Each year the Missouri General Assembly passes a number of bills. The concern is always whether or not those bills will apply to pending litigation. This memo discusses the general rules of retroactivity in Missouri.
The Default Effective Date is August 28th
It is common for the legislature to leave the effective date out of the text of the bill. There is a separate section of law that determines the effective date of new laws, §1.130 RSMO. Under §1.130 RSMO, new laws become effective on August 28th of the year in which they were passed unless otherwise stated or a different exception applies. When the effective date is printed, which is often, it is located in the last section of the bill. The standard language reads, “The provisions of Section A of this bill shall apply to [insert the triggering activity for the new law] after August 28, 20XX.”
General Rules of Retroactivity
The general rule of statutory construction is to apply statutes prospectively unless there is clear legislative intent to do otherwise. Department of Social Services v. Villa Capri Homes, Inc., 684 S.W.2d 327, 332 (Mo. 1985). Only if the express language of the statute is retroactive or it is retroactive by unavoidable implication can the presumption be overcome. Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 34 (Mo. 1982). Missouri law also specifically states that the repeal of a law cannot affect vested rights or ongoing proceedings. §1.170 – 180 RSMO. Even where the legislature has expressly stated the new law is to have retroactive effect, it cannot violate the Missouri Constitutional prohibition on retroactive legislation.
The Missouri Constitution prohibits the retroactive application of legislation. Mo. Const. art. I, §13. Built into the Missouri Constitution is an “underlying repugnance to the retrospective application of laws.” Id. at 411. This prohibition against retrospective application of statutes has been “part of Missouri law since this State adopted its first Constitution in 1820.” Doe v. Phillips, 194 S.W.3d 833, 850 (Mo. banc 2006). A law is retrospective in operation if it takes away or impairs vested or substantial rights acquired under existing laws or imposes new obligations, duties, or disabilities with respect to past transactions. Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 769 (Mo. May 1, 2007)
The recognized exception to the prohibition is if the statute does not affect any substantive rights. Clark v. Kansas City, S. L. & C. R. Co., 219 Mo. 524, 532-533 (Mo. 1909). Therefore, the primary test for determining if a statute has retroactive effect is whether the statute is procedural or substantive in nature. The distinction is that substantive law creates rights and duties, while procedural law is the method for protecting and enforcing them. State v. Jaco, 156 S.W.3d 775, 781 (Mo. Jan. 11, 2005) A change in substantive law is one that impairs a vested right, creates a new obligation or duty, or impose a new defect on a past transaction. State ex rel. St. Louis S. F. R. Co. v. Buder, 515 S.W.2d 409, 410 (Mo. 1974).
The Missouri Courts have established that the right to bring an action, or have immunity from an action, is a substantive right that cannot be retroactively impaired or destroyed. For example, the courts have applied this test to limits on recovery for wrongful death (Buder 515 S.W.2d 409.), noneconomic damages in medical negligence claims (Klotz v. St. Anthony’s Med. Ctr., 311 S.W.3d 752 (Mo. 2010)), workers’ compensation benefits (Gervich v. Condaire, Inc., 370 S.W.3d 617 (Mo. 2012)), prejudgment interest (Good Hope Missionary Baptist Church v. St. Louis Alarm Monitoring Co., 358 S.W.3d 528 (Mo. Ct. App. 2012)), unemployment insurance benefits (Burns v. Labor & Industrial Relations Com., 845 S.W.2d 553 (Mo. 1993)), reviving a cause of action after the statute of limitation has expired (Uber v. Missouri P. R. Co., 441 S.W.2d 682 (Mo. 1969)), and others as described in the American Law Reports (98 ALR2d 1105 §3).Rights are vested when a person is able to exercise them without any interference from a private person. Blacks Law Dictionary (6th Ed.). For purposes of tort law, the right to a remedy vests when the cause of action accrues. Klotz v. St. Anthony’s Med. Ctr., 311 S.W.3d 752 (Mo. 2010). A cause of action accrues when damages are sustained and ascertainable – when the injury occurs. Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434 (Mo. 1984). Therefore, in most cases, a statute cannot impair a cause of action after the injury which is the subject of the claim occurs.