ROBINSON, J.
A jury found that the defendant, the Hartford Roman Catholic Diocesan Corporation, acted negligently and recklessly when it assigned Father Ivan Ferguson, an alcoholic whose admitted acts of child molestation were understood to be linked to his drinking, to serve as the director of Saint Mary's Elementary School in Derby (Saint Mary's School), where he sexually abused the plaintiff, Jacob Doe,
Later that day, Whealon met with Donahue and Ferguson in Whealon's office; Gianelli did not attend that meeting. Whealon, however, memorialized that meeting in a handwritten memorandum to Gianelli, stating that Ferguson had been struggling with his sexuality since childhood, and "[n]ow alcohol has entered the picture." Whealon noted specifically that Ferguson had molested the two boys "in a way that showed his abject weakness," but was now "totally contrite," acknowledging he needed help, and had claimed that he was not in "immediate danger of touching others...." Whealon communicated the decisions made during the meeting, namely, that: (1) they would arrange for Ferguson to be treated at the House of Affirmation, an inpatient facility; (2) Donahue would inform the woman who had reported the molestation about their solution and "will ask them to tell no one"; and (3) Ferguson would "tell no one" of what happened. Whealon noted his "hope [that Ferguson] can get help [and] control it permanently. Otherwise we have a real problem."
Subsequently, on March 16, 1979, Donahue reported to Gianelli that Ferguson had not gone to the House of Affirmation, and did not want to leave Saint Bernard's Parish. Gianelli brought this to Whealon's attention. After following up on this report, Whealon stated in a memorandum that there "is more at [Northwest] than we know of," and that the mother of one of the boys who had been molested was seeing a counselor with him. Whealon observed further that the counselor was a mandated reporter under state law, and the "entire matter seems to be blowing up" as the "mother is not satisfied that anything is being done." With respect to additional victims, Whealon noted specifically that "there were [four] older boys, last summer. These last [two] were in [November] 1978. Seemingly nothing has happened at [Northwest]." Whealon directed Gianelli to call Ferguson and tell him to leave Saint Bernard's Parish, or else Whealon "who [is] liable," would order him out personally.
Subsequently, Gianelli discussed Ferguson's alcoholism and acts of child molestation with Father Michael Peterson, a priest and physician who was the director of the Saint Luke Institute in Holliston, Massachusetts. Gianelli then reported to Whealon that he had arranged for Ferguson to enter the inpatient program at the Saint Luke Institute on March 26, 1979, which would first "work with [his] chemical
Ferguson was treated as an inpatient at the Saint Luke Institute from March 26 through July 12, 1979. Whealon visited Ferguson at the Saint Luke Institute, and, after consultation with Peterson, arranged for Ferguson to be reintegrated into the ministry by assigning him to serve, upon his discharge, as the chaplain of Lauralton Hall, an all girls school, and to reside in a nearby rectory. Whealon summarized the details of the transition plan in a handwritten memorandum to Gianelli dated June 17, 1979, stating "it is OK to say that [Ferguson] is an alcoholic and is now completing his rehabilitation in a new alcoholism program." Whealon then directed Gianelli to arrange for: (1) Ferguson to reside in a "nearby rectory which has an open dialoguing, priestly spirit"; (2) Peterson to brief the rectory priests and school administrators about Ferguson's treatment for alcoholism; and (3) Father Leonard Kvedas, a local priest, to help Ferguson join a clergy oriented Alcoholics Anonymous group.
On June 8, 1981, Ferguson was assigned to serve full-time as assistant pastor of Saint Mary's Parish. Ferguson later requested a new teaching assignment, which Peterson had supported as clinically appropriate with respect to Ferguson's "other issues ... as long as the disease of alcoholism is in control."
The plaintiff and his best friend, R, attended Saint Mary's School while Ferguson was the priest-director there.
Ferguson then began to molest the plaintiff and R both on and off the grounds of Saint Mary's School. Ferguson would step in for the female gym teacher to supervise the male students in the communal shower after physical education classes, where he would soap the boys' backs and make comments about their genitals. Other molestations took place in the basement of Saint Mary's School, where the plaintiff would be summoned from class to help Ferguson retrieve supplies.
Ferguson's relationship with the plaintiff and R deepened as they entered eighth grade, and he often took them to restaurants and for sleepovers at the rectory,
As they moved into high school, the plaintiff and R never discussed their molestations or told anyone else about them; as adults, they initially agreed not to say anything about them. The plaintiff kept the molestations a secret for more than twenty years
In his two count complaint, the plaintiff claimed that the defendant's actions with respect to its assignment and supervision of Ferguson were negligent and reckless,
The trial court granted the plaintiff's motion to strike the special defense of
The case was tried to a jury, which returned a verdict finding that the plaintiff had proven by a preponderance of the evidence that the defendant's conduct was a proximate cause of the plaintiff's injuries insofar as it had negligently and recklessly failed to: (1) supervise Ferguson adequately in "his interaction and conduct toward minors with whom he would have contact"; (2) "immediately remove ... Ferguson from any position within the [defendant] when it knew or had reason to know that he was a danger to minors"; and (3) "warn or advise its congregations, parishioners and employees, which would have included the plaintiff's mother and father, of the threat which ... Ferguson posed to minor children, including the plaintiff." The jury awarded the plaintiff $1 million in compensatory damages, and the trial court awarded punitive damages in the form of attorney's fees and costs on the recklessness count. The trial court subsequently denied the defendant's motion to set aside the verdict.
On appeal, the defendant challenges numerous aspects of the trial court proceedings, contending that: (1) the evidence was insufficient to support the jury's negligence and recklessness verdicts; (2) the trial court made several improper evidentiary rulings; (3) the trial court improperly struck the defendant's special defense of laches; and (4) the revival of the plaintiff's time barred cause of action through the retroactive application of § 52-577d violated the defendant's substantive due process rights under the Connecticut constitution. We address each claim in turn, and set forth additional relevant facts and procedural history where necessary.
We begin with the defendant's claims challenging the sufficiency of the evidence in this case, specifically that: (1) expert testimony was necessary to support the plaintiff's claims by establishing what was commonly known about pedophilia during the late 1970s and early 1980s; (2) the jury could not reasonably have found that the defendant had failed to supervise Ferguson adequately; and (3) the jury's recklessness finding lacks support because there was no evidence that Whealon had consciously disregarded a known danger.
"A party challenging the validity of the jury's verdict on grounds that there was insufficient evidence to support such a result carries a difficult burden. In reviewing the soundness of a jury's verdict, we construe the evidence in the light most favorable to sustaining the verdict.... Furthermore, it is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence ... rather, we must determine ... whether the totality of the evidence, including reasonable inferences therefrom, supports the
Moreover, with respect to the trial court's refusal to set aside the verdict, "we accord great deference to the vantage of the trial judge, who possesses a unique opportunity to evaluate the credibility of witnesses.... The concurrence of the judgments of the [trial] judge and the jury... is a powerful argument for upholding the verdict." (Citation omitted; internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999).
"Two further fundamental points bear emphasis. First, the plaintiff in a civil matter is not required to prove his case beyond a reasonable doubt; a mere preponderance of the evidence is sufficient. Second, the well established standards compelling great deference to the historical function of the jury find their roots in the constitutional right to a trial by jury." (Footnote omitted.) Id., at 534-35, 733 A.2d 197.
The defendant first claims that, because of the age of the allegations in the present case relative to the time of trial, expert testimony was necessary to support the jury's finding of negligence. The defendant relies heavily on this court's decision in LePage v. Horne, 262 Conn. 116, 809 A.2d 505 (2002), and argues in its brief that expert testimony was necessary to establish the lay standard of care because of the complex nature of the subject matter of pedophilia "combined with the thirty-year gap between the conduct and the judging of it," insofar as "[s]ociety's understandings about child sexual abuse have changed significantly over time."
In response, the plaintiff contends that the trial court properly determined that expert testimony was not necessary because this was not a professional malpractice case centered on curing pedophilia, but rather, concerned the defendant's failure to apply a "minimal level of care" insofar as Ferguson "should have been in jail, not director of Saint Mary's School. If the defendant had shown a minimal level of concern for the obviously foreseeable future victims of a six time child molester and called the police, none of this would have happened." The plaintiff further argues that "[e]xpert testimony has never been required in Connecticut to prove a negligent supervision claim where there
"As an initial matter, we note that the [trial] court's determination of whether expert testimony was needed to support the plaintiff's claim of negligence against the defendant was a legal determination, and, thus, our review is plenary." Vanliner Ins. Co. v. Fay, 98 Conn.App. 125, 136-37, 907 A.2d 1220 (2006); accord LePage v. Horne, supra, 262 Conn. at 125-26, 809 A.2d 505; Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996).
"We begin by setting forth the relevant parameters under our negligence jurisprudence. The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.... Contained within the first element, duty, there are two distinct considerations.... First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty.... The issue of whether a duty exists is a question of law ... which is subject to plenary review. We sometimes refer to the scope of that duty as the requisite standard of care....
"[O]ur threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant.... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? ... The idea of risk in this context necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may possibly follow.... Accordingly, the fact finder must consider whether the defendant knew, or should have known, that the situation at hand would obviously and naturally, even though not necessarily, expose [the plaintiff] to probable injury unless preventive measures were taken." (Citations omitted; internal quotation marks omitted.) LePage v. Horne, supra, 262 Conn. at 123-24, 809 A.2d 505.
