Let's say the statute of limitations on wrongful death is 3 years. 5 years pass. Then, the statute of limitations is completely removed.

Can the lawsuit be filed now? Does the statute permanently invalidate the case the first time or does it depend on current law?


1 Answer 1


Stogner v. California, a criminal case, held that "A law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution". In 1798, in Calder v. Bull, SCOTUS long ago decided that the Ex Post Facto Clause does not apply to civil cases. In that case, Calder had been entitled to property under a will, and the Connecticut legislature changed the law. The Supreme Court held that the legislative act was not an Ex Post Facto law. Chase's reasoning, which relies on the distinction between ex post facto law and retrospective law, is this:

In my opinion, the true distinction is between ex post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law. The former only are prohibited. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive, and it is a good general rule that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime. The expressions "ex post facto laws" are technical; they had been in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors.

So, yes it can.

  • 1
    Calder v. Bull demonstrates that the ex post facto clause of the U.S. Constitution isn't a bar to the civil suit. But that is not the only argument available to dispute such a statute. At a minimum, as a matter of statutory interpretation and common law, causes of action barred by a statute of limitations that is then repealed are presumed to bar a claim absent very clear language to the contrary. There may also be state constitutional arguments and due process arguments.
    – ohwilleke
    Sep 14, 2020 at 22:50

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