Ruminations, 20 VTBJ, Fall 2020-#16

AuthorBy Paul S. Gillies, Esq.
PositionVol. 46 3 Pg. 16


Vol. 46 No. 3 Pg. 16

Vermont Bar Journal

Fall, 2020

Limitations of Law and History

By Paul S. Gillies, Esq.

Time runs out on most things. Bread has its official expiration date, followed by inedible mold. Fruit and radioactive waste decay. Life has death. Library books become overdue after two weeks, and threaten fines. Iron erodes. Faces and other body parts sag. Recess is over with the bell.

In law, there are statutes of limitations; in equity, there is laches. There comes a time when it’s too late—to prosecute most crimes or with civil or equitable claims to raise your objection to something that’s happened to you. Once the period tolls, whatever was wrong or unjust is beyond challenge. Justice must be timely sought; late-claimed rights wither and die. You’ve slept on your rights, and you may never have heard the alarm.

Limitations exist for practical reasons. If a party could bring a claim at any time, the courts would be filled with cases for which evidence would have been lost, memories polluted, stories enhanced by retellings, and resources wasted. If you could be prosecuted for a crime no matter how many years had passed since the date of the offense, there is a risk there would be more innocent people convicted, based on false testimony. Limitations play a role in redemption. They shrive our sins and crimes, our bad behavior, allowing a reset, a cleansing of history that need not come back to haunt us.

Lately, the statues of Confederate generals and of those who promoted slavery have come down hard, toppled by protesters. Columbus has been decapitated and thrown into the river. Military bases, sports teams, and even the UVM library are being renamed, as a way of condemning racism and other wrongs, as a form of expiation or atonement. These judgments altering our view of people and events know no time limit, and there is no due process, no appeal, no hearing beyond the chanting of slogans. The sins and crimes of men and women found to be lacking in lasting respect are unforgivable and swiftly punished, justified by revisionist historical thinking and the mores of the present. Time never runs out on them.

Still, there needs to be some process, even with an inquisition and sanctions that know no temporal bounds.

Statutes of Limitations

The law sets limits on how long most crimes can be prosecuted, although the Vermont legislature has decided that some crimes have no limits and others have longer terms. Those without limits include “aggravated sexual assault, aggravated sexual assault of a child, sexual assault, sexual exploitation of a minor as defined in subsection 3258(c) of [Title 13], human trafficking, aggravated human trafficking, murder, manslaughter, arson causing death, and kidnapping.”1 These crimes can be prosecuted at any time, no matter how long a time since the offenses were committed. Forty years is the limit for prosecution of lewd and lascivious conduct with or against a child, maiming, sexual exploitation of a child, and sexual abuse of a vulnerable adult.2 Eleven years is the limit for arson and first degree aggravated assault.3 Prosecutions for lewd and lascivious conduct, sexual abuse of a vulnerable adult under subsection 1379(a), grand larceny, robbery, burglary, embezzlement, forgery, bribery offenses, false claims, fraud under 33 V.S.A. § 131(d), and felony tax offenses made after six years from the commission of the crime are unactionable.4 Most all other felonies and misdemeanors have a statute of limitations of three years.5 Most civil actions have a six-year statute of limitations.6

According to William Blackstone, the purpose of statutes of limitation is “to preserve the peace of the kingdom, and to prevent those innumerable perjuries which might ensue if a man were allowed to bring an action for any purpose at any distance of time.”7

Back at the beginning, in 1779, Vermont adopted a one-year statute of limitations for most crimes, except capital crimes.8 Capital crimes had no limitations. It treated rape as a capital crime, with a type of statute of limitations. The crime could be prosecuted at any time, “provided that, in time of distress,” the victim “did make an outcry on the occasion.”9

The first civil statute of limitations came eight years later, in 1787, when Vermont first established a six-year limit to the fling of most actions. That year the 15-year period to prove adverse possession and prescriptive use was adopted. That act suspended the limitation periods for minors under the age of 21, femes covert, those who were non compos mentis or in prison or beyond the seas. The clock would restart itself for minors, after coming of age, and others if they recovered their mental capacity, were released from imprisonment, or returned from overseas.10

