PORTLAND (ME)
Portland Press Herald [Portland ME]
September 18, 2023
By Emily Allen
This is the first time the Office of the Maine Attorney General has weighed in on the constitutionality of the 2021 law, which the Roman Catholic Diocese of Portland is challenging on the grounds that it creates new liability and exposes defendants to ‘tens of millions of dollars’ in potential claims.
Maine’s attorney general pushed back Monday against a constitutional challenge by the Roman Catholic Diocese of Portland, saying a 2021 law that removed the statute of limitations for victims of childhood sexual abuse is not only constitutional but necessary to give victims time to “come to terms with the harm they have suffered.”
In filings to the Maine Supreme Judicial Court on Friday, Attorney General Aaron Frey defended the law against objections from the diocese, which has argued that the law is unconstitutional because it creates new liability and exposes defendants to “tens of millions of dollars” in potential claims.
The diocese is defending itself against dozens of claims from people who allege they were abused by church employees decades ago, all of which are on hold as the court considers the constitutionality of the law.
Frey’s brief is the first time the state has weighed in on the issue since the diocese raised constitutional questions. The court allowed him to intervene in April, when his office confirmed it would defend the law.
The new law made way for dozens of people to file claims against the diocese that allege they were abused at the hands of its employees.
Now that Frey, attorneys for those suing the diocese and the church have filed their initial briefs to the high court, the diocese has three weeks to reply. Gerald Petruccelli, who represents the diocese, declined to comment on the recent filings but said he will be responding.Advertisement
The case will then move to oral arguments, which have yet to be scheduled.
NEW LIABILITIES?
The diocese asked the Supreme Judicial Court to consider the law’s constitutionality in March after a lower court ruled in the plaintiffs’ favor.
Petruccelli has argued the law is unconstitutional because it violates the diocese’s due process rights to a fair trial, putting them at a disadvantage because so much time has passed and many of those involved have died or no longer live in Maine. Some of the alleged abuse occurred as long ago as the 1950s.
The diocese also argued that the protections it enjoyed under the previous statute of limitations should be considered “vested rights” and that the claims unfairly create a new liability because the state’s high court, which hears appeals as the Law Court, had never recognized a person’s ability to sue an employer for an employees’ wrongful actions.
The Law Court didn’t adopt “negligent supervision” as a theory of liability until a case in 2005, according to the diocese’s brief.Advertisement
“The Maine Constitution prohibits retroactively subjecting any organization, not just a church, to litigation, decades after a human actor allegedly covertly committed a crime, on the theory that someone in authority in the organization knew about the actor’s earlier crimes and failed to prevent this one,” Petruccelli wrote in a July 14 filing. “It is not constitutionally possible to subject any organization to litigation and liability decades after any litigation on any theory was barred and where the only plausible tort theory of liability was first recognized long after the events to be litigated.”
More than 30 civil lawsuits have been filed against the diocese, not the individual priests or employees accused of the abuse. All have alleged they were sexually abused as children by church employees. They say church leaders knew about the abuse and went to great lengths to conceal it – priests were often reassigned to different parishes following reports they were abusing young parishioners, the complaints state, none of which was disclosed to parishioners.
Meanwhile, lawmakers agreed this year to eliminate “charitable immunity,” under which organizations like the diocese have some protection against large damage amounts in court.
While the diocese is not yet asking the Supreme Judicial Court to weigh in on this latest action by the Legislature – it means the church risks a liability “in the tens of millions of dollars,” Petruccelli wrote.
“It is multifactorial time travel, authorizing litigation that has long been barred on new substantive law of duty and liability, and retroactively eliminating defenses that were available until these laws were enacted,” he argued.
Frey pushed back on the church’s “vested rights” arguments, arguing in his brief that statutes of limitations have never been ironclad or offered their benefactors fundamental rights. Statutes of limitations are more policy-driven, regularly expanded and removed by lawmakers based on changes to public opinion and new research, he said.Advertisement
The Maine Legislature altered its statute of limitations for criminal and civil cases involving childhood sexual abuse several times in the 1990s and early 2000s. Those changes, and the 2021 decision to remove all time barriers for civil claims, are based on a “growing body of research,” Frey wrote, that victims of abuse often need decades before they can fully understand and report what happened to them.
“A body of academic research has established that child victims of sexual abuse may not grasp the gravity of what they have experienced, or refuse to disclose it, until many years later,” he wrote. “Ensuring that they can seek redress for the harms they allege is far more important than the impact of eliminating the statute of limitations on potential defendants.”
Frey also disagreed that the law creates any new liabilities. He said that it was “incorrect” of the diocese to argue they could not be sued for “negligent supervision” before 2005. Even though the Maine Supreme Judicial Court never adopted that as a theory of liability before then, Frey wrote the court never ruled against it, calling the theory an “open question.”
DOZENS OF CASES ON HOLD
Michael Bigos, who is representing the 13 people whose complaints were transferred to the Supreme Judicial Court, as well as dozens of others, wrote in his own brief filed with the court Thursday that many other states have similar laws, and have survived similar legal challenges.
To strike down Maine’s law “would be to leave Maine as an island in a sea of states that have elected to expand child sex abuse survivors’ access to justice for worthy public policy reasons,” he said.Advertisement
Bigos’ and Frey’s filings largely raised the same legal arguments. But Bigos also raised the impact the legal challenges have had on his clients’ cases, where attorneys aren’t able to begin the civil discovery process.
He has repeatedly brought this up as something nearly as important as the ability to go to trial because it could shine light on what abuse the diocese was aware of and when – information that would be crucial to the plaintiffs’ “fraudulent concealment” claims, that the church was not only aware of the alleged abuse but moved clergy around in an effort to hide it.
“In many cases now before this Court, there is documentation that the Roman Catholic Bishop and other high-ranking officials of the Diocese received allegations of child sex abuse and elected to reassign the accused priest to a different parish – hoping to appease known victims that might sound the alarm – only to minister to a new group of vulnerable, unsuspecting families who had no indication of the significant risk of harm to their children,” he wrote.
The case is already drawing widespread attention over its implications.
The American Tort Reform Association and the American Property Casualty Insurance Association both urged the court to rule in the diocese’s favor. In a joint brief filed Friday, the groups argued that the Legislature went too far when it changed the law in 2021, undermining due process and potentially opening a floodgate in other areas of the law.
“It would also invite legislation to revive claims of other sympathetic individuals – as no lawyer wishes to tell a person seeking help that the time to sue has passed – or in response to calls to address other past injustices as societal and political shifts occur.”
The Maine Coalition Against Sexual Assault, Pine Tree Legal Assistance and Child USA wrote to support the plaintiffs and the law, saying that these cases must move forward for the sake of “hundreds of child sex abuse victims throughout Maine who embraced the window in pursuit of long overdue justice.”