PRATTE, APPELLANT, v. STEWART, APPELLEE.
No. 2009-0953
Supreme Court of Ohio
Submitted February 16, 2010—Decided May 5, 2010.
[Citе as Pratte v. Stewart, 125 Ohio St.3d 473, 2010-Ohio-1860.]
Robert W. Cettel, for respondent.
O‘CONNOR, J.
{¶ 1} This appeal requires a determination of the appropriate statute of limitations for a claim resulting from childhood sexual abuse in which the claimant alleges that memories of the abuse were repressed. Appellant, Amy Pratte, asserts that the 12-year statute of limitations in
{¶ 2} Conversely, appellee, Rodney Stewart, contends that
{¶ 3} We hold that the 12-year statute of limitations in
{¶ 4} We therefore affirm the judgment of the court of appeals.
Relevant Background
{¶ 5} On April 14, 2008, Pratte filed a lawsuit against Stewart alleging that he sеxually assaulted her on three occasions when she was a child, the most recent occasion happening in the fall of 1984. Pratte was 33 years old at the time she filed the lawsuit. She alleged that she had repressed memories of the sexual abuse until April 20, 2007, when a news event triggered the recovery of the memories.
{¶ 6} Stewart moved to dismiss Pratte‘s complaint pursuant to
{¶ 7} Pratte countered that this court‘s holding in Ault v. Jasko, 70 Ohio St.3d 114, 637 N.E.2d 870—that the discovery rule applies to toll the statute of limitations while a victim of childhood sexuаl abuse represses memories of that abuse—remains viable despite the enactment of
{¶ 8} The trial court granted Stewart‘s motion to dismiss, finding that the legislative intent in granting a minor 12 years after reaching majority in which to bring an action for childhood sexual abuse was to permit the minor a period of time to recall repressed memories. The trial court therefore rejected Pratte‘s arguments and held that her claim was filed beyond the time permitted by
{¶ 9} On Pratte‘s appeal to the Second District Court of Appeals, the court affirmed the trial court‘s judgment. The Second District found that “the legislature by enacting
{¶ 11} (1) ”
{¶ 12} (2) “Repressed memory as a tolling mechanism of the civil statute of limitations remains viable after the effective date of
{¶ 13} (3) “The statute of limitations period for sexual abuse in Ohio begins to run when the victim recalls or otherwise discovers that he or she was sexually abused, or when through the exercise of ordinary diligence, the victim should have discovered the abuse.”
{¶ 14} (4) “The statute of limitations is tolled where a victim of childhood sexual abuse represses memories of that abuse until a later time.”
Analysis
A. History of the Statute of Limitations for Claims of Childhood Sexual Abuse
{¶ 15} A discussion of the history of the limitations period applicable to claims of childhood sexual abuse is useful to our resolution of Pratte‘s appeal.
{¶ 16} Prior to the enactment of the statute at issue, the General Assembly had not enacted a limitations period specifically for claims of childhood sexual abuse. In Doe v. First United Methodist Church (1994), 68 Ohio St.3d 531, 629 N.E.2d 402, this court was asked to determine what statute of limitations applied to such actions. We concluded that a cause of action premised upon acts of sexual abuse was subject to the one-year statute of limitations for assault and battery in former
{¶ 17} Having determined the relevant limitations period, we went on to address when a claim for childhood sexual abuse accrues. The defendants in Doe argued that such a claim accrued on the victim‘s 18th birthday, while the plaintiff sought аpplication of the discovery rule. This court found that the facts of the case before it did not require us to consider whether to apply the discovery rule to toll the limitations period in cases involving childhood sexual abuse. Id. at 541, 629 N.E.2d 402. The court ultimately held, “A minor who is the victim of sexual abuse has one year from the date he or she reaches the age of majority to assert any claims against the perpetrator arising from the sexual abuse where the victim knows the identity of the perpetrator and is fully aware of the fact thаt a battery has occurred.” Id. at paragraph two of the syllabus.
{¶ 18} In Ault v. Jasko, however, we were presented with facts requiring us to determine whether to apply the discovery rule in cases alleging childhood sexual
{¶ 19} This court held: “The discovery rule applies in Ohio to toll the statute of limitations where a victim of childhood sexual abuse represses memories of that abuse until a later time.” Id. at paragraph one of the syllabus. Thus, this court held: “The one-year statute of limitations period for sexual abuse in Ohio begins to run when the victim recalls or otherwise discovers that he or she was sexually abused, or when, through the exercise of reasonable diligence, the victim should have discovered the sexual abuse.” Id. at paragraph two of the syllabus.
{¶ 20} Both Chief Justice Moyer аnd Justice Wright dissented from the majority‘s creation of “a rule of law that would permit a person at any age after any lapse of time between the alleged sexual abuse and the revived memory of such abuse to sue the alleged abuser for money damages.” Id. at 120, 637 N.E.2d 870. Chief Justice Moyer emphasized that “[i]f that is to be the law of Ohio, it is the General Assembly that should declare it as such rather than this court.” Id. Chief Justice Moyer further explained:
{¶ 21} “The proper forum to determine such issues is in the General Assembly where all views, all relevant information, all scientific data, and all empirical studies can be presented, reviewed and debated by those who have an interest in the issue. That process did not occur, nor could it have occurred, in the case before us.
