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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Catholic Bishop of Northern Alaska v. Does (08/18/2006) sp-6035
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| CATHOLIC BISHOP OF | ) |
| NORTHERN ALASKA, | ) Supreme Court No. S-11295 |
| ) | |
| Petitioner, | ) Superior Court No. |
| ) 4BE-03-177 CI | |
| v. | ) |
| ) O P I N I O N | |
| JOHN DOES 1-6, | ) |
| ) No. 6035 - August 18, 2006 | |
| Respondents. | ) |
| _______________________________ | ) |
Petition for Review
from the Superior Court of the State of
Alaska, Fourth Judicial District, Bethel,
Dale O. Curda, Judge.
Appearances: Robert B. Groseclose and Mila A.
Neubert, Cook Schuhmann & Groseclose, Inc.,
Fairbanks, for Petitioner Catholic Bishop of
Northern Alaska. James M. Gorski, Hughes
Thorsness Powell Huddleston & Brundin, PC,
Anchorage, for Petitioner Society of Jesus,
Oregon Province. Kenneth S. Roosa, Cooke,
Roosa & Valcarce, LLC, Anchorage, and John S.
Hedland, Hedland Brennan Heideman & Cooke,
Anchorage, for Respondents.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Six unnamed plaintiffs allege that they were subjected
to childhood sexual abuse by a Catholic priest in the 1950s,
1960s, and 1970s. They filed suit against the priests former
employers in 2003. The defendants filed a motion to dismiss
based on the statute of limitations. The superior court held the
motion in abeyance pending further discovery. The defendants
petitioned for review and we granted their petition in order to
clarify the law that applies to this case.
We conclude that AS 09.10.065 does not revive civil
claims that were time-barred before the effective date of the
statute, October 1, 2001. We return the case to the superior
court for further proceedings.
II. FACTS AND PROCEEDINGS
In June 2003 the six plaintiffs, as John Does, filed
suit against the Catholic Bishop of Northern Alaska (CBNA) and
the Society of Jesus, Oregon Province (Jesuits) alleging that
they suffered sexual abuse at the hands of a Jesuit priest,
Father Jules Convert. CBNA has owned various Catholic Church
facilities throughout northern and western Alaska, including
those where the plaintiffs claim to have been abused, since its
incorporation in 1952. The Society of Jesus is a Catholic order
that oversees priests throughout the world; its Oregon Province
includes Alaska. The CBNA coordinated staffing decisions,
including those involving Father Convert, with the Jesuits.
The plaintiffs allege that Father Convert sexually
molested them at church facilities. The specific allegations
vary, but generally involve Father Convert selecting plaintiffs
as altar boys, inviting them to be alone with him, and then
sexually fondling them. The plaintiffs also allege that
defendants knew of Father Converts abuse, that they actively
concealed it by moving him from parish to parish, and that they
knowingly failed to report it to parishioners or law enforcement.
CBNA and the Jesuits admit that Father Convert worked throughout
Alaska and the Yukon Delta from 1942 to 1978.
In the current version of their complaint,1 the
plaintiffs argue that the defendants are liable under various
theories. First, they maintain that the defendants are
vicariously liable for the actions of Father Convert under
respondeat superior and agency theories. Second, they allege
that the defendants are directly liable because they negligently
hired and supervised Father Convert. Finally, they argue that
the defendants entered into a fiduciary relationship with the
plaintiffs by undertaking to care for them as minors and by
holding themselves out as shepherds and leaders of the Roman
Catholic Church. Therefore, according to the plaintiffs, the
defendants failure to disclose Father Converts alleged sexual
misconduct amounted to fiduciary fraud and a breach of fiduciary
duty. The plaintiffs also argue that the defendants failure to
inform the public of Father Converts abuse tolls the statute of
limitations and estops them from invoking it as a defense.
