Application of the Statute of Limitations for Child Sexual Abuse - An Amicus Brief

No. 106546


In the

Supreme Court of Illinois

_____________________

JOHN DOE A.,

Plaintiff-Appellee,

v.

DIOCESE OF DALLAS, DIOCESE OF BELLEVILLE,

ARCHDIOCESE OF ST. LOUIS, AND FR. KENNETH ROBERTS,

Defendants - Appellants.

_____________________________________________

Appeal from the Appellate Court of Illinois, Fifth District, No. 5-06-0383.

There Heard on Appeal from the Circuit Court of the Twentieth Judicial Circuit,

St. Clair County, Illinois, No. 03-L-713.

The Honorable Lloyd A. Cueto, Judge Presiding


BRIEF AMICUS CURIAE OF THE ILLINOIS TRIAL LAWYERS ASSOCIATION


Illinois Trial Lawyers Association by three of its Members:

JOSEPH G. KLEST

CHRISTOPHER T. GARDINO

1701 E. Woodfield Road, Ste. 909

Schaumburg, IL 60173

J. BRIAN MANION

Weilmuenster & Wigginton P.C.

3201 W. Main Street

Belleville, IL 62226


POINTS AND AUTHORITIES

Page

STATEMENT OF INTEREST OF AMICI CURIAE............................. 1

Phillips vs. Johnson, 231 Ill. App. 3d 890, 174 III.

Dec 458, 599 N.E. 2d 4, (1992)........................................... 1

INTRODUCTION...................................................................... 1

PUBLIC POLICY ISSUES............................................................ 2

Jama, Dec 2, 1998 volume 208, #21................................... 2

ARCH Gen psychiatry volume 29, February 2002................ 2

Illinois Code of Civil Procedure, 735 ILCS 5/13-202.2............... 2

ACE Study - Prevalence - Adverse Childhood Experiences .... 3

ACE Study - Prevalence - Adverse Childhood Experiences..... 3

Snyder, H N. (2000). Sexual assault of young children as

reported to law enforcement: Victim, incident, and

offender characteristics. National Center for Juvenile Justice,

U.S. Department of Justice.............................................. 3

Abel, G. & Harlow, N. (2001). Stop child molestation book.

Abel and Harlow. Kilpatrick, D., Saunders, B., & Smith, D.

(2003). Youth victimization: Prevalence and implications.

U.S. Department of Justice, National Institute of Justice report.

Snyder, H N. (2000). Sexual assault of young children as

reported to law enforcement: Victim, incident, and offender

characteristics. National Center for Juvenile Justice, U.S.

Department of Justice................................................ 3

Putnam, F. (2003). Ten-year research update review: Child sexual

abuse. Journal of the American Academy of Child and Adolescent Psychiatry,42,269-278............................................... 3

Snyder, H N. (2000). Sexual assault of young children as reported

to law enforcement: Victim, incident, and offender characteristics.

National Center for Juvenile Justice, U.S. Department of Justice... 3

POINTS AND AUTHORITIES (CONTINUED)

PUBLIC POLICY ISSUES Page

Simpson, C., Odor, R., & Masho, S. (2004 August). Childhood

Sexual Assault Victimization in Virginia. Center for Injury &

Violence Prevention. Virginia Department of Health. Snyder, H N.

(2000). Sexual assault of young children as reported to law

enforcement: Victim, incident, and offender characteristics.

National Center for Juvenile Justice, U.S. Department of Justice..................................................................... 4

Browne, A, & Finkelhor, D. (1986). Impact of child sexual abuse:

A review of the research. Psychological Bulletin, 99, 66-77. Day,

A., Thurlow, K., & Woolliscroft, J. (2003). Working with childhood

sexual abuse: A survey of mental health professionals. Child Abuse

& Neglect, 27 , 191-198. Voeltanz, N., Wilsnack, S., Harris, R.,

Wilsnack, R., Wonderlich, S., Kristjanson, A. (1999). Prevalence

and risk for childhood sexual abuse in women : National survey

findings. Child Abuse and Neglect, 23, 579-592...................... 4

Day, A., Thurlow, K., & Woolliscroft, J. (2003). Working with

childhood sexual abuse: A survey of mental health professionals.

Child Abuse & Neglect, 27 , 191-198. 2. Abel, G. & Harlow, N.

(2001). Stop child molestation book. Abel and Harlow. Kendler,

K., Bulik, C., Silberg, J., Hettema, J., Myers, J., & Prescott, C.

