Roe v. Doe

• Citation: 998 A.2d 383,193 Md.App. 558
• Decision Date: 07 July 2010
• Docket Number: No. 2971,2008.,2971
• Parties: Mary ROEv.James DOE.
• Court: Court of Special Appeals of Maryland

193 Md.App. 558

998 A.2d 383

Mary ROEv.James DOE.

No. 2971, Sept. Term, 2008.

Court of Special Appeals of Maryland.

July 7, 2010.

Anton Iamele (Iamele & Iamele LLP, on the brief) Baltimore, MD, for appellant.

Timothy F. Maloney (Katherine S. Krametbuaer, Levi S. Zaslow, David M. Simpson, Joseph Greenwald & Laake PA, on the brief) Greenbelt, MD, for appellee.

Panel: EYLER, JAMES R., WOODWARD, LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.

LAWRENCE F. RODOWSKY, J., Retired, Specially Assigned.

Maryland Code (1974, 2006 Repl.Vol.), § 5-117 of the Courts and Judicial Proceedings Article (CJ) provides:

Ҥ 5-117. Actions arising from alleged sexual abuse.

“(a) ‘ Sexual abuse’ defined.-In this section, ‘sexual abuse’ has the meaning stated in § 5-701 of the Family Law Article.

“(b) Limitations period.-An action for damages arising out of an alleged incident or incidents of sexual abuse that occurred while the victim was a minor shall be filed within 7 years of the date that the victim attains the age of majority.”

Section 5-117 (the Act) was enacted by Chapter 360 of the Acts of 2003, effective October 1, 2003. Uncodified SECTION 2 of Chapter 360 provides that “this Act may not be construed to apply retroactively to revive any action that was barred by the application of the period of limitations applicable before October 1, 2003.”

In the case before us, the appellant, Mary Roe ¹ (Plaintiff), contends that her action for damages for sexual abuse was timely filed under the Act. The appellee, James Doe (Defendant) contends that the Act does not apply and that the claim is time barred under the three-year statute of limitations provided by CJ § 5-201.²

Plaintiff was born on September 29, 1983, and reached her majority on September 29, 2001. See Article 1, § 24, Maryland Code (1957, 2005 Repl.Vol.). She filed this suit on September 3, 2008, in the Circuit Court for Calvert County. She alleged facts sufficient to constitute sexual abuse, that that abuse had occurred while she was a minor, and that Defendant was the abuser. The complaint presented five counts, respectively labeled “Assault,” “Battery,” “False Imprisonment,” “Intentional Infliction of Emotional Distress,” and “Negligence.” We are concerned here with limitations only as to Counts II through V, because Plaintiff acknowledges that the one-year statute of limitations for “assault” under CJ § 5-105 had run before the Act became effective.

Defendant moved to dismiss, contending that the three-year statute of limitations had run on September 30, 2004, and that § 5-117 could not apply because such an application would be retroactive, in violation of the legislative intent expressed in uncodified SECTION 2 of Chapter 360. Further, Defendant submitted, if the General Assembly intended a retroactive application, it would unconstitutionally deprive Defendant of the vested right that he had acquired when the three-year statute of limitations ran on September 30, 2004.

The circuit court granted the motion to dismiss. The judge reasoned that § 5-117 was purely prospective, so that it “does not apply to any actions that accrued before October 1, 2003.” Alternatively, the circuit court held that, were § 5-117 to be applied retrospectively, “Defendant's due process rights would be infringed, because he has a vested right to be free from a suit where the statute of limitations has run.” The judge quoted Dua v. Comcast Cable, 370 Md. 604, 633, 805 A.2d 1061, 1078 (2002), where the Court said: “This Court has consistently held that the Maryland Constitution ordinarily precludes the Legislature ... (2) from retroactively creating a cause of action, or reviving a barred cause of action, thereby violating the vested right of the defendant.” ³

Plaintiff timely appealed. She presents two questions which we quote in the margin.⁴ We shall reframe Plaintiff's questions presented to conform to the issues discerned by the circuit court, to wit:

1. Did the General Assembly intend § 5-117 to apply to the state of facts presented in the instant matter?

2. If so, is that application constitutional?

Discussion

To assist the reader, we set forth the relevant dates in chronological order.

September 29, 2001 Plaintiff reaches majority.

