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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sands v. Green (05/04/2007) sp-6121

Sands v. Green (05/04/2007) sp-6121, 157 P3d 1130

     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

RONALD F. and LAURA SANDS, )
on behalf of their minor son, CODY ) Supreme Court No. S-11582
SANDS, )
) Superior Court No.
Appellants, ) 3AN-03-07910 CI
)
v. ) O P I N I O N
)
KATHLEEN M. and JOHN R. ) No. 6121 - May 4, 2007
GREEN, and STATE OF ALASKA, )
)
Appellees. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:    Michael  J.  Schneider,   Law
          Offices   of  Michael  J.  Schneider,   P.C.,
          Anchorage, and Brad D. De Noble, Eagle River,
          for  Appellants.  Rod R. Sisson,  Sisson  Law
          Group,   P.C.,   Anchorage,   for   Appellees
          Kathleen  and John Green.  Eric  A.  Aarseth,
          Assistant  Attorney General,  Anchorage,  and
          Gregg  D.  Renkes, Attorney General,  Juneau,
          for Appellee State of Alaska.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          FABE, Justice.
          EASTAUGH,  Justice, with whom  BRYNER,  Chief
          Justice, joins, dissenting.

I.   INTRODUCTION
          The Sandses filed a personal injury claim on behalf  of
their  minor  son,  Cody,  which  sought  recovery  for  injuries
sustained by Cody just before his eighth birthday.  The  superior
court dismissed the claim, ruling that the statute of limitations
governing  personal injury claims for children under eight  years
old  at the time of injury, codified at AS 09.10.140(c), had run.
The  Sandses  appeal, arguing that the statute of limitations  is
unconstitutional.  We agree.  Subsection .140(c)  forecloses  the
claims  of minors injured before the age of eight whenever  those
minors parents or guardians fail to file suit by the minors tenth
birthdays.  This foreclosure effectively deprives minors of their
constitutionally  protected right to access the  courts  to  seek
redress for their injuries.
II.  FACTS AND PROCEEDINGS
          The Sandses allege that their son Cody was attacked and
injured  by  the  Greens dog on July 24, 1998, approximately  one
month  prior  to  his  eighth  birthday.   The  Sandses  filed  a
complaint  on May 29, 2003, almost five years after  the  alleged
incident  and only a few months before Codys thirteenth birthday,
alleging  negligence and strict liability  on  the  part  of  the
Greens  in connection with Codys injuries.  The Greens  moved  to
dismiss  Codys  claim  on the ground that  it  was  barred  under
AS  09.10.140(c),  which  tolls the statute  of  limitations  for
personal  injury  claims for minors injured before  their  eighth
birthdays only until they reach eight years of age and thereafter
imposes  a  two-year  statute  of  limitations.   In  both  their
complaint and their opposition to the Greens motion, the  Sandses
challenged  the  constitutionality of AS  09.10.140(c).   Relying
upon  this  courts decision in Evans ex rel. Kutch v. State,1  in
which  we upheld AS 09.10.140(c) as constitutional under an equal
protection analysis, the superior court dismissed Codys claim  as
time-barred.
          The   Sandses  appeal,  arguing  that  AS  09.10.140(c)
violates  Codys  right to procedural due process because  it  has
deprived Cody of his right of access to the courts.2  The  Greens
answer  that Codys right of access to the courts is not  directly
impeded  under AS 09.10.140(c) because a child under eight  years
of  age  at  the  time of injury still has access to  the  courts
through  parents  or guardians.  On appeal, the State  of  Alaska
joined in this proceeding, defending the constitutionality of  AS
09.10.140(c).
III. DISCUSSION
     A.   Standard of Review
          Whether a statute violates the Alaska Constitution is a
question  of law, which we review de novo, adopting the  rule  of
law  that  is most persuasive in light of precedent, policy,  and
reason.3
     B.   The Statutory Scheme
          In 1997 the Alaska Legislature enacted a number of tort
reform provisions, including a modified tolling procedure for the
statute  of  limitations as applied to minors, which the  Sandses
challenge  through  this  appeal.4  Three  of  these  provisions,
codified  at  AS 09.10.070, AS 09.10.140, and AS 09.10.055,  form
the backdrop to the current dispute.
          Alaska  Statute  09.10.070 creates a  general  two-year
statute  of  limitations  for personal  injury  actions.   Alaska
Statute  09.10.140(a) exempts both minors and persons incompetent
by reason of mental illness or mental disability from the general
statute  of  limitations set forth in AS 09.10.070,  tolling  the
statute  of  limitations  during the  period  of  disability  and
allowing  two  years after the disability ceases to  bring  suit.
Read  alone,  this provision would allow plaintiffs injured  when
they  were  minors  to  bring suit through  the  two-year  period
following their eighteenth birthdays, when they reach the age  of
majority.
          At the center of this dispute is AS 09.10.140(c), which
effectively  excludes  a class of minor plaintiffs,  those  whose
injuries  occur  when they are under the age of eight,  from  the
broad  tolling  provisions  granted  to  other  minors  under  AS
09.10.140(a).  Alaska Statute 09.10.140(c) provides that [i]n  an
action  for personal injury of a person who was under the age  of
eight years at the time of the injury, the time period before the
persons  eighth birthday is not a part of the time limit  imposed
under  AS  09.10.070(a) for commencing the civil action.   As  we
have  interpreted this provision, it will toll section .070s two-
year  time  bar  as to these minors only until they  reach  their
eighth birthday.5
          The  Alaska  Legislature also modified the  statute  of
repose through its 1997 tort reform legislation.6  As codified at
AS  09.10.055, the statute of repose established a ten-year limit
for all personal injury actions, including actions brought by all
minors.   This ten-year limit does not apply, however, if,  among
other   exceptions  not  relevant  here,  a  shorter  period   of
limitations attaches.7
          Read  together, the tort reform provisions provide that
the parents or guardians of minors who sustain injuries prior  to
their  eighth  birthdays  have  only  until  those  minors  tenth
birthdays   to  file  a  personal  injury  claim.    Because   AS
09.10.140(c)   expressly  provides  for  a  shorter   period   of
limitations, the ten-year statute of repose does not apply.   For
minors  who sustain injuries when they are over the age of eight,
the  broad tolling provision of subsection .140(a) applies, which
sets  the  age  of  majority as the outer limit for  tolling  the
statute  of limitations.  Therefore, the parents or guardians  of
minors  who  sustain  injuries after their eighth  birthdays  may
bring  suit  until  the  minors turn  eighteen,  and  the  minors
themselves may bring suit for two years after they turn  eighteen
under  subsection  .140(a), or until ten years after  the  injury
occurs as limited by the statute of repose, whichever is shorter.
          In  this  case, the superior court correctly  concluded
that [h]ad the incident occurred a month later (after Cody turned
eight), he would have had ten years to file this lawsuit  .  .  .
[b]ut  because Cody was not yet eight when the incident occurred,
his parents had only two years after his eighth birthday under AS
09.10.140(c) to file the lawsuit. Because Codys parents failed to
file  suit within two years after Codys birthday, Cody  has  been
precluded  under  AS 09.10.140(c) from seeking  redress  for  his
injuries via the courts.
     C.   Subsection  .140(c) Violates the Due Process  Right  of
          Minors To Access the Courts.
          