(2000). Childhood sexual abuse and adult psychiatric and

substance use disorders in women: An epidemiological and

Cotwin Control Analysis. Archives of General Psychiatry, 57,

953-959. Voeltanz, N., Wilsnack, S., Harris, R., Wilsnack, R.,

Wonderlich, S., Kristjanson, A. (1999). Prevalence and risk for

childhood sexual abuse in women : National survey findings.

Child Abuse and Neglect, 23, 579-592......................................... 4

Walrath, C., Ybarra, M., Holden, W., Liao, Q., Santiago, R.,

& Leaf, R. (2003). Children with reported histories of sexual

abuse: Utilizing multiple perspectives to understand clinical

and psychological profiles. Child Abuse & Neglect, 27, 509-524... 4

Kellogg, N.D., Hoffman, T.J, & Taylor, E.R. (1999). Early sexual

experience among pregnant and parenting adolescents. Adolescence,

43, 293-303. Noll, J.G., Trickett, P.K., & Putnam, F.W. (2003).

A prospective investigation of the impact of childhood sexual abuse

on the development of sexuality . Journal of Consulting and Clinical

Psychology, 71, 575-586. Paolucci, E.O, Genuis, M.L, & Violato,

C. (2001). A meta-analysis of the published research on the effects

POINTS AND AUTHORITIES (CONTINUED)

PUBLIC POLICY ISSUES Page

of child sexual abuse.Journal of Psychology , 135, 17-36. Saewyc,

E.M., Magee, L.L., & Pettingall, S.E. (2004). Teenage pregnancy

and associated risk behavior among sexually abused adolescents.

Perspectives on Sexual and Reproductive Health,36(3),98-105... 5

Elliott, M., Browne, K., & Kilcoyne, J. (1995). Child sexual

abuse prevention: What offenders tell us. Child Abuse & Neglect,

5, 579-594.................................................................. 5

ARGUMENT........................................................................... 6

•I. THE FIFTH DISTRICT WAS CORRECT IN DETERMINING THAT THE 2003 AMENDMENTS TO THE CHILDHOOD SEXUAL ABUSE STATUTE SHOULD BE RETOATIVELY APPLIED TO JOHN A. DOE'S CLAIM............................................................ 6

Commonwealth Edison Co. v. Will County Collector,

196 Ill.2d 27, 749 N.E.2d 964, (2001)............................. 6

Landgraf v. USI Film Products, 511 U.S. 244 (1994)............ 6

Doe A. v. Diocese of Dallas, 379 Ill.App.3d

782, 792 (2008).......................................................................... 7

Childhood Sexual Abuse Statute ("Amendments"), 735 ILCS

5/13-202.2 (2003),.................................................... 7

•A. The Illinois Legislature Intended the 2003 Amendments to the

Childhood Sexual Abuse Statute to be Retroactively Applied 7

Michigan Ave. Nat. Bank v. County of Cook, 191 Ill.2d

493, 504 (2000)...................................................... 8

Caveny v. Brower, 207 Ill.2d 82, 88 (2003).................... .. 8

Commonwealth Edison Co. v. Will County Collector,

196.Ill.2d at 37............................................................. 8

•B. Retroactive Application of the 2003 Amendments to the

Childhood Sexual Abuse Statute does not Violate Due Process............................................................ 9

Commonwealth Edison Co. v. Will County Collector, 196 Ill.2d

at 39.................................................................. 9

a. The Federal Approach - Campbell v. Holt ......... 9

Campbell v. Holt, 115 U.S. 620 (1885)..................... ... 10

POINTS AND AUTHORITIES (CONTINUED)

ARGUMENT Page

Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct.

1137, 89 L.Ed. 1628 (1945),...................................... 10

Order of Railroad Telegraphers v. Railway Express Agency,

321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944)............................................................... 10

Landgraf v. USI Film Prod., 511 U.S. 244, 114 S. Ct. 1483 (1994). ............................................................ 11

Thornton v. Mono Manufacturing Co., 99 Ill.App.3d

722, 727 (2 nd Dist. 1981) .......................................... 11

Eitel v. Lindheimer, 371 Ill. 367 (1939); ................... 12

Talandis Construction Corp. v. Illinois Building Authority,

60 Ill.App.3d 715 (1978)....................................... 12

b. The Fifth and Third Circuit are Correct in Finding that the Running of a Statute of Limitation does not Create a Constitutionally Protected Vested Right....................................................... 12

M.E.H. v. L.H., 177 Ill.2d 207, 635 N.E.2d 335, (1997)..... 12

Board of Education of Normal School District v Blodgett, 155 Ill.