"[E]xpert testimony ... serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard.... Expert testimony is required when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors." (Citation
Guided by the content of the parties' summations, we agree with the plaintiff's characterization of the central question submitted to the jury in the present case, namely, whether it was reasonable for the defendant to rely on Peterson's opinion that Ferguson's continued sobriety was the key to maintaining the behavioral inhibitions that would keep him from molesting more boys. See footnote 8 of this opinion and accompanying text. The plaintiff correctly observes that the jury was not required to determine as a scientific matter whether pedophilia was at some point in history ever considered curable, or whether Ferguson was treated properly by Peterson and the clinical staff at the Saint Luke Institute. Rather, the issue for the jury boiled down to whether, given the gravity of the harms caused by child molestation, it was reasonable to take a chance on Ferguson's continued success in his alcoholism treatment. Accordingly, the question we must answer in this appeal is whether the possibility that an alcoholic might relapse is a subject within the ordinary juror's common knowledge and experience.
We conclude that the risk that a person under treatment for addiction to alcohol could relapse into that addiction is not, and historically has not been, a subject outside the common knowledge and experience of an ordinary juror. "Jurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct." (Internal quotation marks omitted.) State v. Padua, 273 Conn. 138, 157, 869 A.2d 192 (2005). To this end, it has long been established that "sobriety and intoxication are matters of common knowledge"; State v. Adams, 2 Conn.Cir.Ct. 481, 484, 202 A.2d 262 (1964); meaning that expert testimony is not required to explain their effects. State v. Folson, 10 Conn.App. 643, 653, 525 A.2d 126 (1987); accord State v. Padua, supra, at 157, 869 A.2d 192 (expert testimony not necessary to sustain risk of injury conviction because "the effects of orally ingesting marijuana are within the common knowledge of the average juror"); State v. Clark, 260 Conn. 813, 824, 801 A.2d 718 (2002) ("We recognize that, because it is an illegal substance, it may be that many jurors may have no firsthand knowledge regarding the effects of marijuana on one's ability to perceive and to relate events. At
Akin to the effects of alcohol, it has been held to be "a matter of common knowledge that addicts often relapse, going back and forth between substance abuse and sobriety."
Contrary to the defendant's claims, this case is not analogous to the more subtle intersection of common knowledge and medicine presented to the jury in LePage, which required us to consider whether an ordinary person would be aware, given then recent advances in research, that the risk of sudden infant death syndrome is not merely present, but "appreciably greater" when an infant is left sleeping in a prone position. LePage v. Horne, supra, 262 Conn. at 126, 809 A.2d 505. Rather, the present case presented the jury with the far simpler question of whether it was reasonable for the defendant to put Ferguson — who was known to the defendant as a child molester whose pedophilic tendencies were exacerbated by alcohol — back in a position where he was in contact with minors and, thus, roll the proverbial dice about whether Ferguson would ever drink alcohol and revert to his dangerous sexual proclivities.
The defendant next claims that there was insufficient evidence that it did not adequately supervise Ferguson because there was no evidence of how the defendant's personnel supervised him, insofar as the witnesses to the relevant facts are either dead or very elderly. Relying heavily on this court's decision in Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 734 A.2d 85 (1999), the defendant contends that the jury's finding of negligent supervision was, therefore, based on improper speculation and conjecture. The plaintiff contends otherwise, citing evidence of the secretive nature of the defendant's conduct vis-á-vis Ferguson and drawing an inference, from Bollea's inaction during the sleepovers in the rectory and Dougherty's testimony that Whealon and his aides had not advised anyone at Saint Mary's School to take precautions given Ferguson's history of child molestation. We agree with the plaintiff, and conclude that the jury's verdict of negligent supervision was supported by sufficient evidence.
Specifically, we disagree with the defendant's claim that the jury's conclusion that the defendant had not provided adequate
To the extent the defendant urges us to conclude otherwise through its reliance on the monitoring of Ferguson's sobriety, and occasional reports from the Saint Luke Institute to Whealon, it is asking us to sit as the "seventh juror" and retry the facts on appeal, which contravenes our long-standing reluctance "to disturb jury verdicts, and we accord great deference to the vantage of the trial judge, who possesses a unique opportunity to evaluate the credibility of witnesses." Gaudio v. Griffin Health Services Corp., supra, 249 Conn. at 534, 733 A.2d 197. Accordingly, we decline to disturb the jury's verdict finding that the defendant had negligently supervised Ferguson.
The defendant next claims that there was no evidence from which the
In response, the plaintiff contends that the defendant's recklessness is demonstrated by its "total lack of concern for the victims and their families," as evinced by Whealon's commitment to secrecy in furtherance of the "defendant's sole concern [being] to protect itself, its reputation, and its priests." Noting Whealon's knowledge of six prior molestations by Ferguson, the plaintiff emphasizes that, "[e]ven if [Whealon] believed, in defiance of common sense which existed in 1981 as it does today, that alcoholism was the cause of sexual molestation, it remained reckless to toss the wolf into the sheep pen and not warn a soul." (Emphasis in original.) We agree with the plaintiff, and conclude that the jury reasonably could have found that the defendant's actions rose to the level of recklessness.
"Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ... than that which is necessary to make his conduct negligent.... More recently, we have described recklessness as a state of consciousness with reference to the consequences of one's acts.... It is more than negligence, more than gross negligence.... The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them.... Wanton misconduct is reckless misconduct.... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Citations omitted; internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 832-33, 836 A.2d 394 (2003); see also Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988) ("The result is that [wilful], wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.... It is at least clear ... that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention...." [Internal quotation marks omitted.]).
We agree with the plaintiff that, given the vulnerability of the children attending the defendant's churches and schools, the jury reasonably could have
We next address the defendant's challenges to several of the trial court's evidentiary rulings, specifically those: (1) precluding the expert testimony of John Philip Jenkins, a social historian; and (2) relating to Ferguson's treatment at the Saint Luke Institute, including the admission of Ferguson's 1997 deposition testimony and the preclusion of Gianelli's testimony about Peterson's statements to him.
The defendant claims that the trial court improperly precluded the expert testimony from Jenkins, who would have testified that: (1) in the 1970s, child molestation was commonly believed to be incidental to causes such as alcoholism or senility, rather than an independently compulsive or persistent behavior; and (2) the defendant's response to what it learned about Ferguson was consistent with the practices considered appropriate in that period. The defendant argues that Jenkins' testimony would have provided the jury with a helpful "temporal context that would have reduced the problem of hindsight reasoning," given that this case concerned the lay standard of reasonable care from 1979 through 1983, rather than 2012 when this case was tried. In response, the plaintiff contends that the trial court did not abuse its discretion in excluding Jenkins' testimony because it was irrelevant to the issues in the case, and, further, as a historian and not a mental health professional, Jenkins was not qualified to testify about mental health practices in the 1970s. We agree with the plaintiff, and conclude that the trial court did not abuse its discretion by precluding Jenkins' expert testimony.
We note that the record reveals the following relevant facts and procedural history. The defendant disclosed that it intended to call Jenkins, who at the time of trial was a distinguished professor of history
Jenkins then testified that, in responding to incidents of sexual abuse, the consensus recommendation of the pre-1980s professional literature, consisting of psychiatric, psychological, and criminological journals and texts, was that "harm chiefly results from what is seen as a heavy-handed medical or official response," with many recommending against outreach to victims or offering them counseling. He stated that attitudes in the 1970s were "radically different to those prevailing today," insofar as the common perception was that the "offender was much less likely to be a compulsive individual and was much more likely to be a ... casual or incidental offender who committed perhaps one act in particular circumstances, but in such a way that did not necessarily mark him as being ... a lifelong or career or persistent offender." Jenkins also testified that, in the 1960s and 1970s, experts attributed sexually abusive behavior as secondary to personal immaturity, senility, or alcoholism, and the professional literature of the time "veer[ed] very strongly... towards therapy and treatment as opposed to punishment as a solution for molesters," and was "extremely optimistic about the potential of cure and prevention of reoccurrence, especially where the victim of the offense is a teenager as opposed to a prepubescent child." Jenkins found, however, that the changes in this field were occurring "rapidly and swiftly" by the mid-1980s.
The plaintiff filed a motion in limine to preclude, on relevance grounds, Jenkins' testimony "that public awareness of sexual abuse in society was not known to the public as it is now and that the defendant's conduct regarding ... Ferguson should be viewed in light of the same." The trial court granted this motion and disagreed with the defendant's arguments in support of the admission of Jenkins' testimony, stating that although Jenkins "is an expert historian with an emphasis on church history," virtually none of his authored peer reviewed articles related to child sexual abuse and "less than [10] percent of his published books touch on anything that
"[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court's decision will not be disturbed.... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.... Even if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm....
"This court recently articulated the test for the admission of expert testimony, which is deeply rooted in common law. Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.... In other words, [i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion....
"It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue.... Implicit in this standard is the requirement ... that the expert's knowledge or experience must be directly applicable to the matter specifically in issue." (Citations omitted; footnote omitted; internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 157-59, 971 A.2d 676 (2009); see also Conn. Code Evid. § 7-2.
We conclude that the trial court did not abuse its discretion in precluding Jenkins' testimony. Once the discrete factual issue of whether the defendant had, or should have had, notice of the fact that Ferguson was a child molester was eliminated by stipulation, the trial court reasonably determined that Jenkins' testimony became irrelevant and would have confused the jury in determining whether the defendant's actions in response to that knowledge constituted negligence.