          As an initial matter, we note that this case involves a
question  of first impression.  We are unpersuaded by the  Greens
argument  that Evans is controlling.  In Evans, we  assessed  the
constitutionality of subsection .140(c) only within  the  context
of  equal  protection.8  We did not address  the  issue  that  we
address today:  whether subsection .140(c) violates a minors  due
process  right  to  access the court system.   We  are  similarly
unpersuaded  by  the States argument that we were  aware  of  the
ramifications  of [our Evans] decision because Justice  Carpeneti
pointedly  discussed those ramifications in a  detailed  dissent.
While  the  dissent in Evans did indeed discuss the ramifications
of   subsection   .140(c)  and  argue  that  those  ramifications
constitute  a  denial  of equal protection,  it   like  the  lead
opinion  did not consider the specific issue of due process.9
          That  our  Evans decision did not reach this particular
constitutional  issue merely reinforces the wisdom  of  the  rule
that  courts  should generally avoid deciding  abstract  cases.10
Evans involved a host of abstract facial challenges divorced from
any  factual context, and we warned at the time we decided  Evans
that  future cases might require us to take a second look at  the
constitutionality of the statutory scheme.11  None of this is  to
say  that  we  overrule or disavow our decision in  Evans.   But,
given  the abstract nature of Evans, it is not surprising that  a
concrete case involving a concrete factual scenario has uncovered
a previously unanswered question.  It is this unanswered question
that we now address.
          In determining whether a government action violates due
process,  we apply a three-part balancing test.  We balance:  (1)
the  private  interest affected by the official action;  (2)  the
risk  of  an  erroneous deprivation of such interest through  the
procedures used and the probable value, if any, of additional  or
substitute   procedural  safeguards;  and  (3)  the   governments
interest,  including the fiscal and administrative  burdens  that
additional or substitute procedural requirements would entail.12
          1.   The private interest affected
          In  Bush  v.  Reid, we recognized that the due  process
clause  of the Alaska Constitution contains within it a right  of
access to the courts.13  Although this right of access  may not be
a  fundamental right . . . [it] is an important one.14  Our  case
law  has  clarified that this important right is  more  expansive
than  that  provided by the federal constitution and  applies  to
suits  for  property, but is ordinarily implicated  only  when  a
legislative enactment or governmental action erects a direct  and
insurmountable barrier in front of the courthouse doors.15  Thus,
in   Bush   we   held   that  parolees  right   of   access   was
unconstitutionally burdened by a statute barring them from filing
suit during their period of probation.16  On the other hand, in In
re  K.A.H.,  we  held that plaintiffs right  of  access  was  not
unconstitutionally burdened by a rule prohibiting  their  lawyers
from  loaning them money for living expenses since that rule  did
not prohibit plaintiffs from filing suit.17
          In  the  case at hand, we are confronted with a statute
that  bars  minors  from  accessing the courts  to  pursue  their
personal  injury claims whenever their parents or guardians  fail
to  timely  file suit.  The Greens and the State both argue  that
this  statute is not an insurmountable barrier because it  allows
minors  injured before they are eight years old to file  suit  up
until  their  tenth  birthday.  Historically,  we  have  rejected
similar arguments raised in other contexts,18 and we do so  again
today.
          Although minors possess an independent right of  access
to  the  courts,  that right can only be exercised  during  their
minority  through the diligence of others.  As the Supreme  Court
of   Arizona  has  noted:   [T]he  minor  himself  is   helpless,
particularly when under ten years of age and cannot  assert  [his
right]  unless someone else, over whom he has no control,  learns
about  it, understands it, . . . and . . . [takes] action.19   To
say,  as subsection .140(c) does, that minors can file suit until
their  tenth birthdays is really to say that parents or guardians
can  file  suit  on  behalf of minors until  those  minors  tenth
birthdays.  Therefore, whether or not minors are able to exercise
their  right  of access during the period of time mandated  under
subsection  .140(c) depends upon good fortune:20 it depends  upon
minors  having  parents or guardians willing and able  to  timely
file  suit.  While many, perhaps even most, minors have  diligent
parents  or  guardians, not all minors  are  so  lucky.   As  the
Supreme  Court of Texas has commented, [i]t is neither reasonable
nor realistic to rely upon parents, who may themselves be minors,
or  who  may be ignorant, lethargic, or lack concern, to bring  a
[lawsuit]   within  the  time  provided  by   [the   statute   of
limitations].21
