KERWIN EAGLEMAN and NOAH C. ONE STAR, Plaintiffs,
DIOCESE OF RAPID CITY, Defendant, and RALPH EAGLEMAN, LAWRENCE FORD, ANTOINETTE (ONE STAR) MILLER, Plaintiffs and Appellants, WISCONSIN PROVINCE OF THE SOCIETY OF JESUS, DIOCESE OF RAPID CITY and ROSEBUD EDUCATIONAL SOCIETY/ST. FRANCIS MISSION, Defendants and Appellees. IDA MARSHALL, Plaintiff and Appellant,
WISCONSIN PROVINCE OF THE SOCIETY OF JESUS and ROSEBUD EDUCATIONAL SOCIETY/ST. FRANCIS MISSION, Defendants and Appellees. WENDELL D. BIG CROW, SR., Plaintiff and Appellant,
WISCONSIN PROVINCE OF THE SOCIETY OF JESUS and ROSEBUD EDUCATIONAL SOCIETY/ST. FRANCIS MISSION, Defendants and Appellees. REGINA ONE STAR, Plaintiff and Appellant,
WISCONSIN PROVINCE OF THE SOCIETY OF JESUS, BROTHER PAUL A. FREY; BROTHER CHAPMAN; and ROSEBUD EDUCATIONAL SOCIETY/ ST. FRANCIS MISSION, Defendants and Appellees. DAVID STANDING SOLDIER, Plaintiff and Appellant,
WISCONSIN PROVINCE OF THE SOCIETY OF JESUS, FATHER KEN WALLEMAN; and ROSEBUD EDUCATIONAL SOCIETY/ ST. FRANCIS MISSION, Defendants and Appellees. D.M., Plaintiff, A.L.; L.T.; H.D.G., Plaintiffs and Appellants,
DIOCESE OF RAPID CITY, Defendant, WISCONSIN PROVINCE OF THE SOCIETY OF JESUS, DIOCESE OF RAPID CITY; ROSEBUD EDUCATIONAL SOCIETY/ST. FRANCIS MISSION; SISTERS OF ST. FRANCIS, DENVER, COLORADO; HOLY ROSARY MISSION; BROTHER FRANCIS P. CHAPMAN, SISTER MARIA GORETTI; FATHER ALBERT JANKA; FATHER BERNARD FAGAN, Defendants and Appellees
Argued October 7, 2014.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE RODNEY J. STEELE, Retired Judge.
GREGORY A. YATES, MICHAEL SHUBECK of Law Offices of Gregory A. Yates, Rapid City, South Dakota, Attorneys for plaintiffs and appellants.
BARBARA ANDERSON LEWIS, THOMAS G. FRITZ of Lynn, Jackson, Shultz & Lebrun, PC, Rapid City, South Dakota, Attorneys for defendants and appellees Rosebud Education Society/St. Francis Mission.
TERRY L. PECHOTA, Rapid City, South Dakota, Attorney for defendants and appellees Wisconsin Province of the Society of Jesus.
KONENKAMP, Retired Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and WILBUR, Justices, concur. KERN, Justice, not having been a member of the Court at the time this action was assigned to the Court, did not participate.
KONENKAMP, Retired Justice.
[¶1] This appeal requires us to construe statutes of limitation affecting childhood sexual abuse claims against entities that allegedly failed to take steps to safeguard children from known or suspected molesters. Plaintiffs allege that they were sexually abused sometime during the late 1950s through the early 1970s by certain priests, brothers, nuns, and others when they were children attending St. Francis Mission School on the Rosebud Indian Reservation. The school was operated by the Wisconsin Province of the Society of Jesus and the Rosebud Educational Society/St. Francis Mission (the Societies). In granting summary judgment for the Societies, the circuit court ruled that (1) plaintiffs' suits were barred by the 2010 amendment to SDCL 26-10-25 setting an age limit for claimants to bring suit; (2) plaintiffs failed to demonstrate a material issue of fact in dispute that the Societies committed intentional criminal conduct against plaintiffs; and (3) on their personal injury claims, plaintiffs failed to establish fraudulent concealment necessary to toll the three-year statute of limitations under SDCL 15-2-14(3).
[¶2] After our decisions in Zephier v. Catholic Diocese of Sioux Falls, 2008 S.D. 56, 752 N.W.2d 658, and Bernie v. Blue Cloud Abbey, 2012 S.D. 64, 821 N.W.2d 224, plaintiffs amended their complaints for a third time, adding that the statute of limitations was tolled under SDCL 26-10-25 because the Societies " perpetrated the actual act[s] of sexual abuse" by assisting, harboring, concealing, aiding, and abetting the abuse in violation of SDCL 22-22-46 and SDCL 22-3-3. Plaintiffs also alleged that the statute of limitations under SDCL 15-2-14(3) was tolled because the Societies fraudulently concealed the sexual misconduct, which prevented plaintiffs from discovering their personal injury causes of action against the Societies.
[¶3] The Societies jointly moved for summary judgment. Relying on this Court's decision in Bernie, the circuit court concluded that the Societies could not be linked to intentional conduct, and thus the tolling provisions of SDCL 26-10-25 did not apply. See 2012 S.D. 64, ¶ 17, 821 N.W.2d at 230. Further, the court held that the 2010 amendment to SDCL 26-10-25, barring the recovery of damages for childhood sexual abuse sought by those reaching age forty, was not unconstitutional and applied retroactively to plaintiffs' claims against the Societies. Lastly, the court ruled that plaintiffs failed to present a material issue of fact in dispute to support their claim that the Societies fraudulently concealed plaintiffs' causes of action.
