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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

Catholic Bishop of Northern Alaska v. Does (08/18/2006) sp-6035, 141 P3d 719

     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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