is prohibited only from reviving expired claims where doing so would offend constitutional due process limits. Lawrence, 29 S.W. at 452. Indeed, it defies common sense to hold that while our criminal laws allow one to be deprived of liberty or even life by due process of law, a
Today, I would therefore again reiterate what we held long ago: Under Kentucky law, the General Assembly may revive expired causes of action so long as in so doing, it does not violate due process protections. The 2021 amendment‘s claim-revival provision commits no such violation.
Section 2 of the Kentucky Constitution enshrines our due process protections, which include both a procedural and a substantive component. Stephens v. State Farm Mut. Auto. Ins. Co., 894 S.W.2d 624, 627 (Ky. 1995); Miller v. Johnson Controls, Inc., 296 S.W.3d 392, 397 (Ky. 2009). “At its most basic level, procedural due process ensures that one is not unfairly deprived of life, liberty, or property without receiving a hearing, adequate notice, and a neutral adjudicator.” White v. Boards-Bey, 426 S.W.3d 569, 574 (Ky. 2014). In contrast, substantive due process “is based on the idea that some rights are so fundamental that the government must have an exceedingly important reason to regulate them, if at all.” Miller, 296 S.W.3d at 397. Appellants’ argument that the General Assembly lacks authority to revive expired causes of action thus invokes substantive rather than procedural due process.
In considering constitutional challenges, I begin as always with the “strong presumption . . . in favor of the statute‘s constitutionality” and by recognizing that “an act should be held valid unless it clearly offends the limitations and prohibitions of the Constitution.” Stephens, 894 S.W.2d at 626. Where the statute is alleged to violate constitutional substantive due process limitations, the level of scrutiny we apply depends on the nature of the statute‘s effects. If the challenged legislation significantly interferes with the exercise of a fundamental right, we apply strict scrutiny. Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 466 n.25 (Ky. 2011). That is, we will uphold the statute only if it “furthers a compelling governmental interest and is narrowly tailored to that interest.” Beshear v. Acree, 615 S.W.3d 780, 816 (Ky. 2020). For other types of legislation, we apply ordinary scrutiny and thus uphold the statute so long as it is “rationally
In the present case,
I easily conclude that the claim-revival provision thus serves a compelling governmental interest in ensuring that childhood sexual abuse victims are afforded a fair and reasonable opportunity to pursue justice and compensation. I likewise conclude the statute is narrowly-tailored to serve that interest, particularly as it limits the claim-revival period to a narrow five-year window. See
My conclusion today is founded upon fundamental considerations of justice, due process principles, and the exceptionally unique circumstances presented by adult survivors of childhood sexual abuse faced with claims otherwise extinguished solely by operation of the statute of limitations. It is difficult if not impossible to conceive of other circumstances in which the need to remedy overwhelming injustice by revival of expired statutes of limitation might constitute a compelling or even legitimate state objective. That said, the present case clearly does present such circumstances, and I thus perceive no constitutional impediment to enforcement of the claim-revival provision.
Killary had five years from her eighteenth birthday in 2009 to bring her claims, under both the statute of limitations then in effect and under the subsequent 2013 amendment to that statute.
COUNSEL FOR APPELLANT, LINDA THOMPSON:
Carol Schureck Petitt
Vaughn Petitt Legal Group, PLLC
COUNSEL FOR APPELLANT, RICK JACKMAN:
William H. Brammell, Jr.
Kayla M. Campbell
J. Kent Wicker
Wicker/Brammell PLLC
COUNSEL FOR APPELLANT, CITY OF LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT:
Kristie Babbitt Walker
Kathryn Delaine Meador
Jefferson County Attorney‘s Office
COUNSEL FOR APPELLEE:
Lindsy Lopez
Tad Thomas
Thomas Law Offices, PLLC
COUNSEL FOR AMICUS, AMERICAN ASSOCIATION FOR JUSTICE:
Joshua D. Hicks
Hicks & Funfsinn, PLLC
COUNSEL FOR AMICUS, CHILD USA:
John Abaray
Abaray Craddock & Smith, PLLC
COUNSEL FOR AMICUS, EXECUTIVE COMMITTEE OF THE SOUTHERN BAPTIST:
John O. Sheller
Kirby Black
Steven T. Clark
Stoll Keenon Ogden
COUNSEL FOR AMICUS, KENTUCKY JUSTICE ASSOCIATION:
A. Nicholas Naiser
Naiser Law Office
COUNSEL FOR AMICUS, LIFEWAY CHRISTIAN RESOURCES:
Stewart C. Burch
Logan Burch & Fox, PLC
COUNSEL FOR AMICUS, SOUTHERN BAPTIST CONVENTION:
Bryan H. Beauman
Sturgill, Turner, Barker & Moloney, PLLC
COUNSEL FOR AMICUS, SOUTHERN BAPTIST THEOLOGICAL SEMINARY:
Bryan E. Leet
Sharon L. Gold
Thomas E. Travis
Wyatt Tarrant & Combs,
Notes
Thus, there appears to be no mistake in the limiting provision at least insofar as the General Assembly intended to limit application of the Act in the criminal context to “causes of action accruing before the effective date of this Act, if the applicable statute of limitations, as it existed prior to this Act, has not yet run.” 2021 Ky. Acts ch. 89, § 3. However, the constitutional prohibition against ex post facto laws does not apply to civil claims, and thus to the extent the limiting provision states the amendment reviving expired civil claims does not apply to expired claims, it is plainly contradictory and mistaken. See City of Villa Hills v. Kentucky Ret. Sys., 628 S.W.3d 94, 111 (Ky. 2021) (noting that prohibition on ex post facto laws generally has no application to civil matters).