COVID-19 bill opens questions about retrospective legislation under Article I, Section 13 of the Missouri Constitution
Vol. 77, No. 6 / Nov. - Dec. 2021
Korbin W. Keller
Korbin Keller is a third-year law student at Washington University School of Law in St. Louis. A life-long Missourian, Keller grew up in O’Fallon, and graduated from Truman State University. In the summer of 2021, he worked at the law firm of Lashly & Baer, P.C. in St. Louis. Post-graduation, Korbin will serve as a law clerk for the Hon. Stephen N. Limbaugh Jr. in the Eastern District of Missouri.
Keller would like to thank the members and associates of Lashly & Baer, particularly Tim McCurdy, for their support and encouragement in writing this article. Keller would also like to thank Madison Churchill, Bob Neel, and Prof. John Drobak for their edits and suggestions.
With the COVID-19 pandemic looming overhead, Gov. Mike Parson signed Senate Bill 51 (SB 51) into law July 7, 2021.2 SB 51 alters causes of action stemming from COVID-19-related injuries3 and purports to replace other COVID-19-related causes of action with three new causes of action: COVID-19 exposure actions; COVID-19 medical liability actions; and COVID-19 products liability actions.4
In his signing statement, Parson indicated that SB 51 would protect businesses and establishments from “frivolous lawsuits”5 and that the legislation would curb COVID-19-related lawsuits by providing liability protections so long as COVID-19 exposure was not caused by willful or reckless misconduct.6 There were over 750,000 confirmed cases of COVID-19 in Missouri just one day prior to SB 51’s effective date of Aug. 28, 2021.7 Within that number is an untold amount of potential causes of action against establishments throughout the state. Parson further indicated that “SB 51 will protect those who helped protect us during some of the hardest days of the pandemic.”8 But unless those protections extend retroactively, SB 51 will provide none of the mitigation or immunity from liability for causes of action that accrued before Aug. 28.
Thus, SB 51 brings up a reoccurring issue in Missouri constitutional law: When can legislation apply retroactively to causes of action that accrued before its effective date? Due to different articulations and formulations of the test on retrospective legislation, Missouri courts have repeatedly muddied the concept.9 Litigators try to use ambiguous case law to their advantage, which only adds to the confusing state of retrospective laws.10 This article attempts to consolidate the best formulations of the related presumptions and general principles on the law of retrospective legislation; provide guidance to members of the bench and bar on the best case law on the topic; and advocate for a clean break from the often confusing formulations used previously to move toward clear and consistent application for future cases.11
Retrospective laws under the Missouri Constitution
The Missouri Constitution mandates “[t]hat no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.”12 The term ex post facto applies to criminal legislation only, while the term “retrospective” relates to laws affecting civil rights and remedies.13 Not all laws that have a retroactive effect are unconstitutionally impermissible as “retrospective in its operation.”14 Instead, “there remains a distinct and legally material difference in the meaning of these terms [retrospective and retroactive], though the terms are often misused by both bench and bar.”15 The two terms, though often interchanged, are not synonymous and carry different legal definitions.16 Therefore, when discussing retrospective legislation, it is vital lawyers and judges maintain a consistent terminology regarding retroactive and retrospective laws. A law is retroactive if it applies backward from its effective date.17 But a law is “retrospective in operation” — and therefore constitutionally impermissible — if it is retroactive and it affects substantive rights of parties.18 A law that is retrospective in operation either “ takes away or impairs vested or substantial rights acquired under existing laws or  imposes new obligations duties, or disabilities with respect to past transactions.”19 Or, put another way, a retrospective law is one that seeks to retroactively impact substantive law that creates, defines, and regulates rights giving rise to causes of action.20 The Supreme Court of Missouri has struck down several retroactive laws on the grounds that they affected substantive rights and were therefore unconstitutionally retrospective in operation.21 In general, laws that modify causes of action — including the elements that must be proved to recover — are substantive in nature and, therefore, cannot apply retroactively.22