          By  forfeiting  the personal injury  claims  of  minors
injured  before  the  age of eight after their  tenth  birthdays,
subsection  .140(c)  effectively closes the courthouse  doors  to
minors  unfortunate enough to have parents or guardians who  fail
to  diligently  pursue their rights.  But  matters  of  fate  and
fortune  are  not  surmountable barriers, and having  parents  or
guardians who are unwilling or unable to timely file suit is  not
something   a   minor  can  overcome.   As  we  have   previously
recognized, it would be fundamentally unfair to a minor to saddle
the  minor  with  the  consequences of  a  custodians  neglect.22
Ultimately,  then,  when subsection .140(c) forecloses  a  minors
personal  injury  claim because his or her parents  or  guardians
have  failed  to  timely  file  suit,  it  erects  a  direct  and
insurmountable  barrier to that minors right  of  access  to  the
courts.
          2.   The risk of an erroneous deprivation
          Having   determined  that  it  is  a  minors  important
interest  in accessing the courts that is at stake, we  must  now
consider what the risk is that subsection .140(c) will result  in
an  erroneous  deprivation of that interest.   Assuming,  without
deciding, that depriving minors of access to the courts  is  only
erroneous  when  those minors have a legitimate  personal  injury
claim, then subsection .140(c) will work an erroneous deprivation
whenever a legitimately injured minors parents or guardians  fail
          to timely file suit.  The exact frequency with which this will
occur cannot be determined with mathematical certainty.  However,
given  the important interest involved, we believe that the  risk
is  high  enough to cause concern.  As the Supreme Court of  Utah
concluded when confronted with a similar statute, the possibility
that  a  childs rights may be lost through a parents  or  another
caregivers neglect, indifference, or abandonment is too great for
the law to ignore.23
          3.   The States interest
          Determining  that subsection .140(c)  presents  a  high
risk of depriving minors of their important interest in accessing
the  courts does not conclude our due process balancing test;  we
must  still  weigh the States interest in maintaining  subsection
.140(c).   The State asserts that subsection .140(c) is necessary
to:  (1)  encourage self-reliance and independence by emphasizing
the  need for personal responsibility; (2) prevent the litigation
of  stale  claims;  and  (3)  reduce  the  costs  of  malpractice
insurance  for  professionals.  Although these  are,  of  course,
legitimate  interests,24 we do not believe that they are  weighty
enough to justify depriving minors of access to the courts.
          We  first note that subsection .140(c) does not  appear
to  further the States interest in encouraging self-reliance  and
independence.    The  State  contends  that  subsection   .140(c)
furthers this interest by requiring parents to maintain  a  close
watch  on  the  welfare of their children.   However,  subsection
.140(c)s  incentive  structure is not squarely  directed  towards
parents or guardians, but towards minors.  And minors simply  are
not capable, either mentally or legally, of being self-reliant or
independent  by  the  ripe old age of ten,25  and  no  amount  of
legislative activity will change that.
          Second,  we note that the tort reform statutes  do  not
pursue   universally  the  States  interest  in  preventing   the
litigation  of stale claims.  Although subsection .140(c)  allows
minors  injured before the age of eight to file suit  only  until
their  tenth  birthdays, subsection .140(a) allows  persons  with
mental  disabilities  to  file suit whenever  their  disabilities
terminate.   The State argues that we should not  read  too  much
into  this differential treatment and asserts that such treatment
is  justified  because mentally disabled persons, unlike  minors,
may not be able to communicate their injuries to others who could
act  upon  their behalf.  However, we are not convinced that  the
ability to communicate means that a minor is more capable than  a
mentally disabled person of exercising his or her right to access
the  courts.  As we have already noted, it is the diligence of  a
minors  parents or guardians that determines that minors  ability
to  access  the courts during his or her minority.  At  the  very
least,  this  differential  treatment  reveals  that  the  States
interest in preventing the litigation of stale claims is  not  so
weighty  as to counteract in all situations the private  interest
in accessing the courts.
          Finally,  although subsection .140(c)  may  reduce  the
cost  of  medical malpractice insurance, we do not  feel  that  a
possible  reduction  in  insurance  prices  justifies  completely
depriving some minors of their important right of access  to  the
          courts.
          We  therefore  conclude  that when  subsection  .140(c)
forecloses  a  minors personal injury claim because  his  or  her
parents  or guardians have failed to timely file suit it violates