441 (1895)........................................................... 12

M.K. v. L.C. and N.G., No. 03-07-0735, 2009 WL 103616, at *9

(Ill. App. 3 Dist. 2009)................................................... 13

Commonwealth Edison Co. v. Will County Collector,

196 Ill.2d 27, 749 N.E.2d 964, (2001)........................... 13

John Doe A. v. Diocese of Dallas, 379 Ill.App.3d 782, 793

(2008). ............................................................... 13

POINTS AND AUTHORITIES (CONTINUED)

ARGUMENT Page

c. The Illinois Constitution does not Allow the Legislature

to Create 'Vested Rights'........................ 13

Ill. Const. of 1870, art. II, § 14; Ill. Const. of 1970, art. I, § 16.. 13 U.S. Const. art. I, § 10, cl. 1. ...................................... 14

1870 Illinois Constitution. Cf. Ill. Const. of 1848, art. XIII, § 17

See Debates and Proceedings of the Constitutional Convention

of the State of Illinois, Convened at the City of Springfield,

Tuesday, September 13, 1869 / Ely, Burnham & Bartlett, official

stenographers. Springfield: E. L. Merritt & Brother, Printers to

the Convention, 1870, page 676 (quoting Mr. Goodhue,

Tuesday, Feb. 15, 1870)................................................ 14

•c. The Amendments to the Child Sexual Abuse Statute of

Limitations Contained in the Illinois Code of Civil

Procedure are Procedural in Nature and therefore

do not Create Vested Rights ................................14

Moomaw v. Mentor H/S, Inc., 313 Ill.App.3d 1031, 731 N.E.2d

816, 821 (Ill. App. 4 Dist. 2000).............................................15


STATEMENT OF INTEREST OF AMICUS CURIAE

The Illinois Trial Lawyers Association is a non-for profit Association whose members primarily represent individuals injured or killed by the wrongful acts of others. Members of the Illinois Trial Lawyers Association have increasingly begun to represent victims of child sexual abuse throughout the last two decades based on the expanded statute of limitations recognized in the common law first beginning with Phillips vs. Johnson, 231 Ill. App. 3d 890, 174 III. Dec 458, 599 N.E. 2d 4, (1992) and with the initial passage of 5/13-202.2 of the Illinois Code of Civil Procedure and its amendments. Members of the Illinois Trial Lawyers Association were involved in the drafting and lobbying for the 2003 amendments of 5/13-202.2 of the Code of Civil Procedure and believe very strongly that retroactive application of the 2003 amendments would greatly benefit society and protect children by exposing potential predators in our midst.

INTRODUCTION

This lawsuit arises from a claim of child sexual abuse against Kenneth Roberts who is a priest accused of sexually abusing the plaintiff. The claim includes counts against the Diocese Dallas and the Diocese of Bellville for their negligence in placing Roberts in contact with children after they were aware of his disposition to abuse children. It is important to note that at the present time in the State of Illinois there is no vicarious liability on an employer when an employee sexually abuses a child. The liability only arises from the institutional negligence of placing a child at risk after they knew or reasonably should have known that the employee was a danger to children.

PUBLIC POLICY ISSUES

The sexual abuse of children is common, underreported, under- recognized, and under-treated. Negative sequelae are highly prevalent and may contribute to evolution from young victims to older perpetrator. In Jama, Dec 2, 1998 volume 208, #21. "Individuals reporting a history of child sexual abuse had increased risk for subsequently occurring adverse outcomes of depression, suicide attempts, conduct disorder, alcohol and or nicotine dependence, social anxiety, rape after age eighteen years old, and divorce." ARCH Gen psychiatry volume 29, February 2002. As noted in the JAMA article, sexual abuse is underreported and because it is underreported it is under-prosecuted. Because it is under-prosecuted, perpetrators are not exposed and other children are placed at risk. The Illinois legislature has repeatedly expressed an interest in expanding the statute of limitations to allow civil suits against perpetrators. This intent is manifested first in the passage of the Illinois Code of Civil Procedure Section 5/13 202.2 in 1991, then with the repeal of the age 30 repose in 1993, and finally with the expanded time limitations and discovery provisions in 2003.

The following statistics on sexual abuse describe a crisis of epidemic proportions.

