REIBER, C.J. Plaintiff1 sued defendants alleging childhood sexual abuse, and defendants moved to dismiss on the ground that the statute, which eliminated the prior limitations period, was unconstitutional. The civil division denied the motion to dismiss, and defendants now bring this interlocutory appeal to determine whether 12 V.S.A. § 522 violates Chapter I, Article 4 of the Vermont Constitution by reviving an otherwise time-barred claim of childhood sexual abuse. We conclude that there is no constitutional violation and affirm.
Article 4 states: “Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character . . . ” Vt. Const. ch. I, art. 4.
This Court has treated Article 4 as the Vermont equivalent of the federal Due Process Clause. Quesnel v. Town of Middlebury, 167 Vt. 252, 258, 706 A.2d 436, 439 (1997). “The Vermont Constitution may provide greater protection than analogous provisions in the U.S. Constitution, but the proponent of such an argument “bears the burden of explaining how or why the Vermont Constitution provides greater protection.” State v. Read, 165 Vt. 141, 153, 680 A.2d 944, 951 (1996). See State v. Jewett, 146 Vt. 221, 225-27, 500 A.2d 233, 236-37 (1985) (providing examples of arguments that advocates may use to meet burden of demonstrating that Vermont Constitution provides greater protection than U.S. Constitution)
In 2019, the Legislature amended § 522 to remove the limitations period and allow claims of childhood sexual abuse to be commenced “at any time after the act alleged to have caused the injury or condition.” 2019, No. 37, § 1. The amendment contained a retroactivity provision that “Notwithstanding 1 V.S.A. § 214, this section shall apply retroactively to childhood sexual abuse that occurred prior to the effective date of this act, irrespective of any statute of limitations in effect at the time the abuse occurred.”
Although federal jurisprudence is not controlling in this case involving the Vermont Constitution, it is helpful to understand how the analogous federal provision has been interpreted given that our cases have generally viewed Article 4 as equivalent to the federal Due Process Clause.
The U.S. Supreme Court has long held that in the civil context an expired limitations period as a defense to an action does not create a vested right and therefore a legislature does not violate the U.S. Constitution by altering an existing limitations period and making it apply retroactively. Based on that precedent, the U.S. District Court for the District of Vermont rejected a claim that the 1990 retroactivity provision of 12 V.S.A. § 522 violated the U.S. Constitution. See Barquin v. Roman Cath. Diocese of Burlington, Vermont, Inc., 839 F. Supp. 275, 281 (D. Vt. 1993) (rejecting constitutional due process defense based on Supreme Court precedent that legislatures retain power to revive actions that were previously barred by limitations period)
To be clear, the federal precedent is not binding on our analysis of the Vermont Constitution. However, we conclude that the reasoning of the federal decisions regarding federal due process is logical, persuasive, and consistent with this Court’s past cases involving Article 4. We conclude that defendants do not have a property interest or other right that is protected by Article 4 and therefore that they have suffered no deprivation of due process.
Like the U.S. Supreme Court, this Court has described limitations periods in statutes as creating a remedy and not a substantive right. See Carter v. Fred’s Plumbing & Heating Inc., 174 Vt. 572, 575, 816 A.2d 490, 494 (2002) (mem.) (rejecting plaintiff’s claim that change extending a statutory limitations period applied retroactively and describing statute as limiting “the availability of a remedy,” rather than interfering with a vested right).
There is persuasive analysis from several other states holding that state legislatures may retroactively revive previously barred civil claims without violating state constitutional provisions ensuring due process. These states, like Vermont, view limitations periods as relating to remedies rather than rights.
The holding of Bates v. Kimball, 2 D. Chip. 77 (Vt. 1824), cited by defendants, is inapplicable. Defendants have not obtained a judgment, and the legislative act challenged here is not aimed at invalidating an existing adjudicated right between the parties.