that minors procedural due process right of access to the courts.
We are not alone in this determination.  The state supreme courts
of Arizona,26 Ohio,27 Missouri,28 and Texas29 have all held similar
statutory  schemes  unconstitutional  on  the  ground  that  they
violate  their states constitutional guarantee of access  to  the
courts.  We stand with these other courts today in declaring that
the State cannot lightly close the courthouse doors to minors.30
IV.  CONCLUSION
          For the foregoing reasons, we hold that AS 09.10.140(c)
violates  the due process right of minors to access  the  courts.
We therefore REVERSE the superior courts dismissal of Codys claim
as time-barred, and REMAND the case for further proceeding.
EASTAUGH,  Justice,  with  whom  BRYNER,  Chief  Justice,  joins,
dissenting.
          I  respectfully dissent from the courts holding that AS
09.10.140(c) unconstitutionally denied Cody Sands access  to  the
courts.   The  courts opinion fails to recognize that  subsection
.140(c)  is  inextricably  tied to Alaskas  ten-year  statute  of
repose,  AS  09.10.055.  Unless the statute  of  repose  is  also
unconstitutional, subsection .140(c) serves the compelling  state
purpose  of  requiring parents to file claims on their  childrens
behalf  within a reasonable period of time in cases in which  the
statute  of  repose  will bar those children from  ever  bringing
claims  on  their  own  (i.e., not  through  a  parent  or  legal
guardian).   Because the Sandses do not suggest that the  statute
of  repose  is  unconstitutional, their challenge  to  subsection
.140(c) should be rejected.
          Alaskas  statute  of  repose requires  most  claimants,
including minors, to bring claims for personal injury, death,  or
property  damage  within  ten years  of  accrual.1   Because  the
statute  of  repose intends to completely extinguish a defendants
liability upon the expiration of a certain, set period of  time,2
it  does not allow for tolling on the basis of minority or  other
legal  disabilities.   It  therefore  effectively  prevents  most
minors who are injured while they are under the age of eight from
ever  bringing  suit on their own behalf because it  extinguishes
their  claims before they reach the age of majority.  Since these
children  will never be able to bring suit on their  own  behalf,
the  legislature concluded that there is little reason to  exempt
parents seeking to bring suit on their childrens behalf from  the
normal  two-year  statute of limitations applicable  to  personal
injury suits.3  Subsection .140(c) therefore provides that minors
injured while under the age of eight are only entitled to tolling
until  their  eighth birthday.  At that time, their parents  have
the  normal  two  years in which to file suit on their  childrens
behalf before the statute of limitations bars their claims.
          We  recognized  the  purpose of subsection  .140(c)  in
Evans   ex  rel.  Kutch  v.  State.4   In  upholding  the  facial
constitutionality  of  subsection  .140(c),  we   reasoned   that
subsection  .140(c)  simply separates  those  children  for  whom
tolling the statute of limitations would preserve the ability  to
sue  as adults from those whose ability to sue on their own  will
necessarily  depend  on exceptions included  in  the  statute  of
repose.5   Because  the statute of repose would  effectively  bar
children under age eight from suing in their own names regardless
of  tolling, we held that it serves no useful purpose,  and  only
encourages  stale claims, to let their parents or guardians  wait
ten years before commencing an action.6
          Todays  decision holds that subsection .140(c) violates
due process on the theory the statute denies minors access to the
courts.   It reasons that subsection .140(c) affects an important
right  because  it  effectively closes the  courthouse  doors  to
minors  unfortunate enough to have parents or guardians who  fail
to  diligently pursue their rights.7  Although the courts opinion
acknowledges   that  the  state  has  legitimate   interests   in
preventing  the  litigation  of stale  claims,  encouraging  self
          reliance, and reducing the cost of insurance, the courts opinion
holds  that  these  interests are not weighty enough  to  justify
depriving minors of access to the courts.8
          In my view, the courts due process analysis is mistaken
because  it  fails  to  acknowledge  the  principal  purpose   of
subsection  .140(c): to restore the typical two-year  limitations
period  for personal injury claims in cases in which the  statute
of  repose will prevent a minor from ever filing suit on his  own
behalf.9   The  courts  opinion  holds  that  subsection  .140(c)
infringes   upon  minors  right  of  access  to  the  courts   by
foreclosing their claims before they reach the age of majority.10
But,  because of the statute of repose, the reality is that  such
children,  including Cody Sands, never had any hope  of  bringing
suit  on  their own behalf.  Hence, it is not subsection  .140(c)
that  potentially violates minors (and Codys) right to file  suit
