The Portland Press Herald [Portland ME]
January 4, 2023
By Emily Allen and Eric Russell
Attorneys for the diocese and the 13 plaintiffs suing the church will argue the case before Superior Court Justice Thomas McKeon later this month.
The Roman Catholic Diocese of Portland is challenging the constitutionality of a state law that removed the statute of limitations for anyone who wants to file a lawsuit alleging that they experienced childhood sexual abuse in Maine.
When the law eliminating the time limit for childhood abuse claims passed in the summer of 2021 it opened the door for people to sue the diocese for decades-old incidents.
The diocese says the Legislature overstepped its bounds, and that the newfound ability to sue for incidents before 1987, which had been the statute of limitations in most cases, violates both the Maine and U.S. constitutions. The attorney leading a group of new plaintiffs suing the diocese rebutted that argument Wednesday at a news conference in Lewiston.
After 13 people filed claims against the diocese alleging the church failed to protect them from known abusers, the diocese filed a challenge in November, saying that lawmakers had no right to remove the statute of limitations. Superior Court Justice Thomas McKeon will hear the case on the Business and Consumer Docket at the end of the month.
“Maine law is clear that legislation imposing or creating liability may not do so retroactively,” the diocese argued in its challenge. “If this law is operational, the diocese will be defending a large but currently unknowable number of cases that have been time-barred for two decades or longer, demanding, in the aggregate, tens of millions of dollars.”
The diocese also argued that the people suing the church had ample time to file their complaints under the original statute of limitations. The diocese said it is at an unjust disadvantage to defend itself against claims so old that most witnesses, and even the priests accused of abuse, aren’t alive and able to participate in the legal process.
Attorney Michael Bigos, representing the 13 plaintiffs who have filed complaints against the diocese thanks to the 2021 law, said Wednesday that his clients are the ones who have been at a disadvantage.
These plaintiffs have suffered from mental health disorders stemming from the abuse, which made it difficult for them to reconcile what happened until later in life, Bigos said. Their complaints allege that the diocese fraudulently concealed abuse by moving accused priests around Maine parishes and failed to inform families and other parishioners they were at risk of abuse. That concealment wouldn’t have been protected under the same time barriers, Bigos argued.
“No one in Maine has ever had the right to sexually abuse children,” Bigos wrote in a filing Wednesday on behalf of his clients.
RETROACTIVITY AND PRECEDENT
The diocese’s challenge largely takes issue with the idea that a law enacted in 2021 can be applied retroactively.
Retroactivity is only legally possible, the church’s attorney, Gerald Petruccelli, wrote in November, if it doesn’t interfere with “vested rights” that a defendant possessed before a new law has taken effect.
To help make its case, the diocese referenced pending legal questions over the constitutionality of a voter-approved law from 2021.
That case involves the New England Clean Energy Connect project, a 145-mile transmission corridor from Quebec to Massachusetts that would cross through Maine. Even though work already had begun on the project, Maine voters passed a law in 2021 to halt construction. Maine’s highest court ruled in August that if an entity has enough “vested rights,” meaning property or rights they legally acquired before a new statute, then the voter-approved law is moot.
Bigos wrote that the NECEC case doesn’t apply because the court would have to recognize “a property right in employers and perpetrators being able to sexually abuse children.”
Bigos said the Legislature was absolutely within its rights to alter state law. Former Rep. Thom Harnett, who co-chaired the Judiciary Committee when the bill was debated, said Wednesday that he had expected the diocese would challenge the law.
Harnett said committee members had their own questions about legality and constitutionality, too.
But after a lengthy presentation by the Maine Attorney General’s Office, the committee was confident “that this was proper and defensible,” Harnett said.
Dmitry Bam, vice dean at the University of Maine School of Law, reviewed the diocese’s argument and said he doesn’t see a “slam dunk on either side.”
Maine doesn’t have any case law on the matter, but a similar constitutional challenge heard in a 2015 Connecticut Supreme Court case, Doe v. Hartford, provided a summary of where other states stood at the time.
In that ruling, Maine was listed as one of 24 states whose courts consider retroactively applied statutes of limitations as invalid. That, Bam said, could potentially favor the diocese.
“It all depends on how the court sees it, but there are certainly hints in earlier cases that Maine seems to be more accepting of the vested rights argument,” Bam said. “That’s the good thing about state constitutions. There is no federal principle to apply here, which allows states to be creative in how they pass laws.”
Both Bigos and the diocese seem to agree that whatever decision McKeon reaches will have an enormous impact on the future of youth-serving institutions that risk being sued and survivors who want their day in court.
The attorneys are scheduled to argue their case in front of McKeon on Jan. 31.
HOW TO GET HELP
IF YOU or someone you know has experienced sexual violence, you can call 1-800-871-7741 for free and confidential help 24 hours a day.
TO LEARN more about sexual violence prevention and response in Maine, visit mecasa.org, the Maine Coalition Against Sexual Assault website.