The CBNA moved to dismiss the complaint under Alaska
Civil Rule 12(b)(6); the Jesuits later joined the motion. The
CBNA argued that the plaintiffs claims were barred by the two-
year statute of limitations for tort actions;2 although the
statute of limitations was tolled until the plaintiffs reached
the age of majority,3 the youngest plaintiff turned eighteen over
twenty years before the suit was filed. The CBNA also discussed
AS 09.10.065, which eliminates the statute of limitations for
sexual abuse claims. First, CBNA noted that AS 09.10.065 was
enacted after the plaintiffs claims were already time-barred and
asserted that the statute did not apply retroactively to revive
claims which had lapsed before its enactment. Second, it argued
that this provision was irrelevant to the plaintiffs claims
because it only applied to actual perpetrators of sexual abuse,
and not to employers or other vicariously liable parties. In
addition, the CBNA argued that the discovery rule, which tolls
the statute of limitations until a person discovers or reasonably
should have discovered the essential elements of his cause of
action, was inapplicable to the plaintiffs because they knew
facts that should have prompted them to start investigating their
claims against the defendants within the statutory period. The
CBNA also argued that the doctrine of laches bars the plaintiffs
actions, since they could have brought suit when key witnesses,
including Father Convert, were still alive and before the loss or
destruction of relevant records. In support of this argument,
the CBNA submitted the affidavit of Richard Case, a Jesuit priest
and Chancellor for the CBNA, which states that the priests and
bishops who were Father Converts contemporaries are deceased
(excepting one Jesuit superior now in failing health in
Washington) and that existing CBNA records do not mention any
sexual abuse or misconduct.
In opposing the motion to dismiss, the plaintiffs first
raised a procedural issue. Citing the lack of discovery and the
fact that the CBNAs motion to dismiss included external materials
namely the Case affidavit they argued that the court should
dismiss the motion and then allow the defendants leave to refile
it as a summary judgment motion after discovery, or that the
court allow the plaintiffs to delay filing their opposition to
the motion until a month after discovery was completed. In
addition, before the superior court heard oral arguments on the
motions, the plaintiffs submitted the affidavit of their own
expert, Patrick Wall, a former Catholic priest and expert on
canonical requirements for record keeping. This affidavit
maintained that the CBNAs search of its records had not been
sufficiently diligent and that there likely was relevant
information in church archives.
The plaintiffs also responded to the CBNAs statute of
limitations arguments, maintaining that: (1) AS 09.10.065 applied
to any civil action based on a claim of sexual abuse, including
those against employers through operation of respondeat superior
and aided-in-agency principles; and (2) their claims were saved
by the discovery rule. The plaintiffs essentially argued that
they lacked information about the defendants supervision of
Father Convert and what church officials knew or should have
known about his behavior, and therefore requested discovery so
that they could determine whether there was sufficient evidence
to allow their claims under an exception to the statute of
limitations.
Superior Court Judge Dale O. Curda held a hearing on
the motion to dismiss and issued an order holding the motion to
dismiss in abeyance until completion of discovery. In the order
Judge Curda stated that because both sides had submitted
significant outside materials, namely the Case and Wall
affidavits, he was required to convert the motion to dismiss into
a motion for summary judgment according to Civil Rule 12(b) and
our decision in Martin v. Mears.4 Concluding that conversion of
a motion to dismiss into a motion for summary judgment entitles
the parties to a reasonable opportunity to clarify the facts of
the case, Judge Curda declined to rule on the motion until the
parties completed discovery.
The CBNA and the Jesuits petitioned this court for
review, arguing that the external affidavits were not relevant to
their statute of limitations argument. They posited that since
the statute of limitations issue involved pure questions of law
which were not fact dependent it was amenable to immediate
appellate review. We granted the petition for review.