on their own behalf, but the statute of repose.
          If  the  statute  of  repose were  unconstitutional,  a
plausible argument could be made that subsection .140(c) is  also
unconstitutional because the principal rationale for cutting  off
tolling  at the childs eighth birthday would be eliminated.   But
the  Sandses  have  not  challenged the constitutionally  of  the
statute  of  repose.  Indeed, we considered the constitutionality
of  the  statute  of repose in Evans and held  that  it  violated
neither  due process nor equal protection.11  Because the Sandses
do not raise the constitutionality of the statute of repose, they
effectively concede that Cody will never be able to bring suit on
his own behalf.
          Absent a challenge to the statute of repose, subsection
.140(c)  serves only to restrict the parents ability  to  sue  on
Codys  behalf.   A  proper analysis of the  constitutionality  of
subsection  .140(c) would therefore ask whether the provision  is
such  a  barrier  to Codys parents access to the courts  that  it
effectively denies Cody due process.  To put it another  way,  if
it  is  not an unconstitutional denial of due process to  require
adult  litigants to bring claims on their own behalf  within  two
years,  why  can  the state not also require  parents  to  decide
whether  to  bring claims on behalf of their children within  the
same  two-year period?  The courts decision does not explain  why
Codys  parents require what is essentially an exception from  the
two-year limitations period in order to safeguard Codys right  of
access to the courts.
          It  might  be argued that parents should be given  more
time to file suit because very young children may be incapable of
communicating with their parents well enough for the  parents  to
ascertain  whether a lawsuit should be brought.   But  subsection
.140(c)  addresses  this  objection by  tolling  the  statute  of
limitations  until  the  child reaches the  age  of  eight.   The
parents  therefore need not decide whether to bring suit  on  the
childs  behalf  until  the child is almost  ten  years  old,  and
presumably  capable of communicating any facts  relevant  to  the
parents decision to sue.
          There  is  another  problem with  the  courts  approach
today.    The  courts  reasoning   that  subsection  .140(c)   is
unconstitutional because it will not allow children to file  suit
          on their own behalf  inexorably implies that the statute of
repose  is  itself  unconstitutional.  But the validity  of  that
statute  has not been briefed here or substantively discussed  in
the couts opinion.  If indeed the effect of todays decision is to
doom  the  statute of repose, that would be a serious  collateral
consequence,  and it would require overruling our recent  holding
in  Evans.  Indeed, the courts discussion appears to be  premised
on  this  unacknowledged conclusion.  It is difficult to see  how
the courts reasoning today would allow a different result if, for
example, an eighteen-year-old Cody attempted to bring suit on his
own  after  his parents had intentionally declined or unwittingly
failed  to  do so.  Similarly, there would seem to be  little  to
distinguish  this  case  from one in which  an  injured  claimant
entitled  to tolling for a mental disability later had the  claim
extinguished  by  the  statute of repose  before  the  disability
ended.  It therefore appears that todays decision effectively but
silently  invalidates the statute of repose because that  statute
has  the  effect of barring all litigants unable to bring  claims
within the ten-year period from accessing the courts in much  the
same  manner as subsection .140(c).12  Regardless of whether  the
courts quoted conclusion is correct on the merits, it seems to me
that such a significant step should not be taken without briefing
by  the  parties  and the attorney general or, for  that  matter,
meaningful  discussion  of the statute of  repose  by  the  court
itself.
          Finally,  even  if  the court were reaching  the  right
result on the question whether Cody has the right to file suit on
his  own  behalf, I am troubled by the courts view that  [i]t  is
neither reasonable nor realistic to rely upon parents .  .  .  to
bring  a  [lawsuit] within the time provided by [the  statute  of
limitations].13   This  conflicts  with  Alaska  law  that  gives
parents  and  guardians substantial discretion  in  managing  the
financial   affairs  and  property  interests  of   their   minor
children.14   Indeed, the United States Supreme Court  has  noted
that  there  is a presumption that fit parents act  in  the  best
interest of their children:
          [T]he laws concept of the family rests  on  a
          presumption that parents possess what a child
          lacks  in  maturity, experience, and capacity
          for   judgment  required  for  making   lifes
          difficult    decisions.    More    important,
          historically  it has recognized that  natural
          bonds of affection lead parents to act in the
          best interest of their children.[15]
          
