Oregon Case Law Update: Amendments Retroactive if Legislature Indicates

Oregon Case Law Update: Amendments Retroactive if Legislature Indicates

From the desk of Ryan McLellan: Typically, legislative amendments to statutes do not apply retroactively. This means that causes of action that arose prior to the amendments being adopted are typically analyzed under the prior version of the statute. However, the legislature has the option of allowing amendments to apply retroactively to still-pending causes of action. Read on to see how courts grapple with these retroactive amendments.

Claims Pointer: In this case arising out of child abuse, the Oregon Court of Appeals held that because the legislature expressly made the applicable statute retroactive, it applied to all causes of action for which a final judgment had not yet been entered, including the plaintiff’s claims. The case is a reminder of both the legislature’s ability to amend statutes retroactively, and also of the retroactivity of causes of action based on child abuse.

Doe v. Silverman, 287 Or App 247 (August 16, 2017)
When John Doe (“Doe”) was a minor, he was close friends with the son of Samuel Silverman (“Silverman”). In 1996, Silverman sexually abused Doe on several occasions while plaintiff was a guest in defendant’s home and at least once in Doe’s own home. In 1997, Silverman was convicted of committing first-degree sexual abuse against plaintiff.
In 2014, when Doe was 30 years old, he brought suit against Silverman and Silverman’s wife, alleging negligence, sexual battery, and intentional infliction of severe emotional distress. Silverman moved for summary judgment on the ground that Doe’s complaint was time barred under the applicable statute, ORS 12.117. The 1993 version of the statute, which was in effect at the time of the abuse, required Doe to commence his action prior to his 24^th birthday. Doe argued that the current version of the statute as amended in 2009 should apply, which would permit him to commence his action at any time before his 40^th birthday. The trial court granted Silverman’s motion, concluding that the appropriate statute of limitations to apply was found in the 1993 version of ORS 12.117 because it was the version in effect at the time of the events giving rise to the claim. Doe appealed.

On appeal, Doe argued that the plain text and legislative history of the 2009 version of the statute demonstrated that the current version of ORS 12.117 applied to his claims against Silverman, and therefore the trial court erred in dismissing his claims as time barred. The court examined the plain text of the statutes and the enacting legislation of the 2009 amendments. Notably, the enacting legislation indicated that the amendments to the statute applied to “all causes of action, whether arising before, on, or after the effective date” of the Act, except for causes of action in which a final judgment was entered prior to the effective date. Because Doe had not yet litigated his claim and there was no final judgment, the 2009 version of the statute applied.
Like he did before the trial court, Silverman argued that Doe could not rely on the 2009 amendments because his cause of action expired in 2007 or 2008, when Doe turned 24 years old. Silverman asserted that the legislature cannot “revive” expired causes of action unless there is an express “revival” language included in the statutory enactment. Silverman relied on a 1996 case, Owens v. Maass, in which the Oregon Supreme Court observed that generally, the ability to exercise a statutory right is “extinguished” if the statute creating the right also places a time limitation upon the ability to exercise that right and the right was not exercised within that specified time frame.

The Court of Appeals disagreed with Silverman, noting that Doe’s claims were not “extinguished” when he turned 24 years old as discussed in Owens. Rather, his causes of action were subject to the procedural time bar in ORS 12.117 (1993), which Silverman was entitled to raise as an affirmative defense. Unlike the statutorily created claim at issue in Owens, Doe’s common-law claims were not “extinguished” such that they could not be brought because the procedural time bar was waived if not affirmatively raised by the defendant. Moreover, the statute at issue in Owens did not contain an expression of the legislature’s intention to apply the expanded time frame to claims that would otherwise have been procedurally barred. In other words, the expanded time frame in ORS 12.117 (2009) applied to all causes of action based on when the cause of action arose.

In sum, the Court of Appeals refused to adopt Silverman’s argument that the legislature was required to use magic words of revival for the 2009 amendment to apply retroactively to otherwise time-barred claims. For the court, the legislature clearly intended that the new statute of limitation would apply to all causes of action, no matter when they arose, unless a judgment had already been entered. Summary judgment was therefore inappropriate. The trial court was reversed, and the case was remanded for further proceedings.

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Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.