{¶ 22} “There probably will be a day, as there has been regarding the forensic use of DNA, when courts can be given reliable, competent information on the issue of repressed memory. That day is not here. We should dispose of this case with a strong dose of judicial restraint. Until the General Assembly acts on the issue, we should apply our holding in Doe v. First United Methodist Church (1994), 68 Ohio St.3d 531, 629 N.E.2d 402, and hold that Kathy Ault‘s cause of action for assault and battery against John Jasko should have been filed within one year after the date of her eighteenth birthday.” Id.
{¶ 23} Justice Resnick concurred in the majority‘s decision in Ault but agreed with the dissenters’ view that the General Assembly is the most appropriate body to establish a discovery rule for cases of childhood sexual abuse. Id. at 119, 637 N.E.2d 870. However, Justice Resnick believed that until the General Assembly chose to act, this court could interpret the relevant statute of limitations to allow potentially valid claims to prоceed. Id.
{¶ 25} Shortly before the decision in Doe v. Archdiocese of Cincinnati was released, on March 23, 2006, the General Assembly enacted a statute of limitations expressly for causes of action resulting from childhood sexual abuse, in 2006 Am.Sub.S.B. No. 17. S.B. 17 became effective on August 3, 2006, and amended former
B. Retroactive Application of R.C. 2305.111(C)
{¶ 26} In her first proposition of law, Pratte challenges the retroactive application of
1. Retroactivity
{¶ 27} Although neither party nor the lowеr courts address retroactivity correctly, the proper analysis for determining whether a statute can be applied retroactively is summarized in State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167:
{¶ 28} “It is well-settled law that statutes are presumed to apply prospectively unless expressly declared to be retroactive.
{¶ 29} With these principles in mind, this court reiterated its two-part test for evaluating whether a statute may be applied retroactively:
{¶ 30} “First, the reviewing court must determine as a threshold matter whether the statute is expressly made retroactive. LaSalle, 96 Ohio St.3d 178, 772 N.E.2d 1172, citing Van Fossen, 36 Ohio St.3d 100, 522 N.E.2d 489, at paragraphs one and two of the syllabus. The General Assembly‘s failure to clearly enunciate retroactivity ends the analysis, and the relevant statute may be applied only prospectively. Id. If a statute is clearly retroactive, though, the reviewing court must then determine whether it is substantive or remedial in nature. LaSalle at 181, 772 N.E.2d 1172.” Id. at ¶ 10.
2. Express Designation of Retroactivity
{¶ 31} We begin our analysis by ascertaining whether the General Assembly expressly made the 12-year statute of limitations in
{¶ 32} Uncodified Section 3(B) of S.B. 17 states:
{¶ 33} “The amendments to section 2305.11 of the Revised Code made in this act shall apply * * * to all civil aсtions brought by a victim of childhood sexual abuse for a claim resulting from childhood sexual abuse that occurs on or after the effective date of this act * * * and to all civil actions brought by a victim of childhood sexual abuse for a claim resulting from childhood sexual abuse that occurred prior to the effective date of this act in relation to which a civil action for that claim has never been filed and for which the period of limitations applicable to such a civil action prior to the effective date of this act has not expired on the effective date of this act.” (Emphasis added.)
{¶ 34} In Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, we discussed two examples of clear expressions of retroactivity. We first referred to our holding in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, where we found a clearly expressed legislative intent for former R.C. 4121.80 to apply retroactively based on the following passage: “‘This section applies to and governs any action * * * pending in any court on the effective date of this section * * * notwithstanding any provisions of any prior statute or rule of law of this state.‘” Hyle at ¶ 15, quoting former R.C. 4121.80(H). We also
{¶ 35} Similar to former R.C. 4121.80 and 2950.09, Section 3(B) of S.B. 17 expressly makes the 12-year statute of limitations in
3. Substantive v. Remedial
{¶ 36} Because
{¶ 37} It is well established that a statute is substantive if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction, or creates a new right. Van Fossen, 36 Ohio St.3d at 107, 522 N.E.2d 489. Remedial laws, however, are those affecting only the remedy provided, and include laws that merely substitute a new or mоre appropriate remedy for the enforcement of an existing right. Id. A purely remedial statute does not violate
{¶ 38} Prior to the effective date of
{¶ 39} Pratte‘s argument that the retroactive application of
{¶ 41} In accordance with the constitutional principles espoused in Grock, the retroactive application of the 12-year limitations period in
{¶ 42} In so holding, we observe that if Pratte‘s view prevailed, any statute of limitations that does not afford explicit discovery tolling provisions would violate the right-to-a-remedy provision, irrespective of whether it is applied retroactively or prospectively. Furthermore, the adoption of Pratte‘s position would discount the axiom that statutes of limitation serve a gate-keeping function for courts by “(1) ensuring fairness to the defendant, (2) encouraging prompt prosecution of causes of action, (3) suppressing stale and fraudulent claims, and (4) avoiding the inconveniences engendered by delay—specifically, the difficulties of proof present in older cases.” Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 10. Justice is not served in such cases.