[¶4] On appeal, plaintiffs contend that the circuit court erred in granting summary judgment because (1) if the Legislature intended HB 1104 (the 2010 amendment to SDCL 26-10-25) to apply to plaintiffs' pending litigation, it is unconstitutional; (2) the Societies engaged in intentional criminal acts as defined by SDCL 26-10-29; (3) the Societies failed to establish that plaintiffs discovered or should have discovered their causes of action against the Societies sooner than three years before filing suit under SDCL 26-10-25;
and (4) the statute of limitations was tolled by the Societies' fraudulent concealment.
Analysis and Decision
[¶5] When we review a summary judgment, we resolve disputed facts in favor of the nonmoving party and decide whether the lower court properly granted judgment as a matter of law. Bordeaux v. Shannon Cnty. Sch., 2005 S.D. 117, ¶ 11, 707 N.W.2d 123, 126. If the nonmoving party will bear the burden of proof at trial on a dispositive issue, that party must, " by . . . affidavits, or by 'the depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); SDCL 15-6-56(e). " [S]ummary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." One Star v. Sisters of St. Francis, 2008 S.D. 55, ¶ 9, 752 N.W.2d 668, 674.
1. Constitutionality of 2010 Amendment to SDCL 26-10-25
[¶6] In 2010, the Legislature amended SDCL 26-10-25 by adding an age limit to certain sexual abuse lawsuits: " However, no person who has reached the age of forty years may recover damages from any person or entity other than the person who perpetrated the actual act of sexual abuse." 2010 S.D. Sess. Laws ch. 141, § 1 (HB 1104). All plaintiffs were over age forty when they brought suit against the Societies. But plaintiffs maintain that the amendment is unconstitutional as applied to them. They contend that HB 1104 violates the Bill of Attainder Clause because our Legislature specifically targeted them when it enacted the amendment, did so in retaliation for plaintiffs' lawful exercise of their rights, and deprived them of their previously enjoyed right to bring suit against the Societies. See U.S. Const. art. I, § 9, cl. 3; S.D. Const. art. VI, § 22.
[¶7] The United States Supreme Court has defined a bill of attainder as " a legislative act which inflicts punishment without a judicial trial." Cummings v. Missouri, 71 U.S. 277, 323, 18 L.Ed. 356 (1866). Historically, a bill of attainder " was a device often resorted to in sixteenth, seventeenth and eighteenth century England" for condemning " to death one or more specific persons" who had purportedly " attempted, or threatened to attempt, to overthrow the government." United States v. Brown, 381 U.S. 437, 441, 85 S.Ct. 1707, 1711, 14 L.Ed.2d 484 (1965). Identical to the bill of attainder was the " bill of pains and penalties," which " prescribed a penalty short of death[.]" Id. Once written into the Constitution, the Bill of Attainder Clause was used as " a general safeguard against legislative exercise of the judicial function, or more simply -- trial by legislature." Id. at 442, 85 S.Ct. at 1711-12.
[¶8] The Supreme Court rejected " a narrow historical reading (which would exclude bills of pains and penalties)" and instead interpreted the Clause " in light of the evil the Framers had sought to bar: legislative punishment, of any form or severity, of specifically designated persons or groups." Id. at 447, 85 S.Ct. at 1714. Thus, the " deprivation of any rights, civil or political, previously enjoyed," could constitute a bill of attainder depending on " the circumstances attending and the
causes of the deprivation[.]" Id. (quoting Cummings, 71 U.S. at 320). Under the most current interpretations, " a law is prohibited if it (1) applies with specificity, and (2) imposes punishment." BellSouth Corp. v. F.C.C., 162 F.3d 678, 683, 333 U.S.App.D.C. 253 (D.C. Cir. 1998); see Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 850-51, 104 S.Ct. 3348, 3354, 82 L.Ed.2d 632 (1984); Foretich v. United States, 351 F.3d 1198, 1217, 359 U.S.App.D.C. 54 (D.C. Cir. 2003); WMX Techs., Inc. v. Gasconade Cnty., 105 F.3d 1195, 1202 (8th Cir. 1997). Specificity is established when an enactment singles out individuals or easily ascertainable members of a group. See Foretich, 351 F.3d at 1217.
[¶9] Here, HB 1104 neither named plaintiffs nor singled them out. This law applies against all persons over forty years of age seeking to bring suit against nonperpetrators of child sexual abuse. It legislates with respect to certain characteristics (over forty, suits against nonperpetrators) and not with respect to a certain group. See, e.g., Brown, 381 U.S. at 455, 85 S.Ct. at 1718. Even if we assume that plaintiffs meet the specificity element, that alone will not render a law unconstitutional as a bill of attainder. " [A] law may be so specific as to create a 'legitimate class of one' without amounting to a bill of attainder unless it also satisfies the 'punishment' element of the analysis." Foretich, 351 F.3d at 1217 (quoting Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 472, 97 S.Ct. 2777, 2805, 53 L.Ed.2d 867 (1977)). The punishment inquiry implicates a three-part test: " (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, 'viewed in terms of the type and severity of burdens ...