The defendant's next two evidentiary claims, namely, that the trial court improperly: (1) admitted the deposition testimony of Ferguson; and (2) sustained the plaintiff's objection to Gianelli's testimony about whether Peterson had informed him that Ferguson was treated for sexual problems at the Saint Luke Institute, implicate the residual exception to the hearsay rule.
By way of background, we note that "[o]ut-of-court statements offered to establish the truth of the matter asserted are hearsay. Such statements generally are inadmissible unless they fall within an exception to the hearsay rule. A hearsay statement that does not fall within one of the traditional exceptions to the hearsay rule nevertheless may be admissible under the residual exception to the hearsay rule provided that [1] the proponent's
"We previously have identified several factors that bear upon the trustworthiness and reliability of an out-of-court statement, including: (1) whether the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification [could] be formed ... (2) the closeness of the relationship between the declarant and recipient... (3) whether the statement was made spontaneously and in confidence or obtained in response to government questioning conducted in anticipation of litigation... (4) the temporal proximity between the alleged statement and the events to which the statement refers ... and (5) whether the declarant testifies at trial and is subject to cross-examination." (Citations omitted; internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 728-29, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.Ct. 578, 166 L.Ed.2d 428 (2006). We review the trial court's determinations regarding reasonable necessity and the statement's trustworthiness under the abuse of discretion standard. In re Tayler F., supra, 296 Conn. at 536, 995 A.2d 611.
The defendant claims that the trial court improperly admitted the deposition testimony of Ferguson, which was taken in 1997 during the litigation of another case, in which Ferguson testified that he was treated only for alcohol abuse at the Saint Luke Institute, and nothing else. The defendant argues that the trial court improperly determined that the deposition testimony was "supported by equivalent guarantees of trustworthiness and reliability" because the factual issues in the 1997 case were distinct from those presented here, and it also was "riddled with self-serving omissions, half-truths, and falsehoods," along with Ferguson's repeated invocations of his privilege against self-incrimination under the fifth amendment to the United States constitution.
The record reveals the following additional relevant facts and procedural history. The plaintiff offered a transcript of Ferguson's 1997 deposition testimony to prove that Ferguson was "never treated for sexual abuse; that he was only treated for alcohol...." The defendant objected to the admission of the 1997 deposition as hearsay not subject to any exception. In response, the plaintiff contended that the deposition testimony was appropriately obtained and used under Practice Book § 13-3
Numerous portions of the 1997 deposition transcript were then read into evidence. That deposition testimony indicated that Ferguson had received treatment only for alcoholism at the Saint Luke Institute, and had not been treated for his sexual attraction to minors.
Second, as the plaintiff points out, Ferguson's testimony that he was not treated for any sexual disorders is consistent with the marketing materials provided by the Saint Luke Institute, which do not mention that the availability of such therapy, and the correspondence between Whealon and Peterson, which addresses Ferguson's alcohol treatment in detail, and is silent about the provision of treatment for any sexual disorder. This corroboration provides further support for the reliability of Ferguson's deposition testimony. See State v. Mourning, 104 Conn.App. 262, 280, 934 A.2d 263 (trial court did not abuse its discretion by declining to admit statement that declarant's cellmate was shooter when police officers could not corroborate that version of events), cert. denied, 285 Conn. 903, 938 A.2d 594 (2007). Accordingly, we conclude that the trial court did not abuse its discretion by admitting Ferguson's deposition into evidence under the residual exception.
The defendant's final evidentiary claim is that the trial court improperly sustained the plaintiff's hearsay objection to Gianelli's testimony with respect to Peterson's statements to him about the nature of Ferguson's treatment at the Saint Luke Institute. The defendant contends that this testimony was admissible under the residual exception because it was necessary, given that Peterson is dead, and his statements were sufficiently trustworthy and reliable since they were made in the context of Ferguson's medical treatment. The defendant also contends that this statement was not hearsay because it was not admitted for the truth of the matter asserted, namely, that Ferguson had in fact been treated for his sexual problems, but rather, to support the defendant's reasonable belief that he had received such treatment. In response, the plaintiff contends that the trial court did not abuse its discretion in sustaining his objection, and further, that any error in the exclusion of this testimony was harmless. We agree with the plaintiff and conclude that, even if we assume without
The record reveals the following additional relevant facts and procedural history. While cross-examining Gianelli, the defendant informed the court of its desire to inquire about whether Peterson had informed him that Ferguson had been treated for sexual disorders at the Saint Luke Institute. The plaintiff objected on the ground that the proffered testimony was hearsay that "is offered ... to prove that ... Ferguson was indeed treated for sexual problems." The defendant argued that it was admissible under the residual exception to the hearsay rule and, alternatively, as nonhearsay "evidence of what... Gianelli was told. And whether ... it was true or not true, it's still what he was told by ... Peterson." The trial court then questioned Gianelli about whether, if "Peterson told you that ... [Ferguson] received treatment for his sexual problems, as well as alcoholism while he was at [the Saint Luke Institute], did you share that information with anyone?" Gianelli responded that "I think I used a different term, but ... I think it's in one of these memos. But I don't remember that. I wouldn't want to answer that either way." The plaintiff observed that Gianelli had said no when questioned similarly on direct, and Gianelli stated, "I'm not sure what I said, to be — it's a vague thing for me." The trial court then sustained the plaintiff's objection without further elaboration.
Even if we assume, without deciding, that this testimony was not hearsay because it was not offered to prove the truth of the matter asserted, namely, that Ferguson had in fact been treated for his sexual disorder at the Saint Luke Institute; see, e.g., State v. Saucier, 283 Conn. 207, 223, 926 A.2d 633 (2007); this impropriety does not necessarily require reversal. "When a court commits an evidentiary impropriety, we will reverse the trial court's judgment only if we conclude that the trial court's improper ruling harmed the plaintiffs.... In a civil case, a party proves harm by showing that the improper evidentiary ruling likely affected the out-come of the proceeding." (Citation omitted.) Weaver v. McKnight, 313 Conn. 393, 417, 97 A.3d 920 (2014); see also, e.g., Duncan v. Mill Management Co. of Greenwich, 308 Conn. 1, 20-21, 60 A.3d 222 (2013) (factors for assessing harm from evidentiary error). The defendant has failed to establish that the exclusion of this hearsay testimony affected the verdict. The defendant does not point to any evidence that Gianelli communicated Peterson's claimed statement to his superiors, and Gianelli's own testimony is hazy on that point, as he testified that he did not remember what had been said. Thus, we conclude that any impropriety with respect to this evidentiary ruling is harmless error not requiring reversal.
We next address the defendant's claim that the trial court improperly granted the plaintiff's motion to strike its special defense of laches.
"Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on [a motion to strike] is plenary.... A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.... In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." (Internal quotation marks omitted.) TD Bank, N.A. v. M.J. Holdings, LLC, 143 Conn.App. 322, 326, 71 A.3d 541 (2013); see also, e.g., Mueller v. Tepler, 312 Conn. 631, 646-47, 95 A.3d 1011 (2014).
"Laches consists of an inexcusable delay which prejudices the defendant.... We have said on other occasions that [t]he defense of laches does not apply unless there is an unreasonable, inexcusable, and prejudicial delay in bringing suit.... Delay alone is not sufficient to bar a right; the delay in bringing suit must be unduly prejudicial." (Citations omitted; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 230 (1987); see also, e.g., State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 417 n. 3, 54 A.3d 1005 (2012). The defense of laches has, however, only limited applicability. "Laches is purely an equitable doctrine, is largely governed by the circumstances, and is not to be imputed to one who has brought an action at law within the statutory period." (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., supra, at 417 n. 3, 54 A.3d 1005, quoting A. Sangivanni & Sons v. F.M. Floryan & Co., 158 Conn. 467, 474, 262 A.2d 159 (1969).
The Appellate Court's decision in Giordano v. Giordano, supra, 39 Conn.App. 183, 664 A.2d 1136, is a paradigmatic example of the application of the principle that laches does not apply when a plaintiff has brought an action seeking legal relief within the statutory limitations period. In Giordano, the Appellate Court rejected the defendant's claim that § 52-577d "unfairly abrogates his right to assert the equitable defense of laches" because the plaintiffs' delay in bringing an action against him had "severely prejudiced" his ability to defend against the plaintiffs' allegations of childhood sexual abuse. Id., at 212-13, 664 A.2d 1136. Relying on A. Sangivanni & Sons v. F.M. Floryan & Co., supra, 158 Conn. at 474, 262 A.2d 159,
Agreeing with the defendant's argument that Giordano was wrongly decided would require us to overrule the well established principle that laches "is purely an equitable doctrine, is largely governed by the circumstances, and is not to be imputed to one who has brought an action at law within the statutory period." A. Sangivanni & Sons v. F.M. Floryan & Co., supra, 158 Conn. at 474, 262 A.2d 159. This would require us to jettison a lengthy body of precedent
"To import laches as a defense to actions at law would pit the legislative value judgment embodied in a statute of limitations ... against the equitable determinations of individual judges. Judges could disallow claims that the legislature had already determined were timely brought. Yet [m]odern statutes of limitations... embody the notion that fixing the periods for bringing damages actions is a legislative function.... Thus, to import laches as a defense to actions of law would alter the balance of power between legislatures and courts regarding the timeliness of claims." (Citations omitted; emphasis omitted; footnotes omitted; internal quotation marks omitted.) Naccache v. Taylor, supra, 72 A.3d at 155-56, quoting Ivani Contracting Corp. v. New York, 103 F.3d 257, 260 (2d Cir.1997). Thus, based on these "separation of powers and administrative concerns ... we conclude that the line between legal and equitable claims vis-á-vis laches is still sound, and we decline to disturb it. In cases at law, where the legislature has determined through a statute of limitations that the door for bringing suit should remain open for a predetermined period of time, it should not be left to a judge's discretion to close that door early."
