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Kohn v. Darlington Community Schools7/1/2005
This court has concluded many times that the legislature may sever a person's claim by a statute of limitations or a statute of repose when the person has had no possibility of discovering the injury----when the person has been blameless in every respect. These decisions represent judicial deference to the stated policy of the legislature. Protecting the interests of those who must defend claims based on old acts or omissions is a policy concern that legislative bodies have weighed for centuries. . . .
The legislature formulates the statutory law of Wisconsin, pursuant to constitutional authority. The legislature's authority includes the power to define and limit causes of action and to abrogate common law on policy grounds.
. . . Article I, § 9 does not empower this court to substitute its views for legislative policy any more than art. I, § 9 prevents this court from using sound policy to influence tort law.
Statutes limiting the time period for filing actions historically have been policy decisions within the province of the legislature. . . . [Statutes of repose] reflect the legislature's view that prompt litigation ensures fairness to the parties. . . .
We remain persuaded that time limitation periods articulated by statutes of repose inherently are policy considerations better left to the legislative branch of government. . . . Were we to extend a remedy outside the limits of these recognized rights, we effectively would eviscerate the ability of the legislature to enact any statute of repose.
Id., -54 (emphasis added).
As such, we are not permitted to second-guess the policy choices the legislature made in enacting § 893.89 under the guise of Article I, Section 9. Regardless of whether this court considers the repose period in § 893.89 to be a wise policy decision or the result it produces in this case to be "fair," these are policy choices the legislature was entitled to make and to which we must defer. Therefore, the Kohns' challenge under Article I, Section 9 must fail.
2. Equal Protection
The Kohns also contend that § 893.89 runs afoul of the constitutional guarantee of equal protection under the state and federal constitutions because it grants protections to a certain class of defendants and not others. Specifically, the Kohns argue that the statute is unconstitutional because it grants protections to those involved in the improvement of real property, but not material manufacturers and owners and occupiers of the property in certain circumstances.
While it may seem odd that the Kohns are essentially alleging that the statute is unconstitutional because it does not protect additional classes of defendants, we specifically held in Funk, 148 Wis. 2d at 68, that a "plaintiff has standing in a representative capacity to raise the rights of the potential defendants excluded from the statute."
When considering an equal protection challenge to a statute, this court employs the rational basis test, unless the statute involves a suspect class or a fundamental right (which § 893.89 does not). Aicher, 237 Wis. 2d 99, ; Tomczak, 218 Wis. 2d at 264. "Under the rational basis test, a statute is unconstitutional if the legislature applied an irrational or arbitrary classification when it enacted the provision." Aicher, 237 Wis. 2d 99, . Under the rational basis test, it is not sufficient to declare a statute unconstitutional because "some inequality results from a classification[,]" Kallas, 66 Wis. 2d at 388; rather, we must "sustain a statute unless we find that 'it is "patently arbitrary" and bears no rational relationship to a legitimate governmental interest.'" Aich
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