III. STANDARD OF REVIEW
We review trial court decisions regarding motions to
dismiss de novo,5 deeming all facts in the complaint true and
provable.6 As complaints must be liberally construed, grant of a
motion to dismiss is disfavored.7 To survive a motion to
dismiss, a complaint need only allege a set of facts consistent
with and appropriate to some cause of action.8 A complaint
should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts
that would entitle him or her to relief.9
We review questions of law, including the
interpretation of statutes and regulations, according to our
independent judgment.10 When construing the meaning of a statute
under this standard, we look to the meaning of the language, the
legislative history, and the purpose of the statute and adopt the
rule of law that is most persuasive in light of precedent,
reason, and policy.11
IV. DISCUSSION
The CBNA12 makes three general arguments. First, it
maintains that AS 09.10.065, which eliminates the statute of
limitations for sexual abuse claims, does not apply to the
plaintiffs because the effective date of that statute is October
1, 2001, long after the statute of limitations had run in this
case. The CBNA argues that neither AS 09.10.065 nor any of its
predecessor statutes revived time-barred claims.13 As detailed in
Part IV.A.3, we agree.
Second, the CBNA argues that AS 09.10.065 does not
apply to vicarious liability claims against non-perpetrators. It
argues the legislature intended to lift the statute of
limitations only for claims against actual abusers, and that
accordingly, the plaintiffs cannot use this statute as a basis
for their suit. Because we conclude that AS 09.10.065 does not
apply retrospectively, we need not reach this issue.
Third, the CBNA maintains that the discovery rule does
not apply to save the plaintiffs claims. Because this argument
involves factual issues the resolution of which requires further
development in the superior court, we decline to reach this
argument.
A. Alaska Statute 09.10.065 Does Not Revive Time-Barred
Civil Claims.
1. The legislative history of AS 09.10.065
Before 2001, AS 09.10.060(c) the predecessor to AS
09.10.065 provided for a three-year statute of limitations for
actions for damages against perpetrators of sexual abuse:
A person who was the victim of sexual abuse
may not maintain an action for recovery of
damages against the perpetrator of the act or
acts of sexual abuse based on the
perpetrators intentional conduct for an
injury or condition suffered as a result of
the sexual abuse unless an action is
commenced within three years. In this
subsection, sexual abuse means an act
committed by the defendant against the
plaintiff maintaining a cause of action if
the defendants conduct would have violated a
provision of AS 11.41.410-11.41.440 or
11.41.450-11.41.458 at the time it was
committed.[14]
In 2001 the legislature repealed and reenacted AS
09.10.060(c).15 For ease of reference, we refer to the repeal and
reenactment as an amendment. The amendment eliminated the three-
year statute of limitations and allowed a plaintiff to bring an
action for sexual abuse at any time:
(c) Notwithstanding other provisions in this
chapter, a person may bring an action at any
time for the following acts:
(1) felony sexual abuse of a minor;
(2) felony sexual assault . . . .
This amendment took effect on October 1, 2001.16
When it was introduced as House Bill (H.B.) 210, the
2001 amendment initially dealt only with statutes of limitations
applicable to criminal prosecutions. Representative Meyer, the
bill sponsor, explained that the bill was motivated by
developments in forensic technology, including DNA testing, which
made it possible to prove beyond a reasonable doubt that a sexual
assault had occurred even twenty years after the crime.17 The
first mention of lifting the statute of limitations for civil
claims of sexual abuse came from Representative Berkowitz, who
observed that while H.B. 210 would allow the state an unlimited
window of opportunity to prosecute sex offenders, victims of such
crimes would remain bound by existing statutes of limitation.18
At his suggestion, the house adopted language lifting the civil
statute of limitations, but at no point did the house consider
whether the language revived time-barred civil claims or had any
retroactive effect.19 Moreover, when Representative Meyer
presented the bill to the Senate Judiciary Committee, he again
focused on the criminal provisions, and the senate did not engage
in any significant discussion about the effect of the amendment
lifting the civil statute of limitations for sexual abuse.20
In 2003 the legislature again amended this provision.