Meanwhile, laws that are merely procedural or remedial in operation, and not substantive, may apply retroactively, even to causes of action that accrued before the law’s effective date.23 “Procedural law prescribes a method of enforcing rights or obtaining redress for their invasion . . . while procedural law is the machinery used for carrying on the suit.”24 The legislature may regulate the time and manner of bringing suits, including the procedure concerning existing causes of action.25 The legislature may also pass laws affecting the available remedy, such as to “give to a party a remedy which he did not previously possess, or modify an existing remedy, or remove an impediment in the way of legal proceedings.”26 Such procedural changes include modifications to statutes of limitations; extending the time period to bring suit is generally a procedural change,27 but only so long as the cause of action has not yet been extinguished under the old statute of limitations.28 Laws affecting an award of punitive damages are remedial and may apply retroactively because plaintiffs have no vested right in punitive damages prior to entry of judgment.29 Laws that “simply ‘prescribe a method of enforcing rights or obtaining redress for their invasion’” are procedural,30 and so the legislature may amend a statute to open up entirely new classes of potential plaintiffs.31 Laws governing the introduction of evidence are procedural and can apply retroactively.32
While on paper substantive laws and procedural/remedial laws are distinguished, there tends to be a muddled line between the two in practice. Many issues in litigation revolve around whether a particular statute in question affects substance or procedure, the answer to which is often outcome determinative.33 The case of Hess v. Chase Manhattan Bank U.S.A., N.A. is illustrative of this point.34
In Hess, the plaintiff (Hess) purchased a tract of land from Chase Manhattan Bank (Chase) in 1999.35 Chase was aware the U.S. Environmental Protection Agency was investigating the property for illegal dumping of hazardous wastes by the previous property owner.36 Chase felt it unnecessary to give notice to Hess of this investigation when he purchased the property.37 Hess then sued Chase for common law fraud and violations of the Missouri Merchandising Practices Act (“MMPA”), which was amended in 2000 to give individuals a private right of action against merchants who violate its terms in real estate sales.38 The issue of the MMPA count was whether the 2000 amendment applied to Hess’ MMPA claim for a cause of action that accrued in 1999.39 The Supreme Court of Missouri first noted that at all times the MMPA prohibited fraud in real estate transactions,40 but before the 2000 amendment only the Missouri Attorney General could sue for violations of the MMPA involving real estate.41 The 2000 amendment to the MMPA expanded the private right of action to include real estate transactions.42 Chase argued that this new amendment affected substantive rights, thus making it retrospective in operation, and that the statute gave a cause of action to an individual where one did not exist before.43 The Court decided otherwise and held that the 2000 amendment did not alter the rights, duties, or obligations owed between the parties.44 Instead, the Court held the statute was remedial in nature: “[t]he operative facts that give rise to Chase’s liability are the same both before and after the amendment: the use of a practice that [MMPA] section 407.020 declares unlawful in the sale of real estate. While under the amended statute the class of potential plaintiffs who can sue for violations of the [MMPA] is broader than it was previously, the contours of the obligations imposed on sellers of real estate by section 407.020 are unchanged. Chase was always affirmatively obliged not to employ an unlawful practice under the [MMPA] in its sale to Hess.”45
Having determined that the 2000 amendment to the MMPA could apply retroactively, the majority then turned to the additional arguments as to whether certain categories of damages were retrospective in operation in imposing new disabilities on Chase not available prior to the 2000 amendment.46 The Court concluded that the amended formula for calculating actual damages and the awarding of attorney’s fees to the individual litigant were not new disabilities imposed on a party, and so these amended categories of damages could apply retroactively.47 The Court reached a different result in reviewing the 2000 amendment’s assessment of punitive damages to the liable defendant, finding “[t]he risk of imposition of punitive damages on a seller of real estate for an alleged violation of the [MMPA] is a ‘new disability’ that cannot be applied to causes of action that accrued before the effective date of the amendment.”48 Thus, the majority determined that Hess could not be awarded punitive damages against Chase.
Hess is a helpful case on how to analyze whether a law is substantive or procedural/remedial, with both a well-reasoned majority opinion and dissent. The case demonstrates how intricate the substantive/procedural analysis can be.49 Ultimately, the majority found that the amended MMPA did not create new rights, duties, or obligations, but only affected the mechanisms to exercise those rights. Hess also reveals that it is possible for a statute to be retrospective — and constitutionally impermissible — in whole, or just in parts.50 Thus, Hess suggests the retrospective portions of a statute can, at times, be severed from the remainder of the statute, and the rest of the statute applies. Finally, Hess demonstrates how nuanced the analysis can be: The dissent believed the creation of a private right of action was logically a substantive right,51 while the majority deemed it remedial because no new legal duty was created as only the MMPA enforcement mechanism was changed.