Applying  this presumption, a decision by parents not to  sue  on
behalf  of  their  child would seem to be  presumptively  in  the
childs best interest unless there were persuasive evidence to the
contrary.   The  opinions reasoning overturns  this  presumption.
The  opinion   effectively implies that the state may  not  trust
parents  to  act  in their childrens best interests  in  pursuing
personal  injury claims.16  Consequently, for what is  apparently
the  first time in our case law, the courts opinion implies  that
delegating  authority to parents to make decisions regarding  the
minor  childs  property interests could be unconstitutional.   It
therefore  renders any decision made by parents about whether  to
litigate  a  childs  personal injury claim,  and  possibly  their
decisions    about   the   childs   other   property   interests,
constitutionally suspect.
          I  would  not rule out the possibility that  subsection
.140(c) might be unconstitutional as applied in circumstances  in
which  some  sort  of  legal  disability  or  other  disadvantage
prevented  the  parents  from filing  suit  within  the  two-year
period.  The statute might also be unconstitutional as applied if
the child were unable to communicate the nature of his injury  to
his  parents.  The Sandses do not explain why they did  not  file
suit  within the two-year period provided by subsection  .140(c).
Absent  any  evidence  that  the Sandses  (including  Cody)  were
unusually  burdened  by the statute, I conclude  that  subsection
.140(c)  was  not unconstitutional as applied to  Cody,  and  not
facially unconstitutional for reasons I discussed above.
          In  short, because subsection .140(c) can only be  held
facially  unconstitutional  if the  statute  of  repose  is  also
unconstitutional,  and  because the  statute  of  repose  is  not
properly at issue in this case, I would affirm the ruling of  the
superior court.
_______________________________
     1    56 P.3d 1046 (Alaska 2002).