October 1, 2003 Seven-year statute of limitations enacted, measured from majority.

September 30, 2004 Three-year statute of limitations, if applicable, runs on Counts II through V.

September 3, 2008 Suit filed.

September 30, 2008 Limitations under § 5-117, if applicable, would run.

I

If one were to consider only the codified portion of Chapter 360, and the effective date of October 1, 2003, there are, theoretically, at least three possible constructions as to the Act's application to causes of action that accrued prior to October 1, 2003. First, there is the null alternative i.e., that the Act has no application. This is the purely prospective construction for which Defendant contends. Second, there is the fully retroactive construction under which a cause of action that was barred as of October 1, 2003, by the three-year (or one-year) limitations period, is revived, if it is filed within seven years after the minor victim reaches majority. Plaintiff does not contend that the Act revives claims that were time barred as of October 1, 2003. Third, there is a partial retroactive construction under which the time for suit on a cause of action, that accrued prior to October 1, 2003, and that, as of that date, has not been barred by the three (or one) year period of limitations after reaching majority, is extended to seven years after the victim's reaching majority. This is the construction for which Plaintiff contends, but she bases it, not on the codified portion of Chapter 360, but on the uncodified statement of legislative intent in SECTION 2 of Chapter 360.

“As a general rule, statutes are presumed to operate prospectively and are to be constructed accordingly. The presumption against retrospectivity is rebutted only where there are clear expressions in the statute to the contrary. Moreover, even where permissible, retrospective application is not found except upon the plainest mandate in the legislation. The rationale underlying the general rule provides that retrospective application, which attempts to determine the legal significance of acts that occurred prior to the statute's effective date, increases the potential for interference with persons' substantive rights.”

Washington Suburban Sanitary Comm'n v. Riverdale Heights Volunteer Fire Co., 308 Md. 556, 560-61, 520 A.2d 1319, 1321-22 (1987) (citations omitted). That case dealt with Chapter 546 of the Acts of 1983 that created an immunity from tort. The effective date clause stated simply that it was effective July 1, 1983. The Court held that the defense did not apply to a tort committed prior to the statute's effective date.

In determining whether Chapter 360 was intended by the General Assembly to have any retroactive effect, we turn to the well established rules governing statutory interpretation.

“The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature. A court's primary goal in interpreting statutory language is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory provision under scrutiny.

“To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the language of the statute. If the language of the statute is unambiguous and clearly consistent with the statute's apparent purpose, our inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resort to other rules of construction. We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with ‘forced or subtle interpretations' that limit or extend its application.”

Lockshin v. Semsker, 412 Md. 257, 274-75, 987 A.2d 18, 28-29 (2010).

Chapter 360, introduced as Senate Bill 68, contained three sections. SECTION 1 enacted CJ § 5-117. SECTION 2, an amendment added in the course of passage, provides:

“AND BE IT FURTHER ENACTED, That this Act may not be construed to apply retroactively to revive any action that was barred by the application of the period of limitations applicable before October 1, 2003.”

SECTION 3 provides: “AND BE IT FURTHER ENACTED, That this Act shall take effect October 1, 2003.”

SECTION 2 manifests the legislative intent that Chapter 360 have some retroactive application. If Chapter 360 were intended to apply purely prospectively, then it would have sufficed to enact only SECTION 3. In that way, the ordinary rule would apply under which legislation is presumed to operate only prospectively. But, here, it cannot be concluded that Chapter 360 operates only prospectively because, to do so, would render SECTION 2 surplusage, in its entirety. That reading violates a cardinal rule of statutory construction.

SECTION 2, by its plain language, prohibits a construction of CJ § 5-117 that would effect a fully retroactive application that revived causes of action that were barred, prior to the enactment of Chapter 360, under the previously applicable law of limitations. Once again, if the Legislature intended, in addition, that CJ § 5-117 also bar causes of action on which limitations had not run, as of October 1, 2003, under the prior limitations law, then the Legislature did not say so. Further, if that were the legislative intent, it could have been accomplished simply by enacting SECTION 3 and omitting SECTION 2.

Defendant's position seems to be that the prior limitations law continues to govern claims that arose prior to October 1, 2003, and that CJ § 5-117 governs only claims that arose on or after October 1, 2003. But, that is not what SECTION 2 says. Defendant's reading would have SECTION 2 state, “That this Act may not be construed to apply...