                  NOTICE                          NO. 5-04-0458
 Decision filed 08/17/06. The text of
 this decision may be changed or                     IN THE
 corrected prior to the filing of a
 Petition   for    Rehearing   or   the   APPELLATE COURT OF ILLINOIS
 disposition of the same.
                                 FIFTH DISTRICT
_________________________________________________________________________________

VIRGINIA GALLOWAY,                          ) Appeal from the
                                            ) Circuit Court of
      Plaintiff-Appellant,                  ) Madison County.
                                            )
v.                                          ) No. 04-L-85
                                            )
DIOCESE OF SPRINGFIELD IN ILLINOIS,         )
DIOCESE OF BELLEVILLE, HERMAN               )
NIEBRUGGE, and THEODORE BAUMANN,            ) Honorable
                                            ) Phillip J. Kardis,
      Defendants-Appellees.                 ) Judge, presiding.
_________________________________________________________________________________


            PRESIDING JUSTICE SPOMER delivered the opinion of the court:

            In January 2004, the plaintiff, Virginia Galloway, filed a complaint against the defendants,

Diocese of Springfield in Illinois (Springfield Diocese), Diocese of Belleville (Belleville Diocese),

and two priests, Herman Niebrugge and Theodore Baumann. The complaint alleged that a third

priest, Richard Niebrugge, had sexually abused her from the time she was 10 years old in 1967 until

his death in 1983. The complaint further alleged that the priests named as defendants became aware

of the abuse while the plaintiff was a minor and that they aided and abetted him in the abuse by

failing to report it and helping him to cover it up. The plaintiff appeals the order of the circuit court

of Madison County which dismissed her complaint on the basis that it was barred by the statute of

repose governing personal injury cases based on child sexual abuse. The statute was in effect from

January 1, 1991, until it was repealed effective January 1, 1994.

            The plaintiff raises the following issues on appeal: (1) whether the circuit court erred in

finding that the statute in effect after 1994, which repealed the statute of repose, should not be

applied retroactively, (2) whether the circuit court erred in finding that the Belleville Diocese and the

                                                       1
priests in its employ did not owe the plaintiff a fiduciary duty, and (3) whether the circuit court erred

in finding that the plaintiff failed to state a claim for civil conspiracy. For the reasons set forth

below, we affirm the order of the circuit court on the basis of the statute of repose in effect from

January 1, 1991, until January 1, 1994. Because the statute of repose bars the plaintiff's claim for

personal injury based on childhood sexual abuse, we need not reach the remaining issues raised by

the plaintiff.

          Prior to 1991, lawsuits seeking damages for childhood sexual abuse were subject to the same

statute of limitations applicable to personal injury actions. Benton v. Vonnahmen, 288 Ill. App. 3d

199, 201-02 (1997) (citing Ill. Rev. Stat. 1989, ch. 110, par. 13-202 (now 735 ILCS 5/13-202 (West

2004)); Ill. Rev. Stat. 1989, ch. 110, par. 13-211 (now see 735 ILCS 5/13-211 (West 2004))). In

September 1990, the Illinois legislature amended the Limitations Act to provide a statute of

limitations specific to claims of childhood sexual abuse. Pub. Act 86-1346, eff. January 1, 1991

(adding Ill. Rev. Stat., 1990 Supp., ch. 110, par. 13-202.2). The 1990 amendment, which became

effective on January 1, 1991, included a statute of repose providing, "[I]n no event may an action for

personal injury based on childhood sexual abuse be commenced more than 12 years after the date on

which the person abused attains the age of 18 years." Ill. Rev. Stat., 1990 Supp., ch. 110, par. 13-

202.2(b) (now see 735 ILCS 5/13-202.2 (West 2004)). In effect, then, the statute of repose barred

claims for childhood sexual abuse by anyone 30 years or older. M.E.H. v. L.H., 177 Ill. 2d 207, 214

(1997).

          In 1993, the legislature again amended the relevant provision of the Limitations Act. The

amendment eliminated the statute of repose. Pub. Act 88-127, '5, eff. January 1, 1994. Subsection

(e) of the then-new statute addressed the applicability of the amendment, providing, in relevant part,

"The changes made by this amendatory Act of 1993 shall apply only to actions commenced on or

after the effective date of this amendatory Act of 1993." 735 ILCS 5/13-202.2(e) (West Supp.