Finally, we turn to the defendant's claim that the retroactive application of the extended sexual abuse statute of limitations, § 52-577d, to revive the plaintiff's time barred action violated its substantive due process rights under article first, §§ 8 and 10, of the Connecticut constitution because the defendant had a vested right to a defense under the lapsed statute of limitations.
In response, the plaintiff contends that there is no constitutional defect because under Roberts v. Caton, 224 Conn. 483, 619 A.2d 844 (1993), "no vested or substantive rights are at stake in revival of expired claims brought pursuant to ... § 52-577d." The plaintiff then contends that, because § 52-577d does not implicate any fundamental rights, our review of that statute's constitutionality is limited to determining whether the legislature had a rational basis for enacting it, noting that the statute serves a legitimate purpose by "help[ing] minor victims of sexual abuse come to terms with what has happened to them," often many years later. The plaintiff then provides additional support for rational basis review, rather than heightened scrutiny, of § 52-577d by supplying his own Geisler analysis that relies primarily on Chase Securities Corp. v. Donaldson, supra, 325 U.S. 304, 65 S.Ct. 1137, and Campbell v. Holt, supra, at 115 U.S. 620, 6 S.Ct. 209, and sister state decisions following them in holding that the revival of a nonstatutory cause of action is not a due
Determining the "constitutionality of a statute presents a question of law over which our review is plenary.... It [also] is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt.... The court will indulge in every presumption in favor of the statute's constitutionality.... Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear." (Internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 155, 957 A.2d 407 (2008).
In examining the constitutionality of § 52-577d under our state constitution, we recognize that, "[a]lthough earlier case law indicated that the due process provisions of both constitutions have the same meaning and the same limitations... more recent case law has suggested that our state constitution may, in certain instances, afford greater substantive due process rights than the federal constitution. For example, in Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, [229 Conn. 312, 316, 640 A.2d 101 (1994)], a case involving a substantive due process challenge brought under the state constitution, we stated: It is beyond dispute that we are not bound by federal precedents in interpreting our own state constitutional provisions. [F]ederal decisional law is not a lid on the protections guaranteed under our state constitution." (Citations omitted; emphasis in original; internal quotation marks omitted.) Ramos v. Vernon, 254 Conn. 799, 836-37, 761 A.2d 705 (2000).
It is "axiomatic" that article first, § 10, of the Connecticut constitution "not only guarantees fair procedures in
"Despite the important role of substantive due process in securing our fundamental liberties, that guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm.... Rather, substantive due process has been held to protect against only the most arbitrary and conscience shocking governmental intrusions into the personal realm...." (Internal quotation marks omitted.) Id., at 835-36, 761 A.2d 705.
"[O]ur jurisprudence has identified a starting point for discovering fundamental rights guaranteed protection under our state constitution from arbitrary and conscience shocking governmental intrusions into the personal realm...." (Internal quotation marks omitted.) Id., at 838, 761 A.2d 705. "In determining the scope of our state constitution's due process clauses, we have taken as a point of departure those constitutional or quasi-constitutional rights that were recognized at common law in this state prior to 1818." (Internal quotation marks omitted.) Id.
"The analytical framework by which we determine whether, in any given instance, our state constitution affords broader protection to our citizens than the federal constitutional minimum is well settled. In State v. Geisler, [supra, 222 Conn. at 684-86, 610 A.2d 1225], we enumerated the following six factors to be considered in determining that issue: (1) persuasive relevant federal precedents; (2) the text of the operative constitutional provisions; (3) historical insights into the intent of our constitutional forebears; (4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise described, relevant public policies....
"The Geisler factors serve a dual purpose: they encourage the raising of state constitutional issues in a manner to which the opposing party — the state or the defendant — can respond; and they encourage a principled development of our state constitutional jurisprudence. Although in Geisler we compartmentalized the factors that should be considered in order to stress that a systematic analysis is required, we recognize that they may be inextricably interwoven.... [N]ot every Geisler factor is relevant in all cases.... Moreover, a proper Geisler analysis does not require us simply to tally and follow the decisions favoring one party's state constitutional claim; a deeper review of those decisions' underpinnings is required because we follow only persuasive decisions." (Citations omitted; internal quotation marks omitted.) State v. Jenkins, 298 Conn. 209, 261-62, 3 A.3d 806 (2010).
Finally, our determination of whether the state constitution affords greater protection than does the federal constitution will dictate the level of judicial review that we ultimately apply to § 52-577d. See, e.g., Contractor's Supply of Waterbury, LLC v. Commissioner of Environmental Protection, 283 Conn. 86, 98-101, 925 A.2d 1071 (2007); Kerrigan v. Commissioner of Public Health, supra, 289 Conn. at 174-75, 957 A.2d 407. Like
We begin with the relevant constitutional language. Article first, § 8, of the Connecticut constitution provides in relevant part: "No person shall ... be deprived of life, liberty or property without due process of law...." Its civil counterpart, which is set forth in article first, § 10, of the Connecticut constitution provides: "All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."
Although, the language in article first, § 10, of the Connecticut constitution that addresses the right to the administration of justice "without ... delay" reasonably could be read as supporting the defendant's argument that an extended limitations period reviving a decades old cause of action runs afoul of that constitutional guarantee,
As the parties acknowledge, there is no constitutional history on point from the proceedings of the 1818 or 1965 constitutional conventions. Nevertheless, we conclude that our state's constitutional history provides support for the plaintiff, given "the historical record of the period before and at the time of the adoption of the provision[s]" at issue. State v. Ayala, 222 Conn. 331, 349, 610 A.2d 1162 (1992). First, statutes of limitations are long rooted in Connecticut's legal history, some predating the enactment of the 1818 constitution. See Sanborn v. Greenwald, 39 Conn.App. 289, 300, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995); see also Lombard v. Edward J. Peters, Jr., P.C., 79 Conn.App. 290, 298, 830 A.2d 346 (2003) ("genesis" of personal injury statute of limitations, General Statutes § 52-584, "can be found in 1853 legislation providing for recovery in negligence against railroad companies"); Sanborn v. Greenwald, supra, at 300-301, 664 A.2d 803 (noting that General Statutes § 52-577, general tort statute of limitations, has existed since 1821).
It is significant then, that in the years leading to the adoption of our first constitution in 1818, that the legislature had acted to revive time barred actions in a way that affected vested rights, in particular by adopting a 1795 resolution that set aside a 1793 probate court decree, which otherwise could not be appealed because the eighteen month statute of limitations had lapsed. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). That 1795 resolution had the effect of disturbing rights to real property that otherwise had vested under the 1793 probate court decree. Id., at 386-87; see also id., at 401 (establishing that ex post facto clause applies only in criminal cases). That the framers of the 1818 constitution did not act to preclude retroactive revival of time barred claims, in the face of a dispute centered on that point that went to the United States Supreme Court, suggests that the right claimed by the defendant did not exist in the 1818 constitution, which "did not create a government but gave to that which had already been established the sanction of the people and, in very general language, formulated its framework." Dowe v. Egan, 133 Conn. 112, 119, 48 A.2d 735 (1946). Accordingly, we conclude that the constitutional history
The relevant federal case law strongly favors the plaintiff, and virtually begs the state constitutional question presented in the present appeal. Specifically, the two leading decisions from the United States Supreme Court, Campbell v. Holt, supra, 115 U.S. 620, 6 S.Ct. 209, and Chase Securities Corp. v. Donaldson, supra, 325 U.S. 304, 65 S.Ct. 1137, hold that a defendant does not have a vested property right in a statute of limitations defense such that a legislative change reviving an otherwise time barred cause of action violates the defendant's rights under the due process clause of the fourteenth amendment to the United States constitution.
Campbell, the leading federal case in this area, was a contracts case from the reconstruction era in which the United States Supreme Court rejected a due process challenge to a provision of the Texas state constitution that had been interpreted to revive actions that had become time barred between the end of the Civil War and the reinstatement of Texas to the union by the Congress of the United States. Campbell v. Holt, supra, 115 U.S. at 621-22, 6 S.Ct. 209. Distinguishing a defense to a cause of action from title to real or personal property derived by the passage of time, such as by adverse possession, the Supreme Court rejected the defendants' claim that the statute of limitations defense "is a vested right, and a right of property which is protected by the provisions of the [f]ourteenth [a]mendment." Id., at 628, 6 S.Ct. 209; see also id. ("the word[s] vested right [are] nowhere used in the [c]onstitution, neither in the original instrument nor in any of the amendments to it"). The Supreme Court characterized statutes of limitations as restrictions only on the remedy, and emphasized that "[t]he authorities... show that no right is destroyed when the law restores a remedy which had been lost." Id.
The United States Supreme Court unanimously reaffirmed the holding of Campbell in Chase Securities Corp. v. Donaldson, supra, 325 U.S. 304, 65 S.Ct. 1137, which was a challenge to a revised Minnesota "Blue Sky" law that had the effect of reviving certain lapsed securities civil actions. See id., at 307-308, 65 S.Ct. 1137.