  • 1 in 4 girls is sexually abused before the age of 18. http://www.cdc.gov/nccdphp/ace/prevalence.htm
    ACE Study - Prevalence - Adverse Childhood Experiences
  • 1 in 6 boys is sexually abused before the age of 18. http://www.cdc.gov/nccdphp/ace/prevalence.htm
    ACE Study - Prevalence - Adverse Childhood Experiences
  • Nearly 70% of all reported sexual assaults (including assault on adults) occur to children ages 17 and under. Snyder, H N. (2000). Sexual assault of young children as reported to law enforcement: Victim, incident, and offender characteristics. National Center for Juvenile Justice, U.S. Department of Justice.
  • 30-40% of victims are abused by a family member. Abel, G. & Harlow, N. (2001). Stop child molestation book. Abel and Harlow. Kilpatrick, D., Saunders, B., & Smith, D. (2003). Youth victimization: Prevalence and implications. U.S. Department of Justice, National Institute of Justice report. Snyder, H N. (2000). Sexual assault of young children as reported to law enforcement: Victim, incident, and offender characteristics. National Center for Juvenile Justice, U.S. Department of Justice.
  • The median age for reported abuse is 9 years old. Putnam, F. (2003). Ten-year research update review: Child sexual abuse. Journal of the American Academy of Child and Adolescent Psychiatry, 42,269-278
  • More than 20% of children are sexually abused before age 8.
    Snyder, H N. (2000). Sexual assault of young children as reported to law enforcement: Victim, incident, and offender characteristics. National Center for Juvenile Justice, U.S. Department of Justice.
  • Nearly 50% of all victims of forcible sodomy, sexual assault with an object, and forcible fondling are children under age 12. Simpson, C., Odor, R., & Masho, S. (2004 August). Childhood Sexual Assault Victimization in Virginia. Center for Injury & Violence Prevention. Virginia Department of Health. Snyder, H N. (2000). Sexual assault of young children as reported to law enforcement: Victim, incident, and offender characteristics. National Center for Juvenile Justice, U.S. Department of Justice.
  • Victims of child sexual abuse report more substance abuse problems. 70-80% of sexual abuse survivors report excessive drug and alcohol use. Browne, A, & Finkelhor, D. (1986). Impact of child sexual abuse: A review of the research. Psychological Bulletin, 99, 66-77. Day, A., Thurlow, K., & Woolliscroft, J. (2003). Working with childhood sexual abuse: A survey of mental health professionals. Child Abuse & Neglect, 27 , 191-198. Voeltanz, N., Wilsnack, S., Harris, R., Wilsnack, R., Wonderlich, S., Kristjanson, A. (1999). Prevalence and risk for childhood sexual abuse in women : National survey findings. Child Abuse and Neglect, 23, 579-592.
  • Young girls who are sexually abused are 3 times more likely to develop psychiatric disorders or alcohol and drug abuse in adulthood, than girls who are not sexually abused. Day, A., Thurlow, K., & Woolliscroft, J. (2003). Working with childhood sexual abuse: A survey of mental health professionals. Child Abuse & Neglect, 27 , 191-198. 2. Abel, G. & Harlow, N. (2001). Stop child molestation book. Abel and Harlow. Kendler, K., Bulik, C., Silberg, J., Hettema, J., Myers, J., & Prescott, C. (2000). Childhood sexual abuse and adult psychiatric and substance use disorders in women: An epidemiological and Cotwin Control Analysis. Archives of General Psychiatry, 57, 953-959. Voeltanz, N., Wilsnack, S., Harris, R., Wilsnack, R., Wonderlich, S., Kristjanson, A. (1999). Prevalence and risk for childhood sexual abuse in women : National survey findings. Child Abuse and Neglect, 23, 579-592.
  • Among male survivors, more than 70% seek psychological treatment for issues such as substance abuse, suicide thoughts and attempted suicide. Males who have been sexually abused are more likely to violently victimize others. Walrath, C., Ybarra, M., Holden, W., Liao, Q., Santiago, R., & Leaf, R. (2003). Children with reported histories of sexual abuse: Utilizing multiple perspectives to understand clinical and psychological profiles. Child Abuse & Neglect, 27, 509-524.
  • Victims of child sexual abuse are more likely to be sexually promiscuous. Kellogg, N.D., Hoffman, T.J, & Taylor, E.R. (1999). Early sexual experience among pregnant and parenting adolescents. Adolescence, 43, 293-303. Noll, J.G., Trickett, P.K., & Putnam, F.W. (2003). A prospective investigation of the impact of childhood sexual abuse on the development of sexuality . Journal of Consulting and Clinical Psychology, 71, 575-586. Paolucci, E.O, Genuis, M.L, & Violato, C. (2001). A meta-analysis of the published research on the effects of child sexual abuse. Journal of Psychology , 135, 17-36. Saewyc, E.M., Magee, L.L., & Pettingall, S.E. (2004). Teenage pregnancy and associated risk behavior among sexually abused adolescents. Perspectives on Sexual and Reproductive Health, 36(3),98-105.
  • Nearly 70% of child sex offenders have between 1 and 9 victims; at least 20% have 10-40 victims. Elliott, M., Browne, K., & Kilcoyne, J. (1995). Child sexual abuse prevention: What offenders tell us. Child Abuse & Neglect, 5, 579-594