{¶ 43} For the foregoing reasons, we hold that the 12-year statute of limitations in
C. Construction of R.C. 2305.111(C) and Viability of the Discovery Rule
{¶ 44} Having determined that
{¶ 45} The primary goal in construing a statute is to ascertain and give effect to the intent of the legislature. State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 11. In interpreting statutеs, this court has long held that “the intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation.” Slingluff v. Weaver (1902), 66 Ohio St. 621, 64 N.E. 574, paragraph two of the syllabus. “A court is neither to insert words that were not used by the legislature nor to delete words that were used.” Cleveland Mobile Radio Sales, Inc. v. Verizon Wireless, 113 Ohio St.3d 394, 2007-Ohio-2203, 865 N.E.2d 1275, ¶ 12.
{¶ 46}
{¶ 47} “[A]n action brought by a victim of childhood sexual abuse asserting any claim resulting from childhood sexual abuse, shall be brought within twelve yеars after the cause of action accrues. For purposes of this section, * * * a cause of action for a claim resulting from childhood sexual abuse, accrues upon the date on which the victim reaches the age of majority. If the defendant in an action brought by a victim of childhood sexual abuse asserting a claim resulting from childhood sexual abuse that occurs on or after the effective date of this act has fraudulently concealed from the plaintiff facts that form the basis of the claim, the running of the limitаtions period with regard to that claim is tolled until the time when the plaintiff discovers or in the exercise of due diligence should have discovered those facts.”
{¶ 48} We find that the language of
{¶ 49} The only exception to the accrual of the cause of action on the date the victim reaches the age of majority is when the defendant fraudulently conceals
{¶ 50} Our rationale in Doe v. Archdiocese of Cincinnati is particularly germane to the issues herein:
{¶ 51} “The remedy Doe seeks requires a legislative response to create such an exception to our long-standing statutes of limitations. The dissent of Chief Justice Moyer in Ault v. Jasko, 70 Ohio St.3d 114[120], 637 N.E.2d 870, is on point with the situation we consider today:
{¶ 52} “‘The majority opinion announces a rule of law that would permit a person at any age after any lapse of time between the alleged sexual abuse and the revived memory of such abuse to sue the alleged abuser for money damages. If that is to be the law of Ohio, it is the General Assembly that should declare it as such rather than this court. * * *
{¶ 53} “‘We simply do not have in the record in this case sufficient scientific, empirical or other information from which to craft a rule of law that will protect those accused of being abusers and those who have been abused or believe they have been abused as children. The proper forum to determine such issues is in the General Assembly where all views, all relevant information, all scientific data, and all empirical studies can be presented, reviewed and debated by those who have an interest in the issue.‘” Id., 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 51-53.
{¶ 54} Like the plaintiff‘s argument in Doe, Pratte‘s argument asks this court to step into the role of the legislature and extend the limitations period for claims of childhood sexual abuse. Our basis for rejecting Doe‘s argument has even greater weight herein, given that the legislature has now created a specific limitations period and considered tolling provisions. We are cognizant of the proposition that some victims of childhood sexual abuse may not recover their memories of the abuse prior to the expiration of the 12-year statute of limitations, and we are not without compassion for those victims. But this court would invade the province of the legislature and violate the separation of powers if it rewrote the statute to include a tolling provision for repressed memory. See Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d
{¶ 55} Pratte‘s reliance on the discovery rule adopted in Ault to extend the statute of limitations is improper. Ault was an equitable rule of law created at a time when the legislature had not enacted a limitations period for claims of childhood sexual abuse and this court had adopted a one-year limitations period for claims of childhood sexual abuse. That case is patently and materially different from the situation with which we are now faced, in which the General Assembly has responded by establishing a substantially longer limitations period of 12 years.
{¶ 56} We can reasonably infer that the General Assembly considered repressed memоry by increasing the limitations period for claims of childhood sexual abuse from one year to 12 years. It is further reasonable to infer that the legislature was reacting to Ault‘s adoption of a discovery rule for repressed memory in enacting
{¶ 57} We therefore presume that when the legislature amended
{¶ 58} For these reasons, we hold that effective August 3, 2006, the statute of limitations for a cause of action of childhood sexual abuse is governed by
Conclusion
{¶ 59} For the foregoing reasons, we hold that the 12-year statute of limitations in
{¶ 60} We further hold that pursuant to
{¶ 61} Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
PFEIFER, LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, LANZINGER, and CUPP, JJ., concur.
BROWN, C.J., not participating.
Kircher Law Office, L.L.C., and Konrad Kircher, for appellant.
Matan, Wright & Noble and Scott E. Wright, for appellee.
Gamso, Helmick & Hoolahan and Catherine G. Hoolahan, urging reversal for amici curiae, National Association to Prevent the Sexual Abuse of Children, Survivors’ Network of Those Abused by Priests, and National Center for Victims of Crime.