The rule of Campbell and Chase Securities Corp., namely, that there is no absolute vested right in a statute of limitations defense absent entry of a final judgment, remains controlling as a matter of federal due process.
We conclude that Connecticut case law supports the plaintiff, both with respect to cases concerning § 52-577d and other statutes of limitations specifically, and also as to the constitutionality of retroactive legislation affecting existing legal rights as a more general matter.
With respect to § 52-577d itself, we deem particularly instructive this court's construction of that statute in Roberts v. Caton, supra, 224 Conn. 483, 619 A.2d 844. In Roberts, this court considered, as a matter of statutory construction, whether the legislature intended the 1991 amendments to § 52-577d, which expanded the statute of limitations from two to seventeen years, to apply retroactively to revive the plaintiff's otherwise untimely cause of action against her grandfather. Id., at 485-88, 619 A.2d 844; see also footnote 37 of this opinion. Relying on the distinction between substantive and procedural legislation discussed in, inter alia, Moore v. McNamara, 201 Conn. 16, 513 A.2d 660 (1986), Andrulat v. Brook Hollow Associates, 176 Conn. 409, 407 A.2d 1017 (1979), and Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 286 A.2d 308 (1971), this court concluded that the legislature intended the 1991 amendments to § 52-577d to apply retroactively. Roberts v. Caton, supra, at 488, 619 A.2d 844. In so concluding, this court emphasized the "general proposition that statutes of limitation are presumed to apply retroactively," insofar as they are typically considered procedural, rather than substantive, legislation; thus, "unless specifically tied to a statutory right of action or unless a contrary legislative intent is expressed, the statute of limitations in effect at the time an action is filed governs the timeliness of the claim."
This court then rejected, inter alia, the defendant's argument that "§ 52-577d as amended altered [his] substantive rights by expanding the period of liability by fifteen years," and disagreed with his "suggest[ion] that a new liability is imposed by the mere fact that a preexisting liability is no longer barred by the passage of time." Id., at 492, 619 A.2d 844. Observing that "[s]ubstantive rights are those that can be identified as existing between the parties at the time the cause of action accrued"; id., at 490, 619 A.2d 844; this court rejected the defendant's argument that "§ 52-577d as amended imposed new liabilities"; id.; emphasizing that it "has never recognized a vested right in the lapsing of a statute of limitations. Although changes
Further, and of additional import under the Geisler factor addressing public policy considerations; see part IV F of this opinion; the court in Roberts rejected the defendant's claim that, "even if we find that § 52-577d as amended is procedural, it should not apply retroactively because considerations of good sense and justice dictate otherwise." Roberts v. Caton, supra, 224 Conn. at 492, 619 A.2d 844. The court acknowledged that the "retroactive application of § 52-577d as amended to this case subjects the defendant to a lawsuit for acts that occurred, most recently, thirteen years ago"; id., at 493, 619 A.2d 844; but went on to observe that, "[a]lthough statutes of limitation generally operate to prevent the unexpected enforcement of stale claims ... one object of § 52-577d is to afford a plaintiff sufficient time to recall and come to terms with traumatic childhood events before he or she must take action. The defendant's assertion that he is now unexpectedly exposed to liability was an express purpose of the statute. We see no injustice in retroactively applying § 52-577d as amended so as to effect that purpose." (Citation omitted; footnote omitted.) Id., at 493-94, 619 A.2d 844; see also Giordano v. Giordano, supra, 39 Conn.App. at 190-92, 664 A.2d 1136 (rejecting federal equal protection and procedural due process challenge to 1991 amendments to § 52-577[d] under rational basis review because of state's "legitimate interest" in "allow[ing] victims to recall sexual abuse that had been repressed, and to bring an action against the perpetrators of that abuse as part of the victim's healing process," particularly given that plaintiffs and defendants were affected equally by passage of time); Almonte v. New York Medical College, 851 F.Supp. 34, 37-38 (D.Conn.1994) (noting "[l]egislature's intent to broaden the remedies available to victims of sexual abuse through the extended limitations period" and that it "recogniz[ed] that it may take years for a victim to come to terms with the sexual abuse" or "identify those responsible").
Although we declined to consider this argument in Investment Associates because it was not properly preserved; see id.; the defendant argues that what we did say about the merits in Investment Associates is "suggestive," and that there is, therefore, some significance in the plaintiff's failure to address Skakel in his brief. We disagree. The constitutional considerations informing the statutory construction analysis in Skakel and Crowell are unique to the criminal context, wherein "a law enacted after expiration of a previously applicable limitations period violates the [e]x [p]ost [f]acto [c]lause [of the federal constitution] when it is applied to revive a previously time barred prosecution ... because it deprives the defendant of a fully vested defense to prosecution, the constitution does not prevent the [s]tate from extending time limits ... for prosecutions not yet time barred." (Citation omitted; emphasis omitted; internal quotation marks omitted.) State v. Skakel, supra, 276 Conn. at 681, 888 A.2d 985, quoting Stogner v. California, 539 U.S. 607, 632-33, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003); see also Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). Put differently, nothing in footnote 17 of Investment Associates, including the citations therein, should be read to reflect our understanding of the constitutional implications of the retroactive revival of time barred civil actions, given the United States Supreme Court's decisions in Campbell v. Holt, supra, 115 U.S. 620, 6 S.Ct. 209, and Chase Securities Corp. v. Donaldson, supra, 325 U.S. 304, 65 S.Ct. 1137, which are not cited in Investment Associates. See also State v. Skakel, supra, at 682, 888 A.2d 985 (The court cites Roberts and concludes that "subject to the limitations of the ex post facto clause, criminal statutes of limitation ... should be accorded a presumption of retroactivity. Indeed, we long have held that civil statutes of limitation are presumed to apply retroactively because they do not affect or alter substantive rights.").
Nevertheless, we remain cognizant that statutes of limitations "represent a legislative judgment
This court's construction of § 52-577d in Roberts v. Caton, supra, 224 Conn. 483, 619 A.2d 844, accords with its approach to retroactive legislation more generally, beginning nearly two centuries ago with Chief Justice Stephen Hosmer's opinion in Goshen v. Stonington, supra, 4 Conn. 209. In Goshen, this court upheld 1820 legislation that retroactively validated marriages in order to help determine the towns' support obligations to their poor residents. Id., at 223; see id., at 209-10. Addressing a constitutional challenge to the retroactive effect of the 1820 legislation, the court observed that the "retrospection of the act is indisputable, and equally so is its purpose to change the legal rights of the litigating parties," giving rise to the question of "[w]hether in doing this there has been injustice...."
Applying this standard, this court held that the 1820 legislation, "thus far directly operating on vested rights, is admitted to be unquestionably valid, because it is manifestly just." (Emphasis added.) Id., at 222. Observing that Connecticut's constitution, unlike that of other states, lacks an express prohibition of retroactive legislation; id., at 223; Chief Justice Hosmer emphasized his disagreement with "those, who deny the power of the legislature to make laws, in any case, which, with entire justice, operate on antecedent legal rights. A retrospective law may be just and reasonable; and the right of the legislature to enact one of this description, I am not speculatist enough to question." Id., at 226. Ultimately, the court upheld the 1820 legislation because it "was intended to quiet controversy, and promote the public tranquility." Id., at 226; accord Welch v. Wadsworth, 30 Conn. 149, 155 (1861) (following Goshen and emphasizing that constitution lacks provision "restrain[ing] the legislature from passing retrospective laws," and therefore legislature may do so unless "particular retrospective act ... is shown to the court, with entire clearness and certainty, to be so unreasonable and unjust in its operation upon antecedent legal rights, that the action of the legislature can not be vindicated by any reasonable intendment or allowable presumption" [emphasis added]); Mechanics' & Working-Men's Mutual Savings Bank & Building Ass'n v. Allen, 28 Conn. 97, 102 (1859) (following Goshen and rejecting "the broad ground that a retroactive law is of course and under all circumstances to be treated as a nullity ... for healing enactments are found absolutely necessary, continually, and under all governments, to remedy the evils arising from human imperfections").
As the defendant argues, Goshen and its progeny embody principles of substantive due process review as applied prior to the enactment of the fourteenth amendment to the United States constitution, particularly given Goshen's reference to the "`social compact.'" Washington v. Glucksberg, 521 U.S. 702, 756-57, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (Souter, J., concurring). Thus, it is significant that this court has rejected constitutional challenges under Goshen v. Stonington, supra, 4 Conn. at 222, to the retroactive application of numerous statutes that "directly operat[e] on vested rights." See, e.g., Sanger v. Bridgeport, 124 Conn. 183, 186, 198 A. 746 (1938) (upholding validity of statute curing defective notice of highway defect claim and noting that "[r]emedial statutes may be retrospective in operation provided they do not impair contracts or disturb absolute vested rights, but only go to confirm rights already existing and in furtherance of the remedy, and by curing defects afford or
Thus, we conclude that the Connecticut case law factor, which significantly informs our state constitutional analysis, favors the position of the plaintiff. Although our state's case law recognizes the defendant's interest in the protection against stale claims afforded by statutes of limitations; see, e.g., State v. Skakel, supra, 276 Conn. at 682-83, 888 A.2d 985; it nevertheless embraces the constitutional permissibility of "manifestly just" retroactive legislation affecting existing legal rights and obligations; see Goshen v. Stonington, supra, 4 Conn. at 222; and has interpreted § 52-577d accordingly in Roberts v. Caton, supra, 224 Conn. 483, 619 A.2d 844.