The amendment differentiated between felony and misdemeanor
sexual abuse, adding a three-year statute of limitations for
misdemeanor abuse, and recodified AS 09.10.060(c) as a separate
provision, AS 09.10.065. This statute provides that:
(a) A person may bring an action at any time
for conduct that would have, at the time the
conduct occurred, violated provisions of any
of the following offenses:
(1) felony sexual abuse of a minor;
(2) felony sexual assault; or
(3) unlawful exploitation of a minor.
(b) Unless the action is commenced within
three years of the accrual of the claim for
relief, a person may not bring an action for
conduct that would have, at the time the
conduct occurred, violated the provisions of
any of the following offenses:
(1) misdemeanor sexual abuse of a minor;
(2) misdemeanor sexual assault;
(3) incest; or
(4) felony indecent exposure.
Although this amendment was enacted on June 6, 2003, it
was made retroactive to October 1, 2001 to the extent permitted
by the state and federal constitutions.21
2. The presumption against retrospective legislation
Alaska Statute 01.10.090 provides that [n]o statute is
retrospective unless expressly declared therein. This statute
creates a presumption against retrospective legislation,22 and we
have noted that [s]tatutes are not to be applied retroactively
unless the language used by the legislature indicates the
contrary.23 The CBNA maintains that this principle prevents
retroactive application of AS 09.10.065. It asserts that the
legislature intended for the 2001 amendment to take effect on
October 1, 2001, and that the plaintiffs claims are time-barred
because they lapsed well before that date.
The plaintiffs respond that the broad language of the
2001 and 2003 amendments demonstrates that the legislature
intended to revive lapsed claims. First, they argue that
language introduced in the 2001 amendment (which continues
through to the current AS 09.10.065) suggests that the
legislature intended for this provision to revive lapsed claims.
Specifically, they note that while the former provision referred
to perpetrators and set a three-year statute of limitations, the
new language allows individuals to bring an action at any time
for the following acts, and then lists various criminal offenses.
They maintain that this distinction reflects a legislative choice
to significantly broaden the reach of this statute to revive
lapsed claims.
In addition, the plaintiffs argue that it is
significant that the 2001 amendment explicitly indicated that it
did not revive certain time-barred criminal claims:
Sec. 4. The uncodified law of the State of
Alaska is amended by adding a new section to
read:
APPLICABILITY. The extension of the statute
of limitations for felony sexual assault
provided in sec. 2 of this Act [which waives
the statute of limitations for specified
criminal actions] applies
(1) to all offenses occurring on or
after the effective date
of this Act; and
(2) to all offenses occurring before the
effective date of this Act if the statute of
limitations applicable to that offense on the
day before the effective date of this Act has
not expired, including any specific time
periods for that offense under AS 12.10.020,
as that section read the day before the
effective date of this Act, and any period
when the limitations period did not run under
AS 12.10.040.[24]
The plaintiffs argue that the lack of comparable
language regarding the lifting of the statute of limitations for
civil claims suggests that the legislature intended for AS
09.10.065 to apply retroactively.
3. Alaska Statute 09.10.065 does not revive time-
barred civil claims.
The legislature inserted section four that is, it did
not attempt to revive time-barred criminal claims because the
prosecution of a lapsed criminal claim would constitute an ex
post facto law. The Senate Judiciary Committee heard from the
bills drafter, Gerald Luckhaupt, who testified that reviving time-
barred criminal provisions would violate the constitutional
prohibition against ex post facto laws.25 While the legislature
clearly displayed its intention that the criminal sections of the
2001 amendments not be given retroactive effect, it does not
follow that the legislature assumed that the civil sections of
the statute would have such effect. The legislature never
discussed whether the amendment would revive lapsed civil claims;
retroactivity was raised only in regard to criminal prosecutions.