The purpose of retroactively applying the 2003 Amendments to The Illinois Code of Civil Procedure 5/13 202.2 is that it will help protect children by exposing predators. An example of this legislative success is the exposure of coach Cappelleri: a coach in the Naperville School District and owner of "CAPS" camp a baseball camp for boys in Oakbrook, Illinois. In January of 2004, Cappelleri was exposed in a civil suit by Patrick Sierzega. The lawsuit alleged Cappelleri molested Patrick Sierzega between 1981-1985 when Cappelleri was a coach at Chicago School. Upon filing the lawsuit, several other victims came forward. The Naperville School District placed Cappelleri on administrative leave and, after hearings, removed him from contact with children. This child molester would not have been exposed were it not for the filing of a civil lawsuit (Cook County Case #04 L 000757). Were it not for the retroactivity provision in the 2003 amendment this suit could not have been filed. See Naperville Sun February 1, 2004 and Herald January 23, 2004, Chicago Tribune, October 6, 2004.[1] As such, the Illinois Trial Lawyers Association submits this brief on behalf of sexual abuse victims asking that the 2003 amendments be retroactively applied in order to expose similar child molesters.

ARGUMENT

•I. The Fifth District was Correct in Determining that the 2003 Amendments to the Childhood Sexual Abuse Statute Should be Retroactively Applied to John A. Doe's Claim

The Illinois Supreme Court set forth the present rule regarding the retroactive application of a legislative amendment in Commonwealth Edison Co. v. Will County Collector, 196 Ill.2d 27, 749 N.E.2d 964, (2001). The Commonwealth Edison Court formally adopted the U.S. Supreme Court's Landgraf approach to determining retroactivity. Commonwealth, 196 Ill.2d. at 38; Landgraf v. USI Film Products, 511 U.S. 244 (1994). This Court's assumption of Landgraf's "legislative intent" approach to determining retroactivity represented a rejection of the "vested rights" approach to retroactivity which automatically found that retroactive changes to statutes of limitations and repose violated due process. Doe A. v. Diocese of Dallas, 379 Ill.App.3d 782, 792 (2008).

Under the Landgraf, approach as adopted by the Commonwealth Court, the temporal reach of an amended statute is determined by looking first to legislative intent. Commonwealth, 196.Ill.2d at 38. The Commonwealth court articulated this approach finding that where the legislature has expressly proscribed the temporal reach of a statute, that expression of legislative intent governs absent a constitutional prohibition. Commonwealth, 196.Ill.2d at 38. Determining whether the 2003 Amendments to the Childhood Sexual Abuse Statute ("Amendments"), 735 ILCS 5/13-202.2 (2003), are to be applied retroactively therefore requires a two part analysis: Did the legislature intend for the Amendments to be retroactively applied, and, if so, does retroactive application violate any constitutional right.

•A. The Illinois Legislature Intended the 2003 Amendments to the Childhood Sexual Abuse Statute to be Retroactively Applied

The legislative intent of 2003 Amendments to the Childhood Sexual Abuse Statute is clear on the face of the statute. Subsection (e) of the 2003 Amendments provides:

"The changes made by the amendatory Act of the 93rd General Assembly apply to actions pending on the effective date of this amendatory Act of the 93rd General Assembly as well as actions commenced on or after that date (emphasis added)." 735 ILCS 5/13-202.2(e) (2003).

The most reliable indication of legislative intent is found in the plain and ordinary meaning of the statutory language. Michigan Ave. Nat. Bank v. County of Cook, 191 Ill.2d 493, 504 (2000). Where statutory language is clear and unambiguous, a reviewing court should not resort to further aids of statutory construction. Id.; Caveny v. Brower, 207 Ill.2d 82, 88 (2003). Furthermore, the Commonwealth Court recognized that where the legislature has made a clear indication of the temporal reach of a statute, there is no reason to resort to judicial default rules of statutory interpretation. Commonwealth, 196.Ill.2d at 37.