Not only is there no precedent in Vermont for the outcome defendants seek, defendants have also not provided any historical analysis or textual argument. See Ferry v. City of Montpelier, 2023 VT 4, ¶ 29 (explaining that Vermont Constitution first adopted in 1777 when Vermont was independent republic and new constitution was adopted in 1793 after Vermont joined United States as fourteenth state in 1791)
Defendants’ arguments about their inability to litigate against these particular claims given the passage of time is not relevant to the limited question presented to this Court—whether § 522’s retroactivity provision violates Article 4 of the Vermont Constitution because it deprives defendants of a vested right. Defendants claimed that they had a vested right in the expired limitations period. We have rejected that premise and hold that defendants have no vested property interest in the expired limitations period.
Article 4 states: “Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character . . . ” Vt. Const. ch. I, art. 4.
This Court has treated Article 4 as the Vermont equivalent of the federal Due Process Clause. Quesnel v. Town of Middlebury, 167 Vt. 252, 258, 706 A.2d 436, 439 (1997). “The Vermont Constitution may provide greater protection than analogous provisions in the U.S. Constitution, but the proponent of such an argument “bears the burden of explaining how or why the Vermont Constitution provides greater protection.” State v. Read, 165 Vt. 141, 153, 680 A.2d 944, 951 (1996). See State v. Jewett, 146 Vt. 221, 225-27, 500 A.2d 233, 236-37 (1985) (providing examples of arguments that advocates may use to meet burden of demonstrating that Vermont Constitution provides greater protection than U.S. Constitution)
In 2019, the Legislature amended § 522 to remove the limitations period and allow claims of childhood sexual abuse to be commenced “at any time after the act alleged to have caused the injury or condition.” 2019, No. 37, § 1. The amendment contained a retroactivity provision that “Notwithstanding 1 V.S.A. § 214, this section shall apply retroactively to childhood sexual abuse that occurred prior to the effective date of this act, irrespective of any statute of limitations in effect at the time the abuse occurred.”
Although federal jurisprudence is not controlling in this case involving the Vermont Constitution, it is helpful to understand how the analogous federal provision has been interpreted given that our cases have generally viewed Article 4 as equivalent to the federal Due Process Clause.
The U.S. Supreme Court has long held that in the civil context an expired limitations period as a defense to an action does not create a vested right and therefore a legislature does not violate the U.S. Constitution by altering an existing limitations period and making it apply retroactively. Based on that precedent, the U.S. District Court for the District of Vermont rejected a claim that the 1990 retroactivity provision of 12 V.S.A. § 522 violated the U.S. Constitution. See Barquin v. Roman Cath. Diocese of Burlington, Vermont, Inc., 839 F. Supp. 275, 281 (D. Vt. 1993) (rejecting constitutional due process defense based on Supreme Court precedent that legislatures retain power to revive actions that were previously barred by limitations period)
To be clear, the federal precedent is not binding on our analysis of the Vermont Constitution. However, we conclude that the reasoning of the federal decisions regarding federal due process is logical, persuasive, and consistent with this Court’s past cases involving Article 4. We conclude that defendants do not have a property interest or other right that is protected by Article 4 and therefore that they have suffered no deprivation of due process.
Like the U.S. Supreme Court, this Court has described limitations periods in statutes as creating a remedy and not a substantive right. See Carter v. Fred’s Plumbing & Heating Inc., 174 Vt. 572, 575, 816 A.2d 490, 494 (2002) (mem.) (rejecting plaintiff’s claim that change extending a statutory limitations period applied retroactively and describing statute as limiting “the availability of a remedy,” rather than interfering with a vested right).
There is persuasive analysis from several other states holding that state legislatures may retroactively revive previously barred civil claims without violating state constitutional provisions ensuring due process. These states, like Vermont, view limitations periods as relating to remedies rather than rights.
The holding of Bates v. Kimball, 2 D. Chip. 77 (Vt. 1824), cited by defendants, is inapplicable. Defendants have not obtained a judgment, and the legislative act challenged here is not aimed at invalidating an existing adjudicated right between the parties.
Not only is there no precedent in Vermont for the outcome defendants seek, defendants have also not provided any historical analysis or textual argument. See Ferry v. City of Montpelier, 2023 VT 4, ¶ 29 (explaining that Vermont Constitution first adopted in 1777 when Vermont was independent republic and new constitution was adopted in 1793 after Vermont joined United States as fourteenth state in 1791)
Defendants’ arguments about their inability to litigate against these particular claims given the passage of time is not relevant to the limited question presented to this Court—whether § 522’s retroactivity provision violates Article 4 of the Vermont Constitution because it deprives defendants of a vested right. Defendants claimed that they had a vested right in the expired limitations period. We have rejected that premise and hold that defendants have no vested property interest in the expired limitations period.