     2     Because  we hold that AS 09.10.140(c) violates  minors
right  to access the courts under the due process clause  of  the
Alaska Constitution, we need not reach the Sandses additional  as
applied arguments.

     3    Anderson v. State, 78 P.3d 710, 713 (Alaska 2003).

     4    AS 09.10.140; ch. 26  7-8, SLA 1997.

     5    Evans, 56 P.3d at 1065.

     6     See  ch.  26,   5, SLA 1997.  As we  noted  in  Turner
Construction Co. v. Scales, 752 P.2d 467, 469 n.2 (Alaska 1988):

          A statute of repose differs from a statute of
          limitation in that the former may bar a cause
          of  action  before  it accrues,  because  the
          statute  begins to run from a  specific  date
          unrelated to the date of injury. A  cause  of
          action   thus  precluded  is  damnum   absque
          injuria,   a  loss  without  a  remedy.    In
          contrast,  a statute of limitation begins  to
          run  when  the  plaintiff's cause  of  action
          accrues  or  is discovered.  It  operates  to
          prevent a plaintiff from sleeping on  his  or
          her rights.
          
     7     See  AS  09.10.055(b)(3),  which  states  that  [t]his
section  does  not apply if . . . a shorter period  of  time  for
bringing the action is imposed under another provision of law.

     8     56  P.3d at 1066 (concluding that subsection  .140(c)s
disparate  treatment  of  minors  under  the  age  of  eight   is
rationally   based  and  furthers  legitimate  state   interests)
(emphasis added).

     9     Id.  at  1082 (Carpeneti, J., dissenting)  (concluding
that  the  tolling provision is a deprivation of equal protection
for injured children under the age of eight).

     10     As  we  have  previously  commented,  ruling  on  the
constitutionality of a statute when the issues are not concretely
framed  increases  the  risk of erroneous decisions.   Brause  v.
State,  Dept of Health & Soc. Servs., Bureau of Vital Statistics,
21 P.3d 357, 360 (Alaska 2001) (declining to decide a controversy
because of its abstract nature).

     11     56 P.3d at 1049 (noting that [t]he result we reach in
this  opinion  might  be  different if  we  were  presented  with
challenges to the law as applied in a particular case).

     12     Varilek v. City of Houston, 104 P.3d 849, 853 (Alaska
2004)  (internal  quotations omitted) (quoting  Midgett  v.  Cook
Inlet Pre-Trial Facility, 53 P.3d 1105, 1111 (Alaska 2002)).

     13     516  P.2d  1215, 1217-20 (Alaska 1973).   Article  I,
section  7 of the Alaska Constitution provides:  No person  shall
be deprived of life, liberty, or property, without due process of
law.

     14    Patrick v. Lynden Transport, Inc., 765 P.2d 1375, 1379
(Alaska 1988).

     15    Varilek, 104 P.3d at 853-55.

     16    516 P.2d at 1221.

     17    967 P.2d 91, 96 (Alaska 1998).

     18     See, e.g., Hanson v. Kake Tribal Corp., 939 P.2d 1320
(Alaska  1997)  (holding that the tolling  provision  applies  to
claims  of  minor  stockholders whose shares are  held  by  adult
custodians);  see  also Grober v. State, Dept of  Revenue,  Child
Support Enforcement Div., ex rel C.J.W., 956 P.2d 1230, 1233  n.5
(Alaska  1998) (holding that the tolling provision applies  where
CSED can bring an action on behalf of a minor and noting that the
minor  tolling  rule  is designed to protect  children  from  the
negligence of those who could take the action for them).

     19     Barrio v. San Manuel Div. Hosp. for Magma Copper Co.,
692 P.2d 280, 286 (Ariz. 1984) (citations omitted).

     20    Id.

     21    Sax v. Votteler, 648 S.W.2d 661, 667 (Tex. 1983).

     22    Hanson, 939 P.2d at 1326.

     23    Lee v. Gaufin, 867 P.2d 572, 590 (Utah 1993).

     24    See Evans, 56 P.3d at 1053, 1066.

     25     Strahler v. St. Lukes Hosp., 706 S.W.2d  7,  10  (Mo.
1986).

     26     Barrio, 692 P.2d at 286 (concluding that the  medical
malpractice   statute  of  limitations  violated   minors   state
constitutional right to recover damages for an injury).

     27    Mominee v. Scherbarth, 503 N.E.2d 717, 723 (Ohio 1986)
(concluding  that the medical malpractice statute of  limitations
as applied to minors violated the state constitutions open-courts
guarantee).