The unambiguous language of Subsection(e) applies the 2003 Amendments both to all actions pending on the effective date and all actions commenced on or after that date. By its plain meaning the statute applies to actions that are undertaken after its enactment. Had the legislature intended to limit the reach of the 2003 Amendments to claims occurring after the 2003 Amendments were enacted, they would have limited the Amendments to those actions accruing on or after the effective date. By the plain language of the statute itself, the legislature intended for the Amendments to apply to claims commenced on or after the effective date such as that of John Doe A.

•B. Retroactive Application of the 2003 Amendments to the Childhood Sexual Abuse Statute does not Violate Due Process

As the Illinois Legislature unambiguously demonstrated its intent to retroactively apply the Amendments through the plain meaning of the statute, the only remaining question is whether retroactive application violates the Defendants' due process rights. Much of the debate surrounding this question centers on whether the running of the statute of limitations creates a constitutionally protected 'vested right'. The Commonwealth Court rejected the vested rights approach in favor of a due process balancing test. Commonwealth, 196 Ill.2d at 39. This Court's adoption of the Landgraf balancing test properly encompasses both federal and state jurisprudence recognizing the fact that the running of a statute of limitations does not create a vested right in the defendant.

•a. The Federal Approach - Campbell v. Holt

In Campbell v. Holt, 115 U.S. 620 (1885), the United States Supreme Court long ago held that the repeal of a statute of limitations by the State of Texas did not deny the defendant of "property" in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution:

"It was a valid contract, implied by the law before the statute began to run in 1866. Its nature and character were not changed by the lapse of two years, though the statute made that a valid defense to a suit on it. But this defense, a purely arbitrary creation of the law, fell with the repeal of the law on which it depended (emphasis added)

***

We are unable to see how a man can be said to have property in the bar of statute as a defense to his promise to pay. In the most liberal extension of the use of the word 'property' to chooses in action, to incorporeal rights, it is new to call the defense of lapse of time to the obligation to pay money, property. It is no natural right. It is the creation of conventional law. We can understand a right to enforce the payment of a lawful debt. The constitution says that no state shall pass any law impairing this obligation. But we do not understand the right to satisfy that obligation by a protracted failure to pay. We can see no right which the promisor has in the law which permits him to plead lapse of time instead of payment, which shall prevent the legislature from repealing that law because its effect is to make him fulfill his honest obligations." Campbell 115 U.S. at 628-29.

Further, in Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945), the United Supreme Court examined Campbell and unanimously found that it was sound and should not be overruled. The court noted:

"Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles....Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a 'fundamental' right or what used to be called a 'natural' right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.

***

The essential holding in Campbell v. Holt, so far as it applies to this case, is sound and should not be overruled. The Fourteenth Amendment does not make an act of state legislation void merely because it has some retrospective operation. What it does forbid is taking of life, liberty or property without due process of law. Some rules of law probably could not be changed retroactively without hardship and oppression, and this whether wise or unwise in their origin. Assuming that statutes of limitation like other types of legislation could be so manipulated that their retroactive effects would offend the Constitution, certainly it cannot be said that lifting the bar of a statute of limitation so as to restore a remedy lost through mere lapse of time is per se an offense against the Fourteenth Amendment." Chase Securities Corp., 325 U.S. at 314-316 (emphasis added).

Simply put, Campbell and Chase Securities Corp . are the predecessors to Landgraf v. USI Film Prod., 511 U.S. 244, 114 S. Ct. 1483 (1994). They espouse the same principles that the legislative intent must control and there is no irrevocable constitutional right to a defense based merely on the lapse of time. Campbell and Chase Securities Corp . are also consistent with Illinois cases which have held that a "vested right is something more than a mere expectation based upon an anticipated continuance of an existing law". Thornton v. Mono Manufacturing Co., 99 Ill.App.3d 722, 727 (2 nd Dist. 1981) (citing People ex rel. Eitel v. Lindheimer, 371 Ill. 367 (1939); Talandis Construction Corp. v. Illinois Building Authority, 60 Ill.App.3d 715 (1978).