The role of legislative intent in determining retroactivity
Beyond the issue of whether a retroactive law is substantive or merely procedural, Missouri courts and litigants are confronted with the issue of how legislative intent determines whether a retroactive law is retrospective. The earliest formulation of the role of legislative intent was that if a law was merely procedural or remedial, then it was presumed to apply retroactively, even to already-accrued causes of action.52 Under this method, the first step in analyzing retroactive legislation is to determine whether it is procedural or substantive. If it is substantive, it cannot apply retroactively. But if it is procedural, then the law will apply retroactively unless the legislature otherwise indicated.53
This method of analysis changed suddenly in the 1974 case St. Louis-San Francisco Railway Co.54 In that case, the Supreme Court of Missouri formulated that there are actually two exceptions to the constitution’s ban on retrospective legislation: “(1) where the legislature manifests a clear intent that it do so, and (2) where the statute is procedural only and does not affect any substantive right of the parties.”55 Why the Court formulated the analysis this way is unclear, particularly when the Court cites to the cases of Clark and Darrah, which propose that procedural changes are presumed to apply retroactively unless the legislature manifests a clear intent that it not do so by the clear language of the statute.56 The Court treated these two points as two independent exceptions, which is evidenced since the Court analyzed both exceptions to see if either was satisfied.57 In St. Louis-San Francisco Railway Co., the Court first analyzed whether the legislature clearly indicated that the statute at question in that case applied “retrospectively,” and concluded that the statute did not have language that indicated clear intent that the legislation apply retroactively.58 Following that, the Court went to the second exception, determining that the law was substantive, and so it could not apply retroactively by this exception.59 In the years since St. Louis-San Francisco Railway Co., many decisions of the appellate courts have dropped the “and” conjunction altogether, and treat the formulation as an “or” conjunction, supporting the two-independent-exception framework.60 Federal courts within Missouri have not been immune from this formulation either, often relying on this language in opinions and orders.61 Thus, many opinions take the time to analyze both exceptions to see if the law can apply retrospectively, either by the legislature intending the law to do so or by the law being procedural.62
The St. Louis-San Francisco Railway Co. two-exception formulation is constitutionally impermissible because
“[r]egardless of legislative intent, it should be obvious that a statute cannot supercede [sic] a constitutional provision.”63 The Supreme Court of Missouri has since continuously tried to abandon this formulation, at times eliminating the legislative-intent exception entirely.64 But despite the Court’s attempts to correct course, Missouri judges, lawyers, and litigants have experienced the confusion of St. Louis-San Francisco Railway Co. ever since with a string of inventive arguments that try to suggest the constitutional prohibition against retrospective legislation may be overcome by legislative intent.65 Instead, such a reading misspeaks the actual law.66 There is no reported decision in either state or federal courts interpreting Missouri law where a court allowed a statute to apply retrospectively based solely upon the legislative intent as embodied in the statute.67 Where there is clear language in a statute indicating legislative intent that a law apply retroactively, courts proceed to determine whether the law is procedural or substantive (and therefore, retrospective in operation) before determining whether it may apply retroactively.68
In future attempts to change the language of St. Louis-San Francisco Railway Co., the Court modified the two-exception formulation to a one-exception formulation but with two conditions: (1) the legislature must clearly intend the law to apply retroactively and (2) the law must be procedural or remedial, not substantive.69 The Court instead formulates that all statutes are generally presumed to operate prospectively unless the legislature intended they be given retroactive effect from the express language of the statute or by necessary and unavoidable implication.70 “If the presumption normally favoring prospective operation is overcome, the inquiry focuses on whether the statute falls within the proscription against retrospective laws.”71 But in intervening years, the Court reverted to the original formulation that a procedural or remedial law is presumed to apply retroactively unless the legislature expresses otherwise.72
Ordinola and the return to the presumption that procedural laws are intended to apply retroactively
It is this oldest of articulations — the original formulation that a procedural law will apply retroactively unless the legislature expresses otherwise — that is also the one most recently supported by the Supreme Court of Missouri. In Ordinola v. University Physician Associates, the Court returned to the rule that a procedural or remedial statutory provision will automatically operate retrospectively unlessthe legislature explicitly states that it is only to apply prospectively.73 While the Court in Ordinola may have only cited case law as a matter of course, the Court has — either inadvertently or intentionally — changed the method of retrospective analysis once again, and the Court’s insistence on this formulation in Ordinola may be the last time Missouri law needs to change course. Missouri practitioners should see Ordinola as the signal that it is time to get back on track when it comes to deliberating whether a law can apply retroactively or not.