The courts of the forty-four states that have considered the issue presented in this appeal take divergent approaches to whether an extended statute of limitations may constitutionally be applied retroactively to revive otherwise time barred claims.
The courts of eighteen states follow the federal approach embodied in Campbell v. Holt, supra, 115 U.S. 620, 6 S.Ct. 209, and Chase Securities Corp. v. Donaldson, supra, 325 U.S. 304, 65 S.Ct. 1137, and allow the retroactive expansion of the statute of limitations to revive otherwise time-lapsed claims — seemingly without limitation. Of those states, three, namely, Iowa, West Virginia, and New Mexico, do not squarely ground their decisions in any particular state or federal constitutional provision.
In contrast, the courts of twenty-four states support the position that legislation that retroactively amends a statute of limitations in a way that revives time barred claims is per se invalid. Of those states, seven, namely, Alabama, Colorado, Missouri, New Hampshire, Oklahoma, Tennessee, and Texas, ground their holdings in independent state constitutional provisions prohibiting retroactive legislation.
Finally, the courts of Wisconsin and New York navigate between the poles of the broadly permissive federal approach embodied in Campbell v. Holt, supra, 115 U.S. 620, 6 S.Ct. 209, and Chase Securities Corp. v. Donaldson, supra, 325 U.S. 304, 65 S.Ct. 1137, and the absolute bar analysis followed by those state courts that have rejected the Supreme Court's reasoning in those cases. The New York Court of Appeals has held that the legislature "may constitutionally revive a personal cause of action" if it reasonably determines that "the circumstances are exceptional and are such as to satisfy the court that serious injustice would result to plaintiffs not guilty of any fault if the intention of the [l]egislature were not effectuated."
Although both parties can claim some support from the sister state case law factor, we conclude that, on balance, it ultimately favors the position of the plaintiff. The decisions that follow the federal approach embodied in Campbell v. Holt, supra, 115 U.S. 620, 6 S.Ct. 209, and Chase Securities Corp. v. Donaldson, supra, 325 U.S. 304, 65 S.Ct. 1137, are most consistent with our own body of case law in this area; see part IV D of this opinion; and
Although both parties' public policy arguments are well taken, this factor favors the plaintiff because of the actions of our legislature, which has the primary responsibility for formulating the public policy of our state. The defendant points out, however, in arguing that "[a]llowing a cause that expired in 1988 to be brought in 2008 does enormous economic and sociological harm," that it is well settled that statutes of limitations "prevent stale claims and unnecessary delays in the presentation of issues," and serve the salutary purpose of "allow[ing] persons, after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability...." (Internal quotation marks omitted.) Electrical Contractors, Inc. v. Ins. Co. of the State of Pennsylvania, supra, 314 Conn. at 768-69, 104 A.3d 713. Put differently, statutes of limitations "prevent the unexpected enforcement of stale claims concerning which the persons interested have been thrown off their guard by want of prosecution."
On the other hand, the plaintiff emphasizes the "legitimate legislative purpose" of § 52-577d, as explained in Roberts v. Caton, supra, 224 Conn. at 493-94, 619 A.2d 844, namely, "to afford a plaintiff sufficient time to recall and come to terms with traumatic childhood events before he or she must take action," with a defendant being "now unexpectedly exposed to liability... an express purpose of the statute." Indeed, Senator Anthony Avallone, reflected on "`substantial testimony before the [Judiciary] Committee that minor victims of sexual assault often do not understand or recognize the damage which they have sustained until a substantial number of years after they attain majority. In fact, it is not just two or three years, but can be substantially longer than that.... So the [Judiciary] Committee in recognition of that extends the statute of limitations on which one can bring an action.'" Id., at 493 n. 8, 619 A.2d 844, quoting 34 S. Proc., Pt. 7, 1991 Sess., p. 2495.
The public policy objective argued by the plaintiff finds support from numerous commentators. In one significant example, Professor Marci Hamilton observes that "[l]egislation that eliminates the civil [statute of limitations] or includes
In our view, the public policy Geisler factor favors the plaintiff. Given the reasonable policy concerns that support the parties' respective state constitutional arguments, in interpreting our state's constitution, we must defer to the legislature's "primary responsibility" in pronouncing the public policy of our state.
Having reviewed the wealth of persuasive and relevant materials revealed by our Geisler analysis, we conclude that the retroactive application of § 52-577d to revive the plaintiff's otherwise time barred claims does not violate the defendant's substantive due process rights under our state constitution. Consistent with our observation in Roberts v. Caton, supra, 224 Conn. at 492, 619 A.2d 844, that this court "has never recognized a vested right in the lapsing of a statute of limitations," more than one century of Connecticut case law, beginning with Goshen v. Stonington, supra, 4 Conn. at 221-22, has sustained retroactive legislation that affects significant legal interests. Our constitutional history following Calder v. Bull, supra, at 3 U.S. (3 Dall.) 386, suggests that the retroactive revival of time barred claims did not offend the drafters of our 1818 constitution. This significant legal background, unique to Connecticut, does not support the defendant's claim that we should follow the decisions of our sister states that have rejected the United States Supreme Court's decisions in Campbell v. Holt, supra, 115 U.S. 620, 6 S.Ct. 209, and Chase Securities Corp. v. Donaldson, supra, 325 U.S. 304, 65 S.Ct. 1137, and have adopted an approach imposing an absolute constitutional bar on changes to statutes of limitations that would operate retroactively to revive time barred actions.
Thus, because our Geisler analysis indicates that the state constitution does not provide greater protection to the defendant's interest in the lapse of the statute of limitations than is afforded under the federal
This court previously has determined that "considerations of good sense and justice" support the retroactive application of the extended statute of limitations of § 52-577d as a matter of statutory construction. Roberts v. Caton, supra, 224 Conn. at 493, 619 A.2d 844. Consistent with the public policy objectives discussed in part IV F of this opinion, the legislature, in extending § 52-577d and applying it retroactively, balanced the fact that some defendants may be exposed to "unexpected" liability; id., at 494, 619 A.2d 844; with a recognition that "it may take years for a victim to come to terms with the sexual abuse," and an implicit understanding "that it may take as much time to identify those responsible for the abuse...." Almonte v. New York Medical College, supra, 851 F.Supp. at 37-38. Given the unique psychological and social factors that often result in delayed reporting of childhood sexual abuse, which frustrated the ability of victims to bring an action under earlier revisions of the statute of limitations, we cannot say that the legislature acted unreasonably or irrationally
The judgment is affirmed.
In this opinion ROGERS, C.J., and PALMER, EVELEIGH and McDONALD, Js., concurred.
ZARELLA, J., concurring.
I generally agree with the majority's analysis, and I concur in the result that the majority reaches. I write separately, however, because I believe that the framework for analyzing state constitutional claims announced in State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992), requires modification. In my view, when interpreting our state constitution, we generally should examine only the text of the constitution, the historical circumstances surrounding its adoption, and Connecticut case law to the extent that each is applicable. The other factors of consideration announced in Geisler, namely, federal case law, sister state case law, and sociological and economic considerations, do not shed any light on the meaning of our constitution except in certain, rare instances. Although I recognize that this court has analyzed state constitutional claims under Geisler for years, I believe that Geisler was overly expansive insofar as it listed factors of consideration that are wholly unrelated to our state's constitutional history and traditions. Accordingly, I respectfully concur.
In determining the appropriate method of constitutional interpretation, we must recognize that our constitution begins with a declaration that it comprises a "social compact" among the people of Connecticut. Conn. Const., art. I, § 1. This notion of a social compact has a long-standing history both in our jurisprudence; see Opinion of the Judges of the Supreme Court, 30 Conn. 591, 593 (1862) ("[t]he constitution of the state ... embodies [the] supreme original will [of the people], in respect to the organization and perpetuation of a state government" [emphasis in original]); and the concept of constitutional government generally. See, e.g., J. Locke, Two Treatises of Government (1821) § 171, p. 338 ("[political] power ... has its origin only from compact and agreement, and the mutual consent of those who make up the community" [emphasis omitted]); T. Paine, Rights of Man: Being an Answer to Mr. Burke's Attack on the French Revolution (2d Ed. 1791) p. 36 ("[t]he constitution of a country is not the act of its government, but of the people constituting a government"); see also G. Tarr, Understanding State Constitutions (1998) p. 200 ("in interpreting a state constitution, a state court is interpreting a unique collection of provisions with a distinctive generating history"); cf. Calder v. Bull, 3 U.S. (3 Dall.) 386, 388, 1 L.Ed. 648 (1798) ("The people of the United States erected their [c]onstitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact...." [Emphasis omitted.]).