Affirmed.
SCOVT NOTE. A.B. v. S.U., 2023 VT 34 addresses whether the running of a statute of limitations creates a “vested right” that cannot under Article 4 be “revived” by subsequent legislation. The Court says “no.”
In this case the old statute had run, and suit not brought until after adoption of the new statute lengthening the time limit. The new statute is expressly made applicable “retroactively to childhood sexual abuse that occurred prior to the effective date of this act, irrespective of any statute of limitations in effect at the time the abuse occurred.”
Article 4 does not prohibit this, the Court says, because the federal due process clause does not prohibit it and defendant did not provide any precedent, textual or historical analysis of Article 4 to show it has a different interpretation. Defendants had not obtained a judgment under the old statute, and the legislative act thus does not invalidate a vested existing adjudicated right between the parties.
If A.B. v. S.U..is to be remembered, it should be remembered for two things.
First, for its citation to State v. Jewett, 146 Vt. 221, 225-27 (1985) and its reminder that Vermont lawyers should do the work necessary to flesh out any uniquely Vermont meaning of our own Constitution. See also Gladchun v. Eramo, 2023 VT 5 (relying on Vermont's unique character and history to interpret a deed.)
Second, for its citation to Bates v. Kimball, which all Vermont lawyers should remember and cite as Vermont’s’ seminal case establishing and exercising the power of judicial review – to declare what the law is and to invalidate an unconstitutional statute:
Bates v. Kimball, 1824 WL 1336, at *5 (Vt. Feb. 1, 1824)
But 1 V.S.A. § 214(b) has now changed the presumption. In Capron v. Romeyn, 137 Vt. 553, 555, (1979) and Stewart v. Darrow, 141 Vt. 248, 253, (1982) , the Court held an amendment lengthening a statute of limitations did not revive a cause of action that had already been barred prior to its amendment. The holdings are a matter of statutory construction, not Article 4, and leave open the question addressed in A.B. v. S.U. (and already decided in Keyes) whether the Constitution permits lengthening of a period of limitations after the statute had run.
Recent caselaw says Article 4 prohibits shortening a statute of limitations without allowing a reasonable time time in which to file an action that arose and remained viable under a prior statute. Lillicrap v. Martin, 156 Vt. 165 (1991)
Also Article 4 does not require a repeal of a statute of limitations to be applied retroactively, contrary to legislative intent. Carter v. Fred's Plumbing & Heating Inc., 174 Vt. 572 (2002) (“[W]hile the Legislature may create reasonable limitations on rights of action, due process does not permit the legislature to annul vested rights. The Legislature never interfered with a vested right of the plaintiff; rather, it limited the availability of a remedy. In the absence of a vested cause of action, there is no constitutional deprivation or right to redress.”) (Internal quotation marks and citation omitted)
The defendants in A.B. v. S.U. cited Carter, for its discussion of “vested rights” but evidently did not address recent case law that suggests there is a “vested right” in the running a statute of limitations that cannot be affected by later legislation lengthening the period.
Murray v. Luzenac Corp., 2003 VT 37, ¶¶ 7-9 held an amendment lengthening the statute of limitations could be applied to injuries occurring prior to the amendment, but used language suggesting this was so on the only facts of the case where the period of limitation had not run at the time of the amendment. Indeed, the Court has cited Murray as “holding that no rights vest in a statute of repose until the time period has lapsed.” Sanz v. Douglas Collins Const., 2006 VT 102, ¶ 9, 180 Vt. 619, 621, 910 A.2d 914, 917 (2006),
In the end it appears that exploring whether a right is constitutionally “vested” or not; or whether a statute affects the “remedy” as opposed to the “right” does not advance a solution to the problem. These are labels that can be used only to catalog the result, not explain it.