Recent opinions also make clear what role legislative intent plays. While the distinction between substantive and procedural laws remains important in determining whether a law may apply retroactively, examining legislative intent should be the first step in the analysis.74 The Missouri Court of Appeals-Western District’s opinion in Desai v. Seneca Specialty Insurance Co.75 provides the clearest consolidation and clarification of Missouri’s case law on how legislative intent is supposed to be used in determining a statute’s retroactive effect.76 The court notes the various articulations of the often contradictory “presumptions and general principles” used by Missouri courts over the years and then provides a method of analyzing whether a law is retrospective or not. The court starts with summarizing Missouri law on retroactive legislation:
[W]e presume a substantive statute applies prospectively because generally, by its nature, a substantive statute create new obligations, imposes new duties, or attaches new disabilities with respect to a transaction or consideration already past, or gives to something already done a different effect from that which it had when it transpired. And we presume a procedural statute applies retroactively because generally, by its nature, when a procedural statute is applied to antecedent facts or transactions, it does not change their legal effect or impose a new or greater duty. Both of these “presumptions” yield, however, to express legislative intent to the contrary. And express legislative intent yields to the constitutional prohibition against laws retrospective in operation.77
With these ideas in mind, the court then determines that “the proper analysis should begin with whether the legislature has plainly expressed an intent to apply the statute prospectively only. If so, that express intent is controlling (regardless of whether the statute is procedural or substantive in nature), and negates the need to address article I, section 13 of the Missouri Constitution.”78 If the legislature clearly intended by express language that a law is only to apply prospectively, then that ends the matter altogether, as then the statute would not apply retroactively. But, if the law does not plainly express a legislative intent to apply the law prospectively only, then the analysis turns to “whether application of the statute to antecedent facts or transactions would be impermissibly retrospective because it would create new obligations, impose new duties, or attach new disabilities with respect to a transaction or consideration already past, or give to something already done a different effect from that which it had when it transpired.”79 This is the substantive-or-procedural statute analysis. As the Supreme Court of Missouri settled in Ordinola, if the law is procedural, then it is presumed to apply retroactively.80 If the statute is substantive, then it cannot apply retroactively because it would then be “retrospective in operation” and so barred by Article I, § 13 of the state constitution.
Retrospective effect of SB 51
Applying the retrospective analysis to SB 51, the statute only applies prospectively to causes of action that accrue after its effective date. While the statute itself lacks clear and express language that the legislature intended it only to apply prospectively, the terms of the statute clearly deal with substantive rights, and so the statute would be retrospective in operation if applied retroactively. The statute explicitly creates new causes of action relating to COVID-19, replacing any other cause of action that may exist.81 Unlike in Hess, where the amended MMPA did not modify the existing duties that were owed between parties, SB 51 amends the duty of care that is owed by an establishment to an individual – it changes the duty from refraining from ordinary negligence to a duty to refrain from “recklessness or willful misconduct.”82 Because the statute clearly affects the rights of plaintiffs, as well as the duties and obligations owed to them, then it is a substantive law and cannot apply retrospectively. Even the provisions of the statute dealing with an amended statute of limitations83 and punitive damages84 may only apply prospectively, as those revisions were applied solely to the newly created causes of action and were not applied to existing cause of action.
For years, the analysis of whether a statute is retrospective in operation, and therefore constitutionally impermissible, has been repeatedly reformulated, rearticulated, and rearranged to create a confusing body of case law. With the Court’s return to form in Ordinola, members of the bench and bar can move forward with a clear and definitive articulation for how to examine a statute’s retroactive effects, along with how to properly consider the role of legislative intent. Missouri practitioners should take note of insightful appellate decisions, particularly Rayford and Desai (W.D.) as providing a helpful consolidation of Missouri law on the subject. Going forward, practitioners should be mindful of the correct articulation of the analysis on retrospective legislation and know how to properly argue a statute’s retroactive effect before the courts.
1 Korbin Keller is a third-year law student at Washington University School of Law in St. Louis. A life-long Missourian, Keller grew up in O’Fallon, and graduated from Truman State University. In the summer of 2021, he worked at the law firm of Lashly & Baer, P.C. in St. Louis. Post-graduation, Korbin will serve as a law clerk for the Hon. Stephen N. Limbaugh Jr. in the Eastern District of Missouri.