With the understanding that our state constitution is a social compact between the citizens of Connecticut, it becomes clear that we must interpret the state constitution by focusing on considerations and concerns of those who came together to form the social compact. Our charge as a court is to determine what powers those who entered into the compact wished to delegate to their government and what rights and privileges they wished to reserve for themselves. Cf. Bridgeport Public Library & Reading Room v. Burroughs
With respect to sister state case law, I fail to see why we should consider other courts' interpretations of other state constitutions to interpret our constitution in the absence of a specific connection to our constitution and its history. For instance, interpretations of constitutions such as Wyoming's, which was adopted in 1890; Stogner v. State, 792 P.2d 1358, 1360 (Wyo. 1990); rarely will be helpful in interpreting a provision originally adopted in our 1818 constitution. On the other hand, interpretations of the Mississippi constitution may be helpful because "[t]he declaration of rights adopted in 1818 appears to have its antecedents in the Mississippi constitution of 1817...." (Internal quotation marks omitted.) State v. Williams, 311 Conn. 626, 634, 88 A.3d 534 (2014). Likewise, interpretations of other states' constitutions may be of some small weight in our interpretation of a constitutional provision added at our 1965 constitutional convention if there is evidence that the delegates and voters considered a coterminous provision of another state's constitution in adopting the Connecticut provision. Additionally, the legislative history of amendments not adopted at a convention, which may refer to decisional law of another state, may be helpful in determining their meaning and scope. We should not, however, indiscriminately consider sister state case law because our object is to interpret Connecticut's constitution, not to conform it to some national consensus.
With respect to federal case law, the same principles apply. Because the federal constitution was drafted prior to Connecticut's first constitution, federal precedent interpreting the federal constitution may be helpful in interpreting our constitution if there is historical or textual evidence that a certain provision of our constitution was patterned after a provision in the federal constitution. See, e.g., State v. Davis, 283 Conn. 280, 306-307, 929 A.2d 278 (2007) ("[T]his court repeatedly has observed that the language of article first, § 7, of the state constitution closely resembles the language of the fourth amendment to the federal constitution.... That linguistic similarity undermines the defendant's contention that the state constitution provides a greater opportunity to challenge the legality of a search than the federal constitution. The similarity denotes `a common source and, thus, [supports] a common interpretation of the provisions.'" [Citations omitted; footnote omitted.]). The fact that the framers of our first constitution did not adopt the federal constitution wholesale but, instead, drafted a unique text suggests that the differences between our constitution and the federal constitution were intentional and should be given their due weight. Thus, I believe that interpretations of the federal constitution may be instructive only insofar as there is a specific connection between the federal constitution and our state constitution.
With respect to the final Geisler factor, sociological and economic concerns, this factor apparently was intended to allow
I do not believe that such considerations ever can be an appropriate tool of constitutional analysis, aside from historical considerations of public policies considered by the framers of our constitution. To suggest that we should interpret the state constitution according to our own assessment of the public policy implications of a statute or program is antithetical to our role as a judicial body. Indeed, prior to Geisler, we stated that "the primary responsibility for formulating public policy must remain with the legislature." State v. Whiteman, 204 Conn. 98, 103, 526 A.2d 869 (1987); see also Cologne v. Westfarms Associates, 192 Conn. 48, 65, 469 A.2d 1201 (1984) ("It is not the role of this court to strike precise balances among the fluctuating interests of competing private groups which then become rigidified in the granite of constitutional adjudication. That function has traditionally been performed by the legislature, which has far greater competence and flexibility to deal with the myriad complications which may arise from the exercise of constitutional rights by some in diminution of those of others."). Thus, we come dangerously close to usurping the role of the legislature when we independently analyze the public policy implications of a statute to determine its constitutionality. Accordingly, public policy considerations should play no role in our interpretation of the state constitution.
In the present case, the majority considers all six Geisler factors in its analysis
The majority concludes that the text of our constitution supports neither party because the language in article first, §§ 8 and 10, of the state constitution is "at best ambiguous with respect to the constitutional issue presented in this appeal." In my view, the focus of our textual analysis should be on the constitutional language that specifically pertains to the claim of the defendant, Hartford Roman Catholic Diocesan Corporation, namely, the term "property." The basis of the defendant's claim is that it has a vested right to a legal defense under a lapsed statute of limitations that amounts to a property interest. There is no question that the constitution protects individuals from governmental interference with their property interests, as article first, § 8, provides in relevant part that "[n]o person shall be ... deprived of life, liberty or property without due process of law...." (Emphasis added.) Thus, there is some basis for the defendant's claim in the text of the constitution insofar as it generally protects private property.
This language, however, is not determinative. "Because the [c]onstitution protects rather than creates property interests, the existence of a property interest is determined by reference to existing rules or understandings that stem from an independent source such as state law." (Internal quotation marks omitted.) A. Gallo & Co. v. Commissioner of Environmental Protection, 309 Conn. 810, 824, 73 A.3d 693 (2013), cert. denied sub nom. A. Gallo & Co. v. Esty, ___ U.S. ___, 134 S.Ct. 1540, 188 L.Ed.2d 581 (2014); see also Giaimo v. New Haven, 257 Conn. 481, 499, 778 A.2d 33 (2001) ("Property interests ... are not created by the [c]onstitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." [Internal quotation marks omitted.]). Accordingly, we must refer to sources beyond the text of the constitution to determine whether a statute of limitations defense can, as the defendant claims, constitute a vested property interest.
Specifically, we must turn to the historical circumstances surrounding the adoption of our constitution because, "[i]f the words [of the state constitution] have a doubtful meaning, or are susceptible of two meanings, they should receive that which will effectuate the intent of the framers of the [c]onstitution and the general intent of the instrument." (Internal quotation marks omitted.) Cologne v. Westfarms Associates, supra, 192 Conn. at 62, 469 A.2d 1201, quoting Borino v. Lounsbury, 86 Conn. 622, 625, 86 A. 597 (1913). As previously stated, I agree with the majority that our constitutional history provides no support for the defendant's claim, as the legislature passed a resolution prior to 1818 that allowed a couple to appeal from an adverse ruling of the Probate Court even though the applicable limitation period for appeals had lapsed, thereby divesting certain individuals of a legal defense under a lapsed statute of limitations. See Calder v. Bull, supra, 3 U.S. (3 Dall.) at 386-87 (discussing 1795 resolution). On the basis of this state history alone, I would determine that a lapsed statute of limitations does not give rise to a protected
For the foregoing reasons, I concur.
Article first, § 10, of the Connecticut constitution provides: "All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."
Thereafter, on August 26, 1981, Peterson and a therapist from the Saint Luke Institute issued a report to Whealon indicating that Ferguson: (1) had been alcohol and drug free for the preceding two years, and had been attending weekly Alcoholics Anonymous meetings; (2) was successfully working as a grade school principal, despite the fact that he had not received his preferred assignment of working in an all boys school; and (3) had mild neuropsychological impairments that "may be the residual effect from a more severe previous brain involvement." To aid Ferguson in maintaining his "sustained sobriety and improved ministry and life," they recommended continued after care, monthly telephone contact with the Saint Luke Institute, and regular participation in Alcoholics Anonymous.
In a subsequent amended complaint, the plaintiff, inter alia, relied specifically on Bollea's failures to prevent Ferguson from being alone with the plaintiff and R behind closed doors at the rectory, and to alert Whealon or other officials of these events. The plaintiff also contended that the fact that Whealon and other officials affiliated with the defendant knew in March, 1979, that at least four boys had been sexually abused by Ferguson, "should have given [the defendant] a reasonable basis to believe that ... Ferguson's sexual attraction to young boys and his acting upon such attraction was of such a serious and dangerous psychological problem to compel [Whealon's] forbidding of ... Ferguson to have contact with minor children."
"Q. Besides alcoholism, was there anything else discussed regarding treatment, besides treatment for alcoholism ... was there treatment for anything else discussed in that conversation.
"A. No.
"Q. And what arrangements were made, do you recall?
"A. Arrangements were made for me to enter [the Saint Luke Institute] in Holliston, Massachusetts, for treatment.
"Q. And what kind of institute is [the Saint Luke Institute]?
"A. [The Saint Luke Institute] is a treatment facility for priests, nuns, and brothers who are in trouble with alcohol or drugs....
"Q. And does the name Michael Peterson ring a bell?
"A. Yes.
"Q. Who is he?
"A. He was the director.
"Q. Did you get any treatment for sexual disorders there?
"A. No.
"Q. Did [Whealon] order you to leave Northwest ...?
"A. Well, no, he told me that I needed treatment for alcoholism and that the [defendant] would provide that."
The deposition continued:
"Q. Did you ever have support group meetings at [the Saint Luke Institute]?
"A. Oh, yes.
"Q. Was sexual attraction to minors ever discussed in [these] meetings by anybody?
"A. No."
In 1991, the legislature passed an amendment to § 52-577d that extended the two year limitations period to seventeen years and struck the seven year repose period. See Public Acts 1991, No. 91-240. In Roberts v. Caton, 224 Conn. 483, 492, 619 A.2d 844 (1993), this court held that the 1991 amendment applied retroactively, thus reviving otherwise time barred claims.
Subsequently, in 2002, the legislature amended § 52-577d to the seventeen year limitations period to thirty years. Public Acts 2002, No. 02-138, § 2. The legislature explicitly stated that the 2002 amendment was "[e]ffective from passage and applicable to any cause of action arising from an incident committed prior to, on or after said date...." See Public Acts 2002, No. 02-138, § 2. For the text of the current revision of § 52-577d, see footnote 4 of this opinion.
