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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
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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