Keller would like to thank the members and associates of Lashly & Baer, particularly Tim McCurdy, for their support and encouragement in writing this article. Keller would also like to thank Madison Churchill, Bob Neel, and Prof. John Drobak for their edits and suggestions.
2 Governor Parson Signs SB 51: Providing Health Care Providers, Others Protections Against Covid-19 Related Civil Action, Missouri Governor (July 7, 2021), https://governor.mo.gov/press-releases/archive/governor-parson-signs-sb-51-providing-health-care-providers-others [hereinafter Signing Statement]. During the 2021 Regular Legislative Session, this author was paid to ghostwrite several opinion pieces advocating for SB 51’s passage. The author did not personally lobby for or against SB 51.
3 Senate Bill 51, 101st Gen. Assemb., 1st Reg. Sess. (Mo. 2021) (Truly Agreed and Finally Passed) [hereinafter SB 51]. In this article, specific provisions of SB 51 will be referred to by its proposed Revised Statutes section numbers for specificity.
4 See SB 51 § 537 .1000(4)–(6) for statutory definitions of these causes of action. The full text is omitted here for brevity.
5 Signing Statement, supra note 2.
6 Id. “[H]ealth care providers, manufacturers, businesses, churches, schools, and other entities quickly altered their operations to protect public health and accommodate the needs of Missourians, and they should not be penalized for their efforts . . . this legislation [will] prevent these unnecessary and frivolous lawsuits.”
7 United States COVID-19 Cases and Deaths by State over Time, CDC (updated Oct. 1, 2021), https://data.cdc.gov/Case-Surveillance/United-States-COVID-19-Cases-and-Deaths-by-State-o/9mfq-cb36/data (data set created by the CDC).
8 Signing Statement, supra note 2.
9 Mo. Real Estate Comm’n v. Rayford, 307 S.W.3d 686, 697 (Mo. App. W.D. 2010) (“there are oft repeated passages in many of our State’s reported decisions which have the effect of confusing what is actually a very simple concept”).
10 See id. (noting that counsel’s error “is not without colorable support” in Missouri case law); see also Doe v. Roman Cath. Diocese of Jefferson City, 862 S.W.2d 338, 341 (Mo. banc 1993) (quoting Dep’t of Social Servs. v. Villa Capri Homes, Inc., 684 S.W.2d 327 (Mo. banc 1985)) (noting instances where the Court “clarified” the formulation on the test for retrospective legislation”); Desai v. Seneca Specialty Ins. Co., WD 81220, 2018 WL 3232697, at *4 (Mo. App. W.D. July 3, 2018) [hereinafter Desai (W.D.)] (“our courts have announced related presumptions and general principles which are intended to provide guidance, but which can create unnecessary confusion when applied to misdirect attention from the simply stated constitutional prohibition”).
11 As will be discussed infra, the recently decided opinion in Ordinola v. Univ. Physician Assocs., 625 S.W.3d 445 (Mo. 2021), provides the ideal opportunity to make a fresh start on the law of retrospective legislation, and to move forward with a clear and correct formulation of the rule.
12 Missouri Const., art. 1 § 13; see also State ex rel. St. Louis-S.F. Ry. Co. v. Buder, 515 S.W.2d 409, 411 (Mo. banc 1974) (“It is best to keep in mind that the underlying repugnance to the retrospective application of laws is that an act or transaction, to which certain legal effects were ascribed at the time they transpired, should not, without cogent reasons, thereafter be subject to a different set of effects which alter the rights and liabilities of the parties thereto.”).