1993). The plaintiff relies on this language to argue that the amendment should apply retroactively.

                                                   2
However, the Illinois Supreme Court has rejected this argument and unequivocally ruled, in relation

to the very statute of repose at issue, that the right to invoke the statute of repose as a defense to a

cause of action cannot be taken away without offending the due process clause of the Illinois

Constitution. M.E.H., 177 Ill. 2d at 214-15; Ill. Const. 1970, art. I, '12.

        The plaintiff turned 18 on September 25, 1975, and turned 30 on September 25, 1987. Thus,

her claim was barred by the statute of repose when it went into effect on January 1, 1991.

Accordingly, the statute of repose extinguished the plaintiff's cause of action, and the defendants

have a vested right under the due process clause of the Illinois Constitution to invoke the statutory

repose period, even after the repose period was abolished by the legislature. See M.E.H., 177 Ill. 2d

at 218 ("[A] defense based on the expiration of a limitations period is a vested right protected by the

constitution and beyond legislative interference").

        The plaintiff argues that because the Illinois Supreme Court has rejected the "vested rights"

approach to retroactivity and has adopted the legislative intent analysis announced by the United

States Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct.

1483 (1994), it has effectively overruled its decision in M.E.H. See Commonwealth Edison Co. v.

Will County Collector, 196 Ill. 2d 27 (2001).           We find this argument unpersuasive.          In

Commonwealth Edison Co., a taxpayer filed a complaint against a county collector to challenge the

county's failure to apply a rate cap to property taxes to fund workers' compensation and liability

insurance. Commonwealth Edison Co., 196 Ill. 2d at 31. At issue in the case was whether certain

tax rate amendments should be applied retroactively to the tax levies, which had been adopted six

weeks before the amendments became effective. Commonwealth Edison Co., 196 Ill. 2d at 33.

        In ruling on the retroactivity of the tax rate amendments, the Illinois Supreme Court adopted

the approach to retroactivity described by the United States Supreme Court in Landgraf.

Commonwealth Edison Co., 196 Ill. 2d at 39. Under the Landgraf test, if the legislature clearly

indicated what the temporal reach of an amended statute should be, then, absent a constitutional

                                                   3
prohibition, that expression of legislative intent must be given effect. Commonwealth Edison Co.,

196 Ill. 2d at 38 (citing Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 261-62, 114 S. Ct. at 1505).

Commonwealth Edison Co. makes clear that previous decisions that define rights that are "vested"

and thus protected from the impact of statutory change by the due process clause of the Illinois

Constitution remain relevant to the extent that they address the issue of constitutionality.

Commonwealth Edison Co., 196 Ill. 2d at 47. Hence, although Commonwealth Edison Co. switches

the focus of the first step of the retroactivity analysis from "vested rights" to legislative intent, it did

not overrule the ruling in M.E.H. that taking away the right to invoke the statute of repose as a

defense to a cause of action is constitutionally prohibited. In fact, Commonwealth Edison Co.

recognizes that had it dealt with the application of an amendment which would have resurrected a

claim that had previously been barred, the result would have been different. Commonwealth Edison

Co., 196 Ill. 2d at 48-49.

        M.E.H. is still good law, and we are compelled to abide by it. Accordingly, the repeal of the

12-year repose period governing claims of childhood sexual abuse cannot, consistent with due

process, operate to revive the plaintiff's claim. See M.E.H., 177 Ill. 2d at 215. Because the

plaintiff's claim was time-barred when the 12-year repose period took effect, it remains time-barred

even after the repose period was abolished by the legislature. See M.E.H., 177 Ill. 2d at 215 ("If the

claims were time-barred under the old law, they remained time-barred even after the repose period

was abolished by the legislature").

        For the foregoing reasons, the order of the circuit court granting the defendants' motion to

dismiss is affirmed. 1




        1
            Our colleagues in the First District have recently affirmed an order dismissing a cause of

action on the same grounds. Kuch v. Catholic Bishop of Chicago, No. 1-05-1175 (May 30, 2006).


                                                     4
       Affirmed.



       DONOVAN, J., concurs.