•b. The Fifth and Third Circuit are Correct in Finding that the Running of a Statute of Limitation does not Create a Constitutionally Protected Vested Right

In M.E.H. v. L.H . this Court found that the running of the then existing statute of repose barred a sexual abuse tort claim filed after the statute of repose had been repealed. M.E.H. v. L.H., 177 Ill.2d 207, 635 N.E.2d 335, (1997). The M.E.H . Court based its opinion on the then applicable vested rights approach to retroactivity. M.E.H.177 Ill.2d at 214-215. The M.E.H. Court determined that once a statute of repose had expired, the defendant had a vested right to invoke that bar as a defense to litigation. Id. citing Board of Education of Normal School District v Blodgett, 155 Ill. 441 (1895). However, the M.E.H . decision was rendered before the Illinois Supreme Court's adopted the Landgraf test through its Commonwealth Edison decision.

Interestingly the MEH court seemed to give the defendants "vested right" to bar the claim more weight than the Plaintiffs "vested right" to her right of action. The Third District aptly recognized this Court's shifting standards in M.K. v. L.C. and N.G. finding:

"The sole basis for the Supreme Court's holding in M.E.H. was the existence of what was then a vested right. Our Supreme Court has flatly rejected the 'vested rights' approach and clearly established an alternate mode of inquiry for determining the retroactive impact of a legislative change that this court must employ on a case-by-case basis. Given the Supreme Court's rejection of the vested rights approach we must find that M.E.H. no longer controls the instant appeal" M.K. v. L.C. and N.G., No. 03-07-0735, 2009 WL 103616, at *9 (Ill. App. 3 Dist. 2009).

The rule proffered by the Commonwealth Court requires a reviewing court to determine whether retroactive application of a statutory amendment unreasonably infringes due process on a case-by-case basis. Commonwealth, 196 Ill.2d at 43. Among the factors relevant to this balancing determination are the legislative purpose of the amendment, the length of the period of retroactivity, and whether an individual or entity detrimentally relied on the prior law. Id . This same balancing approach was undertaken by the Fifth District in the case at hand. John Doe A. v. Diocese of Dallas, 379 Ill.App.3d 782, 793 (2008). The Fifth District correctly determined that both the legislative purpose (a desire to fix problems inherent in the previous statute) and the absence of detrimental reliance by the Defendants' tipped the scales in favor of retroactive application. Doe A., 379 Ill.App.3d at 793. Both the Fifth and Third District courts properly recognized and applied this Court's Commonwealth decision to retroactive application.

•c. The Illinois Constitution does not Allow the Legislature to Create 'Vested Rights'

The Illinois Constitution provides that, "No ex post facto law, or law impairing the obligation of contracts, or making any irrevocable grant of special privileges or immunities, shall be passed." Ill. Const. of 1870, art. II, § 14; Ill. Const. of 1970, art. I, § 16 (emphasis added). This section is more restrictive than the Federal counterpart which provides, "No State shall... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility." U.S. Const. art. I, § 10, cl. 1.

The language prohibiting, "making any irrevocable grant of special privileges or immunities" was first added to the 1870 Illinois Constitution. Cf. Ill. Const. of 1848, art. XIII, § 17 ("No ex post facto law, nor any law impairing the obligation of contracts, shall ever be made; and no conviction shall work corruption of blood, or forfeiture of estate."). This language was added to the Illinois Constitution of 1870 as a direct response of disapproval of the legislature's granting of certain privileges and immunities, which were deemed "vested rights" beyond its power to repeal. See Debates and Proceedings of the Constitutional Convention of the State of Illinois, Convened at the City of Springfield, Tuesday, September 13, 1869 / Ely, Burnham & Bartlett, official stenographers. Springfield: E. L. Merritt & Brother, Printers to the Convention, 1870, page 676 (quoting Mr. Goodhue, Tuesday, Feb. 15, 1870).

•d. The Amendments to the Child Sexual Abuse Statute of Limitations Contained in the Illinois Code of Civil Procedure are Procedural in Nature and therefore do not Create Vested Rights

At the outset it must be noted that limitations provisions of the Amendments are contained within the Illinois Code of Civil Procedure, 735 ILCS 5/13-202.2. The fact that the legislature incorporated the Amendments into the procedural code is evidence that they are to be treated as procedural provisions. In resolving procedural/substantive dichotomy for conflicts purposes the Fourth District Court said:

"Erie v. Tompkins principles teach that Illinois law provides the substantive rules of decision in this diversity action, but that does not extend to Illinois procedural rules. Thus 735 ILCS 5/2-402 which is expressly made part of the Illinois Code of Civil Procedure simply does not operate as a basis for joinder...of parties." Moomaw v. Mentor H/S, Inc., 313 Ill.App.3d 1031, 731 N.E.2d 816, 821 (Ill. App. 4 Dist. 2000)