13 Rayford, 307 S.W.3d at 690.
15 Id. (citing State v. Thomaston, 726 S.W.2d 448, 459 (Mo. App. W.D. 1987)).
16 Id. at 690.
17 Id. (quoting Thomaston, 726 S.W.2d at 459–60).
18 See Hess v. Chase Manhattan Bank, U.S.A., N.A., 220 S.W.3d 758, 769 (Mo. banc 2007).
19 Hess, 220 S.W.3d at 769 (Mo. banc 2007).
20 See Wilkes v. Mo. Highway & Transp. Comm’n, 762 S.W.2d 27, 28 (Mo. banc 1988); see also Hess, 220 S.W.3d at 769.
21 One such law tried to change caps on actual damages to already accrued causes of action but was struck down as constitutionally impermissible because it impaired already accrued rights. Klotz v. St. Anthony’s Med. Ctr., 311 S.W.3d 752 (Mo. banc 2010); Similar to Klotz, a law that changed caps on total damages — which included a new cap for actual damages and a new cap for punitive damages — was retrospective because it capped total damages, which included the actual damages, and the court refused to treat the cap as two separate caps (one for actual damages and one for punitive damages). Dixson v. Mo. Dept. of Corrs., 586 S.W.3d 816 (Mo. App. W.D. 2019); A law that purported to change the priority structure for certain lien holders was retrospective in operation because it impaired the vested rights of existing lienholders. Gershman Inv. Corp. v. Duckett Creek Sewer Dist., 851 S.W.2d 765, 767–68 (Mo. App. E.D. 1993); A law could not apply to defendants for whom the statute of limitations was already tolled because the defendants had a vested right in being free from suit. Doe, 862 S.W.2d at 341–42; A law that affects the burden of proof of what a plaintiff must prove to recover in an action is likewise substantive. Brown v. Therapy Mgmt. Corp., 4:17-CV-01247-JAR, 2019 WL 2053846, at *2–3 (E.D. Mo. May 9, 2019) (quoting Hurley v. Vendtech-SGI, LLC, No. 16-01222-CV-W-ODS, 2018 WL 736057, at *4 (W.D. Mo. Feb. 6, 2018)).
22 See Bram v. AT&T Mobility Servs., LLC, 564 S.W.3d 787, 795 (Mo. App. W.D. 2018) (holding that an amendment to Missouri Human Rights Act could not apply retroactively because it changed which causes of action were actionable under Missouri law, which would make it retrospective in operation).
23 Wilkes, 762 S.W.2d at 28.
24 Id. (citing Shepherd v. Consumers Coop. Assoc., 384 S.W.2d 635, 640 (Mo. banc 1964)).
25 Darrah v. Foster, 355 S.W.2d 24, 29 (Mo. 1962).
26 Id. (quoting 11 Am. Jur., Constitutional Law, § 382, p.1212) (internal quotation marks omitted).
27 Cf. Doe v. Roman Cath. Diocese of Jefferson City, 862 S.W.2d 338, 341 (Mo. banc 1993) (suggesting laws that extend the statute of limitation for unexpired causes of action is a procedural change, not a substantive one).
28 See Doe, 862 S.W.2d at 341–42 and discussion of Doe, supra note 21.
29 Vaughan v. Taft Broad. Co., 708 S.W.2d 656, 660 (Mo. banc 1986) (“Punitive damages are never allowable as a matter of right and their award lies wholly within the discretion of the trier of fact.”); see also id. (quoting Smith v. Hill, 147 N.E.2d 321, 327 (Ill. 1958)) (“to deny [punitive damages] cannot be said to deny any constitutional right or to encroach upon any judicial function, or to violate any constitutional guaranty of separation of powers”). But see Dixson, 586 S.W.3d at 826 (Mo. App. W.D. 2019) (holding that a law that capped total damages, including punitive and actual damages, was substantive and not remedial).
30 Hess, 220 S.W.3d at 770 (quoting Wilkes, 762 S.W.2d at 28).
31 Id. at 769–70 (holding that an amendment to the Missouri Merchandising Protection Act that extended private right of action to private individuals was a procedural change because it did not change the legal duties owed by the bank to the plaintiffs but provided the available remedy to plaintiffs).
32 See State v. Belk, 759 S.W.2d 257 (Mo. App. E.D. 1988). In Belk, the defendant argued that a statute — which became effective after the crime had been committed — allowing prior inconsistent statements of a witness to be used as substantive evidence was retrospective in its operation. The appellate court disagreed. “The statute here is a matter of procedure. It provides what can be utilized as evidence in a trial. It does not change the ingredients of the crime nor the ultimate facts necessary to prove the crime nor change the consequences of defendant’s acts.” Id. at 258.
33 See, e.g., Doe, 862 S.W.2d at 341–42 (discussing how an extended statute of limitations was unconstitutionally retrospective as applied to a cause of action that was already extinguished under prior statute of limitations, as the defendant had acquired a vested right to be free from suit at that point).
34 220 S.W.3d 758 (Mo. banc 2007); see also id. at 763 n.1 (explaining the Court’s vote counts on the various issues “[f]or the assistance of the reader.”).