As the defendant notes, Roberts cites Andrulat v. Brook Hollow Associates, supra, 176 Conn. at 412-13, 407 A.2d 1017, for the proposition that "changes in the statute of limitations may not retroactively bar actions already pending [but] they do govern actions brought subsequent to the effective date of the amended statute." (Internal quotation marks omitted.) Roberts v. Caton, supra, 224 Conn. at 492, 619 A.2d 844. The defendant posits that this "must be because the plaintiff has a due process or vested right in bringing an action that cannot be cut off by a retroactively applied shorter statute of limitations," and "if a plaintiff has a right to bring a cause of action that is vested within the existing statute of limitations, a defendant should have a due process or vested right to defeat a cause of action once the plaintiff is outside the existing statute." The fatal flaw in this argument is that Andrulat v. Brook Hollow Associates, supra, at 412-13, 407 A.2d 1017, does not state a constitutional due process basis for the cited proposition, but rather, relies on cases that are founded on the rule of presumed legislative intent embodied in General Statutes § 1-1(u), which provides that "[t]he passage or repeal of an act shall not affect any action then pending." (Emphasis added.)
The defendant then notes that "Roberts cites Diamond National Corp. ... for the proposition that a statutory cause of action that includes the limitations period is substantive rather than procedural, implying that the legislature could not revive such a cause once it has expired." See Roberts v. Caton, supra, 224 Conn. at 489, 619 A.2d 844. We disagree, however, with the defendant's next point, which is that this "must be because the defendant would have a due process or vested right not to have the cause revived," particularly because article first, § 10, of the Connecticut constitution "treats statutory and common-law actions alike." The defendant's reliance on Diamond National Corp. for this broad proposition is misplaced, as it fails to take into account the long-standing distinction between substantive statutory rights and procedural remedies affecting common-law rights, which also is recognized for due process purposes as a matter of federal law. See authorities cited in footnote 44 of this opinion.
Finally, in Moore, this court held that the 1985 amendment to the limitations period on paternity actions, which expanded it from three years to eighteen years, applied retroactively against the defendant, relying on the unrebutted presumption that procedural statutes apply retroactively and that it did not "appear that retroactive application of the new statute of limitations would work an injustice on the defendant." Moore v. McNamara, supra, 201 Conn. at 25, 513 A.2d 660. The defendant argues that, but for that fact that the action in Moore was already pending, "Moore might well have ruled that `the new statute of limitations would work an injustice on the defendant,' which hardly preserves the public peace, health and morals." We view the defendant's argument regarding Moore as speculation, particularly given the fact that, in that case, this court upheld a statutory amendment with revival effect.
We note that this principle of statutory construction has been codified in General Statutes § 55-3, which we "have uniformly interpreted... as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only," while "procedural or remedial statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary...." (Internal quotation marks omitted.) Investment Associates v. Summit Associates, Inc., supra, 309 Conn. at 867-68, 74 A.3d 1192; see, e.g., D'Eramo v. Smith, 273 Conn. 610, 622-23, 872 A.2d 408 (2005); see also D'Eramo v. Smith, supra, at 633, 872 A.2d 408 (Zarella, J., concurring) (relying on Goshen and stating that, "in light of our continued reliance on the principle that no statute affecting substantive rights shall be construed to have a retrospective effect in the absence of an unequivocal expression of legislative intent to the contrary, it is impermissible to construe a statute's terms by seeking guidance from the legislative history").
We note in particular our disagreement with both parties' reliance on Pratte v. Stewart, 125 Ohio St.3d 473, 929 N.E.2d 415 (2010), as that case did not concern a defendant's challenge to a statute of limitations that had the effect of reviving a time-lapsed action. See id., at 481, 929 N.E.2d 415 (rejecting plaintiff's challenge, under state constitution open courts provision, to change in statute of limitations that abrogated state supreme court decision imposing discovery tolling rule because plaintiff had no "vested right in the common-law discovery rule ... and we would offend the separation-of-powers doctrine by invalidating the legislature's decision to impose a reasonable statute of limitations for claims of childhood sexual abuse").
Finally, although there is no decision squarely on point in Maryland, that state's existing case law appears to favor the defendant's position. Compare Doe v. Roe, 419 Md. 687, 703-707, 20 A.3d 787 (2011) (The court held that the statute extending the limitations period for tort claims arising from child sexual abuse is procedural or remedial, and may be applied retroactively to cases not yet time barred, but noted that "[w]e would be faced with a different situation entirely had [the defendant's] claim been barred under the three-year limitations period.... Because we are not presented with that scenario, we express no holding regarding the applicability of [the extended limitations statute] to child sexual abuse claims barred under the three-year statute as of ... the effective date of the new statute."), with Dua v. Comcast Cable, 370 Md. 604, 633, 805 A.2d 1061 (2002) ("[t]his [c]ourt has consistently held that the Maryland [c]onstitution ordinarily precludes the [l]egislature [1] from retroactively abolishing an accrued cause of action, thereby depriving the plaintiff of a vested right, and [2] from retroactively creating a cause of action, or reviving a barred cause of action, thereby violating the vested right of the defendant"); but see Allstate Ins. Co. v. Kim, 376 Md. 276, 296-98, 829 A.2d 611 (2003) (legislature did not violate defendant's vested rights by retroactively abrogating defense of parent-child immunity).
Numerous New Jersey lower court decisions establish that Panzino limited Standard Oil Co. to contracts, insofar as they have rejected state and federal due process challenges to the legislative revival of a variety of lapsed tort actions. See, e.g., Short v. Short, 372 N.J.Super. 333, 338-39, 858 A.2d 571 (App.Div.2004) (statutory wrongful death claims arising from certain homicide crimes that have resulted in criminal conviction), cert. denied, 182 N.J. 429, 866 A.2d 985 (2005); D.J.L. v. Armour Pharmaceutical Co., 307 N.J.Super. 61, 84-85, 84 n. 20, 704 A.2d 104 (Law Div.1997) (claims against manufacturers of proprietary blood products by persons who contracted HIV or AIDS).
We observe, however, that notwithstanding Ford Motor Co. v. Moulton, supra, 511 S.W.2d 690, Tennessee state law appears unsettled on this point. Curiously, the United States Court of Appeals for the Sixth Circuit, noting a change in the membership of the Tennessee Supreme Court, and subsequent decisions quoting from the dissent in Moulton, declined to follow the state high court's decision in Moulton, concluding that the Sixth Circuit's "knowledge of the careful and progressive character of the Tennessee Supreme Court, make[s] it clear to us that the old vested rights doctrine as applied to statutes of limitations in Moulton is no longer the law in Tennessee and will be overruled when the occasion arises." Murphree v. Raybestos-Manhattan, Inc., 696 F.2d 459, 462 (6th Cir.1982). Subsequent Tennessee lower state court decisions have noted the Sixth Circuit's holding in Murphree, but continued to follow the vested rights approach dictated by the highest state court in Moulton. See, e.g., Wyatt v. A-Best Products Co., 924 S.W.2d 98, 104 (Tenn.App. 1995) ("[W]e hold that the 1979 asbestos exception cannot be applied retroactively to revive [the defendant's already time barred] cause of action. This result is not pleasant, for it means that [the defendant's] claim was barred ... before he could be rationally expected to have been aware that he suffered an injury."); see also id., at 104 n. 8 (expressly disagreeing with prediction in Murphree).
Thereafter, the Virginia constitution was amended to overrule Starnes specifically, with a provision that: "`The General Assembly's power to define the accrual date for a civil action based on an intentional tort committed by a natural person against a person who, at the time of the intentional tort, was a minor shall include the power to provide for the retroactive application of a change in the accrual date. No natural person shall have a constitutionally protected property right to bar a cause of action based on intentional torts as described herein on the ground that a change in the accrual date for the action has been applied retroactively or that a statute of limitations or statute of repose has expired.'" (Emphasis added.) Kopalchick v. Catholic Diocese of Richmond, 274 Va. 332, 337, 645 S.E.2d 439 (2007), quoting Va. Const., art. IV, § 14; see also Kopalchick v. Catholic Diocese of Richmond, supra, at 340, 645 S.E.2d 439 (concluding that diocese is not "natural person" subject to amendment, and "[w]ith respect to a defendant that is not a `natural person,' the [preexisting] state of the law, as interpreted in Starnes, continues in effect").
The defendant argues that these concerns are of particular significance in child sexual abuse cases, given the already lengthy statute of limitations and the fact that "the potential defense witnesses typically are much older. By 2008, [Ferguson] was dead, his supervising priest was dead, [Whealon] was dead, and the psychiatrist to whom [Whealon] sent [Ferguson] was dead. Medical records from 1979 through 1983 were routinely destroyed in 1996. Societal standards about dealing with sex offenders have certainly changed dramatically over the past [thirty] years. Much earlier disclosure of the misconduct surely would have served societal interests better."
In reviewing constitutional claims, we certainly defer to the legislature insofar as "a validly enacted statute carries with it a strong presumption of constitutionality, [and] ... those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt." (Internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 155, 957 A.2d 407 (2008). We also defer to the legislature, of course, whenever our state constitution specifically delegates a matter of public policy to the legislature, such as the implementation of free elementary and secondary education; see Conn. Const., art. VIII, § 1; or the establishment of lower courts. See Conn. Const., art. V, § 1.
When interpreting the state constitution, however, we owe no such deference to the legislature. See State v. McCahill, 261 Conn. 492, 504, 811 A.2d 667 (2002) ("[this court]... serve[s] as the body through which our state laws will be measured against the Connecticut constitution"), citing Pratt v. Allen, 13 Conn. 119, 132 (1839). If we were to defer to the legislature when considering the sociological and economic implications of a statute under Geisler, as the majority suggests we must, then that factor always would support the constitutionality of a statute. Thus, I disagree with the majority's suggestion that, "because of the actions of our legislature," public policy considerations under Geisler necessarily support a determination that General Statutes § 52-577d is constitutional.