       JUSTICE CHAPMAN, dissenting:

       Both this court and the Illinois Supreme Court have previously held that the 1993

amendment, which removed the statute of repose, did not apply retroactively. M.E.H. v. L.H., 177

Ill. 2d 207, 214-15, 685 N.E.2d 335, 339 (1997); Benton v. Vonnahmen, 288 Ill. App. 3d 199, 203

n.1, 679 N.E.2d 1270, 1273 n.1 (1997). I believe, however, that a subsequent change in the law

governing the retroactive application of statutory amendments now leads to a different result.

       In Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 794 N.E.2d 694

(2001), the supreme court addressed a discrepancy that had developed in the way Illinois courts

handled the retroactive application of statutes. The court pointed out that, prior to its decision,

Illinois courts had followed two distinct approaches to deciding the question. Under the "vested

interest" approach, courts applied the law in effect at the time of the appeal unless doing so would

interfere with a vested interest. Vested interests are those interests protected from interference by

the due process clause of the Illinois Constitution (Ill. Const. 1970, art. I, '2). Commonwealth

Edison Co., 196 Ill. 2d at 34, 749 N.E.2d at 969 (citing First of America Trust Co. v. Armstead, 171

Ill. 2d 282, 289, 664 N.E.2d 36, 39 (1996)). In following this approach, courts did not consider

whether the legislature intended the statutory change to apply retroactively. Commonwealth Edison

Co., 196 Ill. 2d at 34, 749 N.E.2d at 969 (citing Armstead, 171 Ill. 2d at 289, 664 N.E.2d at 39).

Under the "legislative intent" approach, by contrast, courts presumed that statutory changes are not

meant to apply retroactively unless the legislature clearly indicated an intent that the amendments be

so applied. Commonwealth Edison Co., 196 Ill. 2d at 34, 749 N.E.2d at 969 (relying on Armstead,

171 Ill. 2d at 288, 664 N.E.2d at 39).

                                                  5
        In order to resolve the conflict between these conflicting lines of cases, the Commonwealth

Edison Co. court formally adopted the Landgraf test. Commonwealth Edison Co., 196 Ill. 2d at 39,

749 N.E.2d at 972; Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct.

1483 (1994). Under this test, the first inquiry is whether the legislature has indicated its intent with

respect to the retroactive application of a statutory amendment. If the legislature has clearly

indicated that it intends an amendment to apply retroactively, we must give effect to that intent

absent a constitutional prohibition. Commonwealth Edison Co., 196 Ill. 2d at 38, 749 N.E.2d at 971

(citing Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 261-62, 114 S. Ct. at 1505). In determining the

intent of the legislature, we should look first to the statutory language, which should be given its

plain and ordinary meaning. If the language of the statute is clear and unambiguous, there is no need

to resort to other tools of statutory interpretation. Paris v. Feder, 179 Ill. 2d 173, 177, 688 N.E.2d

137, 139 (1997).

        It is only when the legislature has not indicated its intent that we must resort to the second

step of the Landgraf test and ask whether the retroactive application of the amendment would

interfere with a vested right already possessed by a party, increase a party's liability for past conduct,

or impose new duties with respect to previously completed transactions. Commonwealth Edison

Co., 196 Ill. 2d at 38, 749 N.E.2d at 971 (citing Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 261-62,

114 S. Ct. at 1505). The second step of this inquiry is essentially the same as the vested rights

approach to retroactivity. The retroactivity cases that predate the supreme court's decision in

Commonwealth Edison Co. are thus still relevant. However, the vested rights inquiry is now a

default rule that need only be considered in the absence of express legislative intent regarding

retroactivity. Commonwealth Edison Co., 196 Ill. 2d at 38, 749 N.E.2d at 971 (relying on Landgraf,

511 U.S. at 273, 128 L. Ed. 2d at 257, 114 S. Ct. at 1501).

        Finally, the pre-Commonwealth Edison Co. vested-rights-approach cases are also still

relevant to the consideration of whether the retroactive application of a statute implicates due

                                                    6
process concerns. The vested rights cases define the types of interests that merit constitutional

protection. See Commonwealth Edison Co., 196 Ill. 2d at 47, 749 N.E.2d at 976. Under

Commonwealth Edison Co. and Landgraf, finding that a statutory change implicates due process

concerns does not end the inquiry. Rather, we must determine whether the retroactive application of

a statutory change unreasonably infringes on the rights implicated. This determination requires us

to consider the fairness or unfairness of applying the new rule retroactively and to balance the

reasons for and against a retroactive application. Commonwealth Edison Co., 196 Ill. 2d at 47, 749

N.E.2d at 976 (relying on Moore v. Jackson Park Hospital, 95 Ill. 2d 223, 242, 447 N.E.2d 408, 416

(1983) (Ryan, C.J., specially concurring, joined by Underwood and Moran, JJ.)).