35 Id. at 762–65.
36 Id. at 763.
39 Id. at 768.
40 Id. at 768. The Court opined that “Section 407.020 has at all times proscribed deceptive or fraudulent acts in connection with the sale of ‘merchandise,’ sec. 407.020, RSMo 2000, which the MPA expressly defines to include real estate. Sec. 407.010(4).” Id.
41 Id. (“At all relevant times, both the attorney general and private parties could sue a seller for alleged use of deceptive practices in the sale of goods and services . . . . Before 2000, though, only the attorney general could bring enforcement actions for deceptive practices in the sale of real estate.”).
42 Id. at 768–69.
43 Id. at 769.
45 Id. But see id. at 775–77 (Limbaugh, J., concurring in part and dissenting in part) (arguing that the amended MMPA created a substantive right and could not apply retrospectively).
46 The Court analyzed each type of remedy separately to see whether the distinct category could apply retroactively or only prospectively. Id. at 770 n.8 (“This Court rejects Chase’s corollary argument that if the right to recover any one of these types of damages can only be given prospective effect, then the entire cause of action can be given only a prospective effect even if the remainder of the statute is procedural or remedial in nature.”).
47 Id. at 770–71.
48 Id. at 771. But see id. at 774–775 (Teitelman, J., concurring in part and dissenting in part) (arguing that the punitive damages award was remedial, not substantive, and so should apply in Hess’s case).
49 See id. at 763 n.1.
50 Id. at 771, 774–775 (Teitelman, J., concurring in part and dissenting in part).
51 Id. at 775–77 (Limbaugh, J., concurring in part and dissenting in part). Limbaugh argued that the MMPA amendment affected substantive rights and so it was retrospective in operation: “before the amendment, if not after, sellers had a substantive right not to be subjected to such a private cause of action.” Id. at 776. And that “the very right of a party to bring a cause of action is no less substantive than the substantive rights the party seeks to enforce, and it is no less an integral part of the cause of action.” Id. at 776.
52 See Clark v. Kansas City, St. L. & C.R. Co., 118 S.W. 40, 43 (Mo. 1909). “Where a new statute deals with procedure only, prima facie it applies to all actions — those which have accrued or are pending and future actions . . . . If, before final decision, a new law as to procedure is enacted and goes into effect, it must from that time govern and regulate the proceedings.” Id. (emphasis added).
53 Id.; see also Darrah v. Foster, 355 S.W.2d 24, 29 (Mo. 1962) (“A statute dealing only with procedure or the remedy applies to all actions falling within its terms whether commenced before or after the enactment unless a contrary intention is expressed.”).
54 515 S.W.2d 409 (Mo. banc 1974).
55 Id. at 410 (citing Clark, 118 S.W. 40; Darrah, 355 S.W.2d 24).
56 See supra notes 52–53.
57 See id. at 410.
59 Id. at 410–11.
60 See e.g., Bram v. AT&T Mobility Services, LLC, 564 S.W.3d 787, 795 (Mo. App. W.D. 2018) (“there are two exceptions: (1) if the legislature clearly expresses an intent that the amendment be given retroactive application . . . or (2) the statute is merely procedural or remedial, rather than substantive”) (emphasis added); Ball-Sawyers v. Blue Spring School Dist., 286 S.W.3d 247, 257 (Mo. App. W.D. 2009) (citing Lawson v. Ford Motor Co., 217 S.W.3d 345, 349 (Mo. App. E.D. 2007)) (“prospective application of a statute is presumed unless the legislature demonstrates a clear intent to apply the amended statute retroactively, or if the statute is procedural in nature”) (emphasis added); Dalba v. YMCA of Greater St. Louis, 69 S.W.3d 137 (Mo. App. E.D. 2002) (citing Holden v. Antom, Inc., 930 S.W.2d 526, 528 (Mo. App. E.D. 1996)) (“a statute may be applied retroactively if: (1) the legislature clearly expresses its intent that it be given retroactive application . . . or (2) the statute is merely procedural or remedial, not substantive, in its operation”) (emphasis added).
61 See, e.g., Brown v. Therapy Mgmt. Corp., 4:17-CV-01247-JAR, 2019 WL 2053846 (E.D. Mo. May 9, 2019) (using the two-independent-exception framework); Gilberg v. Associated Wholesale Grocers, Inc., 6:15-CV-03365-MDH, 2018 WL 3614982 (W.D. Mo. July 27, 2018) (quoting Dalba, 69 S.W.3d at 140) (same); Meehan v. PNC Fin. Services Group, Inc., 4:17-CV-2876 PLC, 2018 WL 2117655 (E.D. Mo. May 8, 2018) (quoting Lawson, 217 S.W.3d at 349) (same).