     28    Strahler, 706 S.W.2d at 12 (concluding that the medical
malpractice statute of limitations was too severe an interference
with a minor[s] state constitutionally enumerated right of access
to the courts to be justified by the states interest in remedying
a perceived medical malpractice crisis).

     29     The  Supreme Court of Texas has actually struck  down
similar  statutory schemes on two occasions.  Weiner  v.  Wasson,
900  S.W.2d 316, 318 (Tex. 1995), rehg of cause overruled,  (July
21,  1995)  (concluding that the medical malpractice  statute  of
limitations was unconstitutional as applied to minors because  it
purport[ed]  to  cut  off [a minors] cause of  action  before  he
reache[d] majority); Sax, 648 S.W.2d at 667 (concluding that  the
medical  malpractice statute of limitations  violated  the  state
constitutions open-courts guarantee by effectively abolish[ing] a
minors  right  to bring a well-established common  law  cause  of
action without providing a reasonable alternative).

     30    We recognize that the statute of repose, codified at AS
09.10.055, will at times bar minors from accessing the courts  in
much  the  same  manner as subsection .140(c) and  may  therefore
suffer from the same constitutional infirmities. However, because
the  statute  of  repose  has not been  squarely  challenged  and
because  our  holding  today resolves the  immediate  controversy
allowing  the  Sandses to bring suit on behalf of their  son   we
have no occasion to address this issue.

1    See AS 09.10.055(a).

     2     See,  e.g., Penley v. Honda Motor Co., 31 S.W.3d  181,
184 (Tenn. 2000) (characterizing Tennessees statute of repose  as
an  absolute time limit within which actions must be brought, and
an  outer limit or ceiling superimposed upon the existing statute
[of  limitations]  (citing Cronin v. Howe, 906  S.W.2d  910,  913
(Tenn.  1995), and quoting Harrison v. Schrader, 569 S.W.2d  822,
824 (Tenn. 1978))).

     3     See  Rep. Brian S. Porter, Sectional Summary of Senate
CS  for CS for SS for HB 58 (RLS) am S, An Act Relating to  Civil
Actions  8, at 2 (Apr. 20, 1997)  (noting that tolling provisions
of  subsection  .140  are consistent with the  operation  of  the
statute  of repose); AS 09.10.070 (establishing two-year  statute
of limitations for personal injury actions).

     4     Evans  ex  rel.  Kutch v. State, 56  P.3d  1046,  1066
(Alaska 2002).

     5    Id.

     6    Id.

     7    Slip Op. at 10.

8    Slip Op. at 11.

     9     This  rationale  also explains why subsection  .140(c)
treats the disability of minority differently from the disability
of  mental  illness  or  mental  disability.   Slip  Op.  at  12.
Although  there  is some hope that a potential  litigant  with  a
mental  illness or a mental disability might be able to  bring  a
claim  before her claim were extinguished by the ten-year statute
of repose, there is virtually no hope that a child who is injured
before turning age eight will be able to bring a claim on his own
behalf before the statute of repose extinguishes his claim.  Such
a child must rely on a parent or guardian to bring a claim on his
behalf.  That presumption might be problematic if a child had  no
competent  parent or guardian, but there is no  hint  that  Codys
parents were incompetent.

     10   See Slip Op. at 10.

     11   Evans, 56 P.3d at 106769.

12   Slip Op. at 13 n.30.

     13    Slip Op. at 9-10 (quoting Sax v. Votteler, 648  S.W.2d
661, 667 (Tex. 1983)).

     14    Cf.  AS  13.26.070 (setting out powers and  duties  of
guardian of minor).

     15    Troxel  v. Granville, 530 U.S. 57, 68 (2000)  (quoting
Parkham  v.  J.R.,  442 U.S. 584, 602 (1979) (internal  quotation
marks and citations omitted)).

     16    Ironically,  the remedy this court  fashions  for  the
parents  ostensible failure to protect their childs best interest
by  bringing suit within the limitations period is not  to  allow
the  child  to bring suit in his own name upon reaching majority,
but  to  allow  the parents to bring suit after  the  statute  of
limitations has expired.  It is not clear why parents who,  under
the  courts  reasoning, are both presumptively  and  demonstrably
unable   to  protect  their  childs  interests,  are  nonetheless
trustworthy  enough  to  safeguard  the  childs  interests   once
litigation has commenced.

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