       The balancing required by Landgraf and Commonwealth Edison Co. marks a significant shift

from the approach to due process concerns under the vested rights analysis. Those courts "largely

ignored" legislative intent in concluding that statutory amendments could not be applied

retroactively. Commonwealth Edison Co., 196 Ill. 2d at 34, 749 N.E.2d at 969 (quoting Armstead,

171 Ill. 2d at 289, 664 N.E.2d at 39). Those courts found that retroactive application would run

afoul of due process because defendants have a vested right in the affirmative defense afforded them

by statutes of limitations or repose, but they did not perform the careful balancing mandated under

Landgraf and Commonwealth Edison Co. in arriving at this result. See, e.g., Henrich v. Libertyville

High School, 186 Ill. 2d 381, 404-05, 712 N.E.2d 298, 310 (1998); M.E.H., 177 Ill. 2d at 214-15,

685 N.E.2d at 339; D.P. v. M.J.O., 266 Ill. App. 3d 1029, 1036, 640 N.E.2d 1323, 1328 (1994). The

supreme court expressly rejected this approach in Commonwealth Edison Co. Commonwealth

Edison Co., 196 Ill. 2d at 47, 749 N.E.2d at 976 (explaining, "In assessing whether the application of

a new statutory amendment to an existing controversy violates due process, the question is not

simply whether the ' "rights" allegedly impaired are [labeled] "vested" or "non-vested" ' " (quoting In

re Marriage of Semmler, 107 Ill. 2d 130, 137, 481 N.E.2d 716, 720 (1985))). In shifting from this

approach to the legislative intent approach, the Commonwealth Edison Co. court noted that courts

                                                  7
have become more deferential to legislative determinations that the benefits of the retroactive

application of a statute outweigh these concerns. Commonwealth Edison Co., 196 Ill. 2d at 37-38,

749 N.E.2d at 971 (relying on Landgraf, 511 U.S. at 272-73, 128 L. Ed. 2d at 256-57, 114 S. Ct. at

1500-01). In light of this significant shift, I believe that a reconsideration of the retroactivity of the

1993 amendments under the principles announced in Commonwealth Edison Co. is warranted.

        I first would consider whether the legislature intended the 1993 amendment to apply

retroactively. The statute states, "The changes made by this amendatory Act of 1993 shall apply

only to actions commenced on or after the effective date of this amendatory Act of 1993." 735 ILCS

5/13-202.2(e) (West 2002). The instant case was filed 10 years after the 1993 amendments went into

effect. Thus, when the statutory language is given its plain and ordinary meaning, the amendment

applies absent a constitutional prohibition.

        I would next consider whether the retroactive application of the amendment would violate

due process. As previously discussed, Commonwealth Edison Co. teaches that we must balance the

reasons for and against a retroactive application and consider whether it is fair to apply the change

retroactively. In assessing the fairness of a retroactive application, relevant considerations include

(1) the legislature's motive in enacting the statutory change, (2) the period of retroactivity, and (3)

whether the parties detrimentally relied on the prior version of the law. Commonwealth Edison Co.,

196 Ill. 2d at 44-45, 749 N.E.2d at 975.

        Applying these considerations to the instant case, we note that here the legislature deleted the

statute of repose after it had been in effect for only three years. All three amendments to the statute

evince an increasing legislative recognition that often the victims of childhood sexual abuse develop

coping mechanisms that hinder the realization that their psychological injuries might be resultant of

abuse that occurred decades earlier. Our courts acknowledge that childhood sexual abuse victims

often suffer from repressed memory. See Hobert v. Covenant Children's Home, 309 Ill. App. 3d

640, 642, 723 N.E.2d 384, 386 (2000). Here, the plaintiff alleges that a multiple personality disorder

                                                    8
hindered her discovery. Amendments to the statute that make it easier to file a claim even many

years after the alleged abuse occurs reflect the legislative intent to make the procedural limits on

claims of this sort better suit the nature of the claim. That desire to fix the problems inherent in a

previous version of a statute weighs in favor of retroactive application. See Commonwealth Edison

Co., 196 Ill. 2d at 44, 749 N.E.2d at 975 (approving a legislative motive to correct previously

existing law). On the other hand, the period of retroactivity is quite long. The plaintiff's claim

became time-barred by the earlier statute 13 years before she filed the instant action. This long

period of retroactivity tends to weigh against a retroactive application. See Commonwealth Edison

Co., 196 Ill. 2d at 44-45, 749 N.E.2d at 975.