62 See supra note 60; see also Mo. Real Estate Comm’n v. Rayford, 307 S.W.3d 686, 697–98 (Mo. App. W.D. 2010) (explaining the “confusing” passages from multiple cases).
63 Doe v. Roman Cath. Diocese of Jefferson City, 862 S.W.2d 338, 341 (Mo. banc 1993).
64 Id. (quoting Villa Capri, 684 S.W.2d at 332, n.5 (citing Lincoln Credit Co. v. Peach, 636 S.W.2d 31 (Mo. banc 1982), and St. Louis-S.F. Ry. Co., 515 S.W.2d 409)).
65 See supra note 64 (citing cases where litigants argue that the presence of legislative intent to apply a law retroactively, including a substantive law, satisfies the first exception).
66 Rayford, 307 S.W.3d at 698 (“We conclude that reported decisions in this State, which may be read to suggest that legislative intent to apply a statute retroactively constitutes an independent exception to the presumption of prospective application of statutes, misspeak.”).
67 This may be in part because the legislature cannot supersede a constitutional provision via statute. Doe, 862 S.W.2d at 341.
68 Indeed, it is these types of cases where the courts of appeal conduct their most valiant efforts to set the law straight. Cf. Rayford, 307 S.W.3d 686; Desai (W.D.) (discussing Missouri case law).
69 See Villa Capri, 684 S.W.2d at 332, 332 n.5.
70 Id. (quoting Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 34 (Mo. banc 1982)).
71 Id. at 332.
72 See State ex rel. Riordan v. Dierker, 956 S.W.2d 258, 260 (Mo. banc 1997) (quoting Wilkes v. Mo. Highway & Transp. Comm’n, 762 S.W.2d 27, 28 (Mo. banc 1988)) (“It is a rule of construction that a “statutory provision that is remedial or procedural operates retrospectively unless the legislature expressly states otherwise.”).
73 625 S.W.3d 445, 453 (Mo. 2021) (quoting Wilkes, 762 S.W.2d at 28).
74 See Desai v. Seneca Specialty Ins. Co., 581 S.W.3d 596, 598–602 (Mo. banc 2019) [hereinafter Desai (Mo.)] (declining to engage in the substantive/procedural analysis because the plain language of the statute indicated legislative intent to only apply the amendment prospectively).
75 Desai (W.D.). The case was transferred to the Supreme Court of Missouri, Desai (Mo.), 581 S.W.3d 596, and the Court affirmed the judgment on the same grounds.
76 Desai (W.D.) at *4 (citing cases) (“our courts have announced related presumptions and general principles which are intended to provide guidance, but which can create unnecessary confusion when applied to misdirect attention from the simply stated constitutional prohibition”).
79 Id. The court says at this stage of the analysis, this determination does not depend “on whether the statute is procedural or substantive in nature.” Id. But, as seen through other case law, this step in the analysis is indeed a determination of whether the law is procedural or substantive in nature. See Desai (Mo.), 581 S.W.3d at 602 (“this Court need not engage in an analysis to determine whether the amended statute is substantive or procedural because even if it were determined that it is procedural – as Seneca argues – the legislature made clear with its amendment that it does not apply to contracts entered into prior to August 28”).
80 Desai (W.D.) works harmoniously with the Court’s framework in Ordinola. Under the Desai (W.D.) framework, the first step is to determine whether the legislature clearly intended the statute only apply prospectively. If it is not clear that the legislature only intended the law to apply prospectively, then the next step is to determine whether the law is procedural/remedial or substantive. If the reviewing court determines the law is procedural, then that court should find that the law applies retroactively because of the presumption that a procedural law will apply retroactively.
81 See supra note 4; SB 51 § 537.1035.3 (“sections 537.1000 to 537.1035 preempts and supersedes any state law . . . related to the recovery for personal injuries caused by actual, alleged, feared, or potential for exposure to COVID-19”).
82 SB 51 §§ 537.1005.1(1); 537.537.1010.1(1); 537.1015.2(1).
83 SB 51 § 537.1035.
84 SB 51 § 537.1020.