Without discussing Murray or Sanz and without citing -- but consistent with -- the 1842 holding in Keyes, the A.B. v. S.U. Court concluded that the Constitution does not prohibit lengthening a statute of limitations retroactively after the original statute has expired. This result was compelled by the assumption that Article 4 is coincident with federal procedural due process and by the failure of defendants to cite any relevant Vermont precedent, constitutional text or history.
The constitution of this State, Ch. 2, sec. 9, after defining the powers of the General Assembly, proceeds as follows: -“But they shall have no power to add to, alter, abolish, or infringe, any part of this constitution.” . . .
This constitution is the fundamental law of the State. The Legislature have not power to vary its provisions; . . . The interpretation of the laws is the proper and peculiar province of the Courts. It must therefore belong to them to ascertain the meaning of the constitution, as well as the meaning of any particular act proceeding from the Legislative body. It is our duty, therefore, as well as our prerogative, to declare that alone to be the law, which is reconcilable with this fundamental law-this fiat of the sovereign people.
Bates v. Kimball, 1824 WL 1336, at *5 (Vt. Feb. 1, 1824)
***
19th Century Vermont precedent is clear that the Vermont Constitution permits lengthening a statute of limitations retroactively, after the original statute has expired. Lowry v. Keyes, 14 Vt. 66 (1842 ) (statutes of limitation govern the remedy, not the right: “ the legislature may repeal or amend them at pleasure.”) Indeed, a statute of limitations was historically presumed to apply retrospectively “unless limited by its terms to prospective application.” Cardell v. Carpenter, 42 VT. 234, 236 (1869) But 1 V.S.A. § 214(b) has now changed the presumption. In Capron v. Romeyn, 137 Vt. 553, 555, (1979) and Stewart v. Darrow, 141 Vt. 248, 253, (1982) , the Court held an amendment lengthening a statute of limitations did not revive a cause of action that had already been barred prior to its amendment. The holdings are a matter of statutory construction, not Article 4, and leave open the question addressed in A.B. v. S.U. (and already decided in Keyes) whether the Constitution permits lengthening of a period of limitations after the statute had run.
Recent caselaw says Article 4 prohibits shortening a statute of limitations without allowing a reasonable time time in which to file an action that arose and remained viable under a prior statute. Lillicrap v. Martin, 156 Vt. 165 (1991)
Also Article 4 does not require a repeal of a statute of limitations to be applied retroactively, contrary to legislative intent. Carter v. Fred's Plumbing & Heating Inc., 174 Vt. 572 (2002) (“[W]hile the Legislature may create reasonable limitations on rights of action, due process does not permit the legislature to annul vested rights. The Legislature never interfered with a vested right of the plaintiff; rather, it limited the availability of a remedy. In the absence of a vested cause of action, there is no constitutional deprivation or right to redress.”) (Internal quotation marks and citation omitted)
The defendants in A.B. v. S.U. cited Carter, for its discussion of “vested rights” but evidently did not address recent case law that suggests there is a “vested right” in the running a statute of limitations that cannot be affected by later legislation lengthening the period.
Murray v. Luzenac Corp., 2003 VT 37, ¶¶ 7-9 held an amendment lengthening the statute of limitations could be applied to injuries occurring prior to the amendment, but used language suggesting this was so on the only facts of the case where the period of limitation had not run at the time of the amendment. Indeed, the Court has cited Murray as “holding that no rights vest in a statute of repose until the time period has lapsed.” Sanz v. Douglas Collins Const., 2006 VT 102, ¶ 9, 180 Vt. 619, 621, 910 A.2d 914, 917 (2006),
In the end it appears that exploring whether a right is constitutionally “vested” or not; or whether a statute affects the “remedy” as opposed to the “right” does not advance a solution to the problem. These are labels that can be used only to catalog the result, not explain it.
Without discussing Murray or Sanz and without citing -- but consistent with -- the 1842 holding in Keyes, the A.B. v. S.U. Court concluded that the Constitution does not prohibit lengthening a statute of limitations retroactively after the original statute has expired. This result was compelled by the assumption that Article 4 is coincident with federal procedural due process and by the failure of defendants to cite any relevant Vermont precedent, constitutional text or history.
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