The general law of statutes of limitation changed little over the years, but the exceptions increased. Legislation or rules narrowed or expanded the usual period. The crime of profane cursing or swearing in 1821 had to be prosecuted within ten days of the incident or there could be no fine.[11] The Human Rights Commission must bring charges against the State within six months of the end of the conciliation period.12 The Uniform Commercial Code provides a four-year statute of limitations for suing for a breach of a contract for the sale of cattle.13 When a crime is a continuing offense, such as escape, the period of limitation of prosecution begins only upon retaking of the escapee into custody.14 Easements of necessity which are not clearly observable on the ground are abandoned after 40 years if not renewed on the record, according to the Marketable Title Act.15

The most dramatic change in the law of statutes of limitation occurred in 1989, in a pair of cases that abandoned the traditional firm deadlines set in legislation. The high court decided the commencement date for calculating the limitation of civil actions was the date of discovery, not necessarily the date of the act that had previously started the stop clock. For some years the court had resisted adopting a discovery rule, but in Lillicrap v. Martin and University of Vermont v. W.R. Grace and Company, the Supreme Court finally reversed itself. The period of limitation begins when “the plaintiff has or should have discovered both the injury and the fact that it may have been caused by the defendant’s negligence or other breach of duty.”16 The expansion of this rule to cover any civil action was a bold move on the part of the high court, although proving or arguing against discoverability is not an easy task in most cases.

There is a story behind every statute. There is a one-year statute of limitations for recovery for skiing injuries, adopted after the Supreme Court’s ruling in Sunday v. Stratton Corp. (1978), in which a novice skier was injured after an accident caused by loose snow on a novice trail. The case shocked the ski industry and threatened that large part of the Vermont economy, and the legislature’s decision to reduce the statutory period for fling complaints was a direct response to the decision.17

Attempts to expand the general statute of limitations, however, are difficult. The high court has ruled that exemption for lands belonging to the state from the six-year limit does not apply to suits claiming injury to the State’s groundwater, which are barred by the general six-year statute of limitations. This is because the statute never intended that groundwater be included as an interest in land. The statute, enacted in 1785, was adopted to provide a remedy for settlers who had improved land without legal title, who would be compensated for their investments prior to any forfeiture by the true title holder.18

Parties fight over when the period begins. The court has recently held that a cause of unjust enrichment between unmarried inhabitants does not accrue until the domestic partnership ends, because only once the relationship ends is there any loss or injury.19 Incarceration does not toll the statute unless the plaintiff is imprisoned at the time the cause of action ac-crues.20 In cases of fraudulent concealment, the fraud must occur before the cause of action accrues.21

A rule of civil procedure explains that the issue of a statute of limitations is waived if not raised as an affirmative defense.22 But if raised at trial, when court gives the parties the opportunity to file written argument on the issue, the claim has been allowed to proceed.23 Even if not raised in the pleadings, the trial court is authorized to decide sua sponte that a statute of limitations barred recovery of damages on a motor vehicle retail installment sales contract, and dismiss the case.24

This year, late in the session, the legislature passed an act providing that “[a]ll statutes of limitations or statutes of repose for commencing a civil action in Vermont that would otherwise expire during the duration of any state of emergency declared by the Governor arising from the spread of Covid-19 are tolled until 60 days after the Governor terminates the state of emergency….”25

In the civil law, there are limitations that come with the conduct of the case. Failing to answer can amount to default.26 Failing to provide evidence in discovery prevents its use at trial. There’s a one year limit on challenging a judgment for mistake, inadvertence, surprise, or excusable neglect; newly-discovered evidence that was undis-coverable in time to move for a new trial; or fraud, intrinsic or extrinsic, misrepresentation, or other misconduct by opposing par-ties.27 In the criminal law, there is the constitutional obligation for a speedy public trial.28

All the various moving parts of the law contain some restrictions, penalties, or risks associated with...

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