       Most significantly, I find that the defendants cannot claim to have detrimentally relied on the

statute of repose. The events at issue occurred decades before the statute of repose was enacted.

The defendants argue that they will be prejudiced by having to defend a lawsuit involving the

actions of an alleged abuser who has been deceased for more than 20 years. While this is undeniably

true, it would be equally true if the plaintiff were born in 1964, in which case she would have turned

30 after the statute of repose was deleted and her claim never would have been barred. In other

words, the difficulties inherent in defending an action such as the plaintiff's do not stem from a

retroactive application of the statute itself. The difficulties flow, rather, from the legislature's

judgment that placing this burden on defendants is an acceptable price to pay for tailoring procedural

limitations to provide victims of childhood sexual abuse a reasonable opportunity to seek redress for

the horrific harm that they have endured.

       It is also worth noting that our courts have found that the 1990 legislation that added the

statute of repose applied retroactively. M.E.H., 177 Ill. 2d at 216-17, 685 N.E.2d at 340; Phillips v.

Johnson, 231 Ill. App. 3d 890, 894-95, 599 N.E.2d 4, 7-8 (1992). The retroactive application of the

statute of repose interferes with the plaintiff's interest in pursuing a cause of action against the

defendants, just as a retroactive application of the legislation removing the statute of repose

                                                  9
interferes with the defendants' interest in an absolute defense. It does not seem logical to apply

different standards to retroactivity in the case of each of these related statutory changes. On the

whole, I find that the retroactive application of the 1993 amendments does not violate due process.

For the foregoing reasons, I respectfully dissent.




                                                 10
                                             NO. 5-04-0458

                                                IN THE

                                  APPELLATE COURT OF ILLINOIS

                                     FIFTH DISTRICT
___________________________________________________________________________________

       VIRGINIA GALLOWAY,                       ) Appeal from the
                                                ) Circuit Court of
            Plaintiff-Appellant,                ) Madison County.
                                                )
      v.                                        ) No. 04-L-85
                                                )
      DIOCESE OF SPRINGFIELD IN ILLINOIS,       )
      DIOCESE OF BELLEVILLE, HERMAN             )
      NIEBRUGGE, and THEODORE BAUMANN,          ) Honorable
                                                ) Phillip J. Kardis,
            Defendants-Appellees.               ) Judge, presiding.
___________________________________________________________________________________

Opinion Filed:    August 17, 2006
___________________________________________________________________________________

Justices:           Honorable Stephen M. Spomer, P.J.

                    Honorable James K. Donovan, J., concurs

                  Honorable Melissa A. Chapman, J., dissents
___________________________________________________________________________________

Attorneys         Rex Carr, Troy E. Walton, The Rex Carr Law Firm, LLC, 412 Missouri Avenue,
for               East St. Louis, IL 62201; Robert L. Douglas, 103 Old Indian Boundary Road,
Appellant         P.O. Drawer 8600, Robinson, IL 62454
___________________________________________________________________________________

Attorneys           Kevin T. Martin, Louis J. Phillips, Swanson, Martin & Bell, LLP, One IBM Plaza,
for                 Suite 3300, 330 N. Wabash, Chicago, IL 60611 (attorneys for Diocese of Springfield
Appellees           in Illinois)

                    David Wells, Catherine A. Schroeder, Thompson & Coburn, One U.S. Bank Plaza, St.
                    Louis, MO 63101
                    (attorneys for Diocese of Belleville)

                  Theodore J. MacDonald, Bharat Varadachari, Burroughs, Hepler, Broom, MacDonald,
                  Hebrank & True, LLP, 1010 Market Street, Suite 500, St. Louis, MO 63101 (attorneys
                  for Theodore Baumann)
___________________________________________________________________________________