The Illinois Supreme Court recognized the fact that limitation statutes are procedural in nature and do not create vested rights in Orlicki v. McCarthy, 122 N.E.2d 513, 4 Ill.2d. 342, (1954). The Orlicki Court allowed the retroactive application of a statute of limitation provision related to civil dram shop suits. Orlicki, 112 N.E.2d at 519. More specifically, the Orlicki Court retroactively applied an amendment to the statute of limitations in dram shop actions shortening the filing deadline from five years to two years in order to defeat an injury claim. Orlicki, 112 N.E.2d at 514. In so doing the Orlicki Court detailed a history of Illinois cases finding both that limitations statutes are procedural and that procedural statutes are to be retroactively applied where the legislature so intends. Orlicki 112 N.E.2d at 515-519. As the court stated:

"...Even if the intention of the legislature were not ascertainable, the 1949 amendment to the Liquor Control Act, imposing a time limitation on the right of action conferred in that act, should be retroactively applied on the basis of the substantial precedent holding such time limitation amendments to be procedural in character." (emphasis added) Orlicki 112 N.E.2d at 518.

A statute that is substantive creates rights, duties or obligations whereas a procedural statute proscribes the method of enforcement of rights. As such, a vested right cannot be created by a statute that is procedural in nature. The Amendments to the Childhood Sexual Abuse Statute are procedural both in their inclusion in the Illinois Code of Civil Procedure and in the fact that they consist of legislatively created limitation periods. The Amendments merely provide a legislatively created means for enforcing a remedy - they do not create a right. The statute should therefore be retroactively applied as intended by the legislature to allow for John Doe A.'s claim.

The Federal Courts have historically given more weight to the ability of a plaintiff to enforce a right than to a defendant's interest in the expiration of that enforcement. The M.E.H . decision was illustrative of the contrary approach of Illinois in this regard as that Court recognized the existence of a defendant's vested right in the running of a limitations period but failed to give the same weight to plaintiff's right in bringing suit. However, this Court's adoption of the U.S. Supreme Court's Landgraf test through its Commonwealth decision is a harbinger for a statewide recognition of the correct approach to statutory retroactive application. Both the Fifth and Third Circuits have properly determined that the 2003 Amendments to the Childhood Sexual Abuse Statute are to be retroactively applied as intended by the Illinois Legislature. Now the Illinois Supreme Court has the opportunity to follow its own precedent in Commonwealth and retroactively apply the 2003 Amendments as intended by the legislature to enforce the rights of sexual abuse victims.

CONCLUSION

The sexual abuse of children is an epidemic that has largely gone grossly under reported and under prosecuted. This tragic situation has just recently begun to change. With the application of the discovery rule to child sexual abuse, lawsuits are being filed giving the press the comfort level it needs to report. As a result we have learned more about the extent of the epidemic and the ways that sexual abuse occurs. This knowledge will help us inform and protect our children from abuse. A review of the statistics on child sexual abuse reveals that there are many child molesters among us who have not been exposed. Allowing the 2003 amendments to be applied retroactively will empower victims of past abuse to expose predators which will help protect other children from being abused. If the 2003 Amendments are not applied retroactively, these child molesters will never be exposed.

WHEREFORE, Amicus respectfully request this Court affirm the decision of the Illinois Appellate Court, Fifth District.

Respectfully Submitted,

________________________________

JOSEPH G. KLEST

JOSEPH G. KLEST

1701 E. Woodfield Road, Ste. 909

Schaumburg, IL 60173

847-380-3309

Attorney No. 50239

CHRISTOPHER T. GARDINO

Klest Law Firm

1701 E. Woodfield Road, Ste. 909

Schaumburg, IL 60173

J. BRIAN MANION

Weilmuenster & Wigginton, P.C.

3201 W. Main Street

Belleville, IL 6226

Supreme Court Rule 341 (c) Certification of Compliance

Pursuant to Supreme Court Rule 341 (c), I certify that this brief conforms to the requirements of Rule 341 (a) and (b). The length of this brief, excluding the pages containing the Rule 341(d) cover, the Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service, and those matters to be appended to the brief under Rule 342(a), is ____ pages.

Respectfully Submitted,

______________________

JOSEPH G. KLEST


[1] This author represented Patrick Sierzega and several other victims of Cappelleri who came to my office in August 2003, shortly after the 2003 amendments became law. Had the 2003 Amendments not had a retroactivity clause, these lawsuits would not have been filed and coach Cappelleri would likely still be in contact with children in the Naperville School District and operating "CAPS Baseball Camp" in Oakbrook, Illinois.

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