When the legislature amended AS 09.10.065 in 2003, it
specifically limited retroactive effect on time-barred civil
claims to October 1, 2001, which was the effective date of the
2001 amendment.26 Had the legislature intended to revive time-
barred civil claims, it would have explicitly stated so. Indeed,
the legislature knows how to indicate when a statute is to be
fully retrospective and has shown its ability to do so. For
example, AS 09.55.650, enacted at the same time as AS
09.10.060(c) (the predecessor of AS 09.10.065), was promulgated
with a section specifically noting its applicability to all
actions commenced on or after February 2, 1990 regardless of when
the cause of action may have arisen.27 This provision clearly
shows legislative intent to apply AS 09.55.560 retrospectively.
Had the legislature intended AS 09.10.065 to apply
retrospectively, it would have used similar language. That the
legislature chose not to add such language, when considered along
with the legislative history and the statutory presumption
against retroactive statutes, leads us to conclude that AS
09.10.065 does not act retrospectively to revive time-barred
claims. Thus, we conclude that the plaintiffs cannot rely on
this statute as a basis for their claims.
This conclusion makes it unnecessary for us to consider
the CBNAs argument that retroactive application of this statute
would violate any rights of repose that vested once the original
statute of limitations had expired or the plaintiffs argument
that AS 09.10.065 applies to claims against vicariously liable
non-perpetrators.
B. Application of the Discovery Rule Is a Question of
Fact.
In its present posture, this case is on review from the
superior courts refusal to grant a motion to dismiss. A motion
to dismiss should not be granted if evidence may be introduced
that will sustain a grant of relief to the plaintiff.28 Under the
discovery rule, the date on which the statute of limitations
begins to run is a question of fact.29 We cannot rule out the
possibility that evidence may be introduced that will show that
the statute of limitations has not run. Therefore this case must
be remanded for further proceedings. We observe that once
sufficient discovery is conducted, the statute of limitations
affirmative defense should be resolved in advance of trial. If a
genuine issue of material fact is presented it should be resolved
in advance of trial by the superior court as a preliminary
question of fact following an appropriate evidentiary hearing.30
V. CONCLUSION
For the reasons noted above, we AFFIRM the decision of
the superior court to hold the CBNAs motion to dismiss in
abeyance pending further discovery. On remand, the superior
court should conduct further proceedings in accordance with this
opinion.
OPINION - SUPREME COURT
APPROVAL FOR PUBLICATION
CATHOLIC BISHOP OF NORTHERN ALASKA,
Petitioner,
DATE: 8/10/06
v.
CASE: S-11295
JOHN DOES 1-6,
Respondents.
_________________________________________________________________
Proofed by: /s/ R.Tromble /s/ S.Hymer
Approved by: /s/ Walter L. Carpeneti
Justice
CONCURRING OPINION(S):
Justices:
DISSENTING OPINION(S):
Justices:
COSTS AND ATTORNEY'S FEES: Each side to bear its own costs and
fees.
SPECIAL INSTRUCTIONS:
RETAIN JURISDICTION:
"sp-6035" e-mailed to C.Jones and copy put in "new_opinions" on
server on 8/10/06. rnt
Op. No. 6035, August 10, 2006.
Transcript Diskette returned to clerk's office? ___ Yes ___ No
_______________________________
1 The plaintiffs amended their complaint four times to
add additional plaintiffs and claims.
2 AS 09.10.070 provides in relevant part:
(a) Except as otherwise provided by law, a
person may not bring an action (1) for libel,
slander, assault, battery, seduction, or
false imprisonment; (2) for personal injury
or death, or injury to the rights of another
not arising on contract and not specifically
provided otherwise; (3) for taking,
detaining, or injuring personal property,
including an action for its specific
recovery; (4) upon a statute for a forfeiture
or penalty to the state; or (5) upon a
liability created by statute, other than a
penalty or forfeiture; unless the action is
commenced within two years of the accrual of
the cause of action.
3 AS 09.10.040 tolls the statue of limitations while the
plaintiff is either incompetent due to mental disability or is a
minor.
