Fifth affirms Kardis' dismissal of priest sexual abuse case

Steve Gonzalez Aug. 22, 2006, 7:38am

Stephen Spomer

The Fifth District Appellate Court affirmed former Madison County Circuit Judge Phillip Kardis' dismissal of a sexual assault complaint against the Catholic Diocese of Springfield, the Diocese of Belleville and two priests, Herman Niebrugge and Theodore Baumann.

The appellate court ruled on the basis that the case brought by Virginia Galloway in January 2004 was barred by the statute of repose governing personal injury child sexual abuse cases.

Galloway claimed that a third priest, Richard Niebrugge, had sexually abused her from the time she was 10-years-old in 1967 until his death in 1983.

The priests named as defendants in her suit became aware of the abuse while she was a minor and that they aided and abetted Niebrugge by failing to report it and helping him to cover it up, Galloway claimed.

Kardis dismissed her complaint on the basis that it was barred by the statute of repose governing personal injury cases based on child sexual abuse.

That statute was in effect from Jan. 1, 1991, until it was repealed effective Jan. 1, 1994.

Authoring the 2-1 decision for the court, Justice Spomer wriote, "Prior to 1991, lawsuits seeking damages for childhood sexual abuse were subject to the same statute of limitations applicable to personal injury actions."

"In September 1990, the Illinois legislature amended the Limitations Act to provide a statute of limitations specific to claims of childhood sexual abuse," Spomer added.

The 1990 amendment, which became effective on Jan. 1, 1991, included a statute of repose providing, "[I]n no event may an action for personal injury based on childhood sexual abuse be commenced more than 12 years after the date on which the person abused attains the age of 18 years."

"In effect, then, the statute of repose barred claims for childhood sexual abuse by anyone 30 years or older," Spomer wrote.

In 1993, the legislature again amended the relevant provision of the Limitations, which eliminated the statute of repose.

"The plaintiff relies on this language to argue that the amendment should apply retroactively," Spomer wrote.

"However, the Illinois Supreme Court has rejected this argument and unequivocally ruled, in relation to the very statute of repose at issue, that the right to invoke the statute of repose as a defense to a cause of action cannot be taken away without offending the due process clause of the Illinois Constitution."

Spomer continued, "The plaintiff turned 18 on September 25, 1975, and turned 30 on September 25, 1987. Thus, her claim was barred by the statute of repose when it went into effect on January 1, 1991."

"Accordingly, the statute of repose extinguished the plaintiff's cause of action, and the defendants have a vested right under the due process clause of the Illinois Constitution to invoke the statutory repose period, even after the repose period was abolished by the legislature."

"Because the plaintiff's claim was time-barred when the 12-year repose period took effect, it remains time-barred even after the repose period was abolished by the legislature," Spomer wrote.

Justice James Donovan concurred with Spomer while Justice Melissa Chapman dissented. She wrote, "I first would consider whether the legislature intended the 1993 amendment to apply retroactively."

"I would next consider whether the retroactive application of the amendment would violate due process, Chapman wrote.

"Applying these considerations to the instant case, we note that here the legislature deleted the statute of repose after it had been in effect for only three years."

"All three amendments to the statute evince an increasing legislative recognition that often the victims of childhood sexual abuse develop coping mechanisms that hinder the realization that their psychological injuries might be resultant of abuse that occurred decades earlier. Our courts acknowledge that childhood sexual abuse victims often suffer from repressed memory."

"Here, the plaintiff alleges that a multiple personality disorder hindered her discovery. Amendments to the statute that make it easier to file a claim even many years after the alleged abuse occurs reflect the legislative intent to make the procedural limits on claims of this sort better suit the nature of the claim. That desire to fix the problems inherent in a previous version of a statute weighs in favor of retroactive application."

"Most significantly, I find that the defendants cannot claim to have detrimentally relied on the statute of repose. The events at issue occurred decades before the statute of repose was enacted. The defendants argue that they will be prejudiced by having to defend a lawsuit involving the actions of an alleged abuser who has been deceased for more than 20 years."

"While this is undeniably true, it would be equally true if the plaintiff were born in 1964, in which case she would have turned 30 after the statute of repose was deleted and her claim never would have been barred. In other words, the difficulties inherent in defending an action such as the plaintiff's do not stem from a retroactive application of the statute itself."

"The difficulties flow, rather, from the legislature's judgment that placing this burden on defendants is an acceptable price to pay for tailoring procedural limitations to provide victims of childhood sexual abuse a reasonable opportunity to seek redress for the horrific harm that they have endured."

" It is also worth noting that our courts have found that the 1990 legislation that added the statute of repose applied retroactively. M.E.H., 177 Ill. 2d at 216-17, 685 N.E.2d at 340; Phillips v. Johnson, 231 Ill. App. 3d 890, 894-95, 599 N.E.2d 4, 7-8 (1992).

"The retroactive application of the statute of repose interferes with the plaintiff's interest in pursuing a cause of action against the defendants, just as a retroactive application of the legislation removing the statute of repose interferes with the defendants' interest in an absolute defense. It does not seem logical to apply different standards to retroactivity in the case of each of these related statutory changes. On the whole, I find that the retroactive application of the 1993 amendments does not violate due process. For the foregoing reasons, I respectfully dissent."

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