4 602 P.2d 421 (Alaska 1979). In Martin we held that
Civil Rule 12(b) required the conversion of motions to dismiss to
motions for summary judgment where affidavits or items beyond the
pleadings are presented to and not excluded by the court. Id. at
426.
5 See Nunez v. Am. Seafoods, Inc., 52 P.3d 720,
721(Alaska 2002) (grant or denial of motion to dismiss reviewed
de novo).
6 Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 253
(Alaska 2000).
7 Id.
8 Id. at 253-54 (internal quotations omitted).
9 Id. at 254.
10 Therchik v. Grant Aviation, 74 P.3d 191, 193 (Alaska
2003).
11 Marshall v. First Natl Bank of Alaska, 97 P.3d 830, 834
(Alaska 2004) (internal citations and quotations omitted).
12 The Jesuits settled with the plaintiffs after
submitting an opening brief in this appeal. In its reply brief,
the CBNA adopted at least some of the arguments made by the
Jesuits. Thus, for the purposes of this appeal we impute to the
CBNA arguments made by the Jesuits in their opening brief.
13 As explained below, AS 09.10.065, former AS
09.10.060(c), was amended in 2001 and 2003.
14 Former AS 09.10.060(c). This provision was enacted in
1990. Ch. 4, 1, SLA 1990.
15 Ch. 86, 1, SLA 2001. This chapter also repealed and
reenacted AS 12.10.010, covering time limitations on criminal
prosecutions for offenses including felony sexual abuse of a
minor.
16 Ch. 86, 1, SLA 2001.
17 4/9/01 House Judiciary Comm. Minutes.
18 Id.
19 See id.
20 5/2/01 Senate Judiciary Comm. Minutes.
21 Ch. 40, 4, SLA 2003.
22 Eastwind, Inc. v. State, 951 P.2d 844, 846 (Alaska
1997).
23 Matanuska Maid, Inc. v. State, 620 P.2d 182, 187 n.8
(Alaska 1980) (citing City & Borough of Juneau v. Commercial
Union Ins. Co., 598 P.2d 957, 958-59 (Alaska 1979); Davenport v.
McGinnis, 522 P.2d 1140, 1142 (Alaska 1974); Stephens v. Rogers
Constr. Co., 411 P.2d 205, 208 (Alaska 1966)). See also Hood v.
State, Workmens Comp. Bd., 574 P.2d 811, 813-814 (Alaska 1978)
([S]tatutes are presumed to operate prospectively and will not be
given a retroactive effect, unless by express terms or necessary
implication, it clearly appears that that was the legislative
intent.).
24 Ch. 86, 4, SLA 2001.
25 5/2/01 Senate Judiciary Comm. Minutes. Mr. Luckhaupt
appears to have advised the legislature correctly. See Stogner
v. California, 539 U.S. 607 (2003). Although Stogner was not
decided until after the 2001 amendments, it validated Mr.
Luckhaupts testimony; the Court held that the ex post facto
clause of the United States Constitution forbids resurrection of
a time-barred prosecution and observed that numerous legislators,
courts, and commentators have long believed it well settled that
the Ex Post Facto Clause forbids resurrection of a time-barred
prosecution. Id. at 616. Cf. State v. Creekpaum, 753 P.2d 1139
(Alaska 1988) (extension of statute of limitations for crime
whose original period of limitation had not yet expired was not
unconstitutional ex post facto law).
26 Ch. 40, 4, SLA 2003.
27 Ch. 4, 11, SLA 1990. (Emphasis added.) See also ch.
70, 3, SLA 1996 (This Act applies to civil actions commenced on
or after the effective date of this Act regardless of when the
cause of action may have arisen.). Section 2 of chapter 70
deleted a subsection of the former AS 09.10.060 which had
provided a three-year statute of limitations for malicious
prosecution actions.
28 Odom v. Fairbanks Meml Hosp., 999 P.2d 123, 128 (Alaska
2000).
29 Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1031 (Alaska
2002).
30 Id. at 1033 & n.28.
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