McCarthy v. The Roman Catholic Bishop of Portland

• Court: Superior Court of Maine
• Decided: February 13, 2023
• Docket: CUMbcd-cv-22-65
• Status: Unpublished

Opinion

STATE OF MAINE BUSINESS & CONSUMER COURT CUMBERLAND, ss. LOCATION: PORTLAND DOCKET NOS. BCD-CIV-2022-00065

DANIEL MCCARTHY, ) ) Plaintiff, ) ) ORDER DENYING DEFENDANT THE V. ) ROMAN CATHOLIC BISHOP OF ) PORTLAND'S MOTION TO DISMISS THE ROMAN CATHOLIC BISHOP ) OF PORTLAND, ) ) Defendant. )

Before the court is the Motion to Dismiss filed under Maine Rule of Civil Procedure

12(b)(6) by Defendant The Roman Catholic Bishop of Portland ("RCB") regarding the claims of

Plaintiff Daniel McCarthy ("Plaintiff'). 1 The col)rt heard argument on RCB's motion on January

31, 2023. For the following reasons, the motion is denied. The court does, however, continue the

stay on discovery in anticipation of RCB' s motion to report.

BACKGROUND

Plaintiff claims that he, as a minor, was the victim of sexual acts committed by adults

recruited, selected, trained, supervised and retained by RCB to serve as priests, clergy, lay

educators, or in other roles at RCB's parishes in the State of Maine. (Compl. ,r,r 7-10, 14-16, 23.)

The instances of abuse underlying Plaintiffs claims occurred during 1978 and 1979. (Compl. ,r,r

17-33.) RCB argues that Plaintiffs allegations are insufficient to state a claim because their

actionability is dependent on 14 M.R.S. § 752-C(3). This subsection was added to the statute

1 Plaintiff filed a seven-count complaint asserting various theories of liability. Count I is for negligent failure to warn, train or educate; Count II for breach of fiduciary duty; Count III for fraudulent concealment; Count IV for negligent supervision; Count V for sexual assault/respondeat superior; Count VI for intentional infliction of emotional distress; and Count VII seeks punitive damages.

1 during 2021 and removes the statute of limitations for "all actions based upon sexual acts toward

minors regardless of the date of the sexual act and regardless of whether the statute of limitations

on such actions expired prior to" the amended statute's effective date. 14 M.R.S. § 752-C(3)

(2022). RCB asserts that, as retroactively applied to Plaintiff's claims, the amended statute divests

RCB of vested rights and violates its substantive and procedural due process rights guaranteed by

the Maine State Constitution. See Me. Const. art. I,§ 6-A. 2 .

MOTION TO DISMISS STANDARD

A motion to dismiss under Rule 12(b)(6) "tests the legal sufficiency of the complaint and

does not probe the merits of the underlying case." Carey v. Bd. of Overseers of the Bar, 2018 ME

119, ,r 19, 192 A.3d 589 (internal quotation marks omitted). In reviewing a motion to dismiss,

courts must "consider the facts in the complaint as if they were admitted." Bonney v. Stephens

Mem. Hosp., 2011 ME 46, ,r 16, 17 A.3d 123 (citing Saunders v. Tisher, 2006 ME 94, ,r 8,902

A.2d 830). The complaint is viewed "in the light most favorable to the plaintiff to determine

whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to

relief pursuant to some legal theory." Id. (quotation marks omitted). "Dismissal is warranted

when it appears beyond a doubt that the plaintiff is not entitled to relief under any set of facts that

he might prove in support of his claim." Id. (quotation marks omitted).

DISCUSSION

RCB's Motion to Dismiss first takes the position that section 752-C, subsection 3, is legally

precluded from retroactive application. (Mot. Dismiss 3, 5-21.) RCB next argues that section

752-C applies only to human defendants accused of committing the "sexual acts toward minors"

specified in subsection 2, but not to organizations like RCB. (Mot. Dismiss 3, 21-29.)

2 Neither party is arguing that any further record needs to be developed, as the motion can be determined based on the dates alleged in the Complaint.

2 I The constitutionality ofretroactive application and section 752-C.

Statutes are presumptively valid, with reasonable doubts resolved m favor of

constitutionality. In re Evelyn A., 2017 ME 182, ~ 25, 169 A.3d 914. The party asserting that a

statute is unconstitutional bears the "heavy burden" of overcoming this presumption, and to do so

they must "demonstrate convincingly that the statute conflicts" with the Maine State Constitution.

Irish v. Gimbel, 1997 ME 50, ~ 6,691 A.2d 664.

RCB argues that it has a vested right to an immunity generated by an expired statute of

limitations. Thus, RCB asserts that the legislature cannot constitutionally revive claims that

expired pursuant to the statutes oflimitations provided by past iterations of section 752-C, because

doing so deprives RCB of its immunity from suit in violation of its substantive and procedural due

process rights. Plaintiff disagrees, and the parties each present the court with a line of cases in

support of their argument.

RCB claims it has a vested property interest or property right in the immunity conferred by

an expired statute of limitations because such an immunity is "a thing of value that constitutes

property." (Mot. Dismiss 6.) It relies on NECEC Transmission LLC v. Bureau ofParks & Lands,

in which the Law Court embraced the view that "property" within the meaning of the Maine State

Constitution encompasses "everything to which a man may attach a value and have a right."

NECEC TransmissionLLCv. Bureau ofPar~ & Lands, 2022 ME 48, ~ 44,281 A.3d 618 (citation

and quotation marks omitted). The Maine State Constitution protects cognizable, vested property

rights from abrogation by retroactive legislation. Id

However, statutes of limitation are different than property rights. They are creatures of

statute within the prerogative of the legislature. See Myrickv. James, 444 A.2d 987, 989-93 (Me.

1982); see also Miller v. Fallon, 134 Me. 145, 147, 183 A. 416,417 (1936). NECEC Transmission

3 LLC placed the vested rights doctrine and the concomitant restraint on legislative power to enact

retroactive legislation in the Maine· State Constitution's due process clause. NECEC Transmission

LLC, 2022 ME 48, ,r 42,281 A.3d 618 (citing Me. Const. art. I,§ 6-A). The Law Court, however,

has not had the opportunity to extend its holding regarding vested property rights to statutes of

limitations.

The other cases relied on by RCB provide support for an inference that there may be a

vested property right in an expired statute of limitations. E.g., Dobson v. Quinn Freight Lines,

Inc., 415 A.2d 814, 816 (Me. 1980) ("No one has a vested right in the running of a statute of

limitations until the prescribed time has completely run and barred the action."); Morrissette v.

Kimberly-Clark Corp., 2003 ME 138, 837 A.2d 123. However, the Law Court's discussions of

vested rights in Morrissette and Dobson are dicta which are neither central nor necessary to the

holdings. See Morrissette, 2003 ME 138, ,r,r 11-15, 837 A.2d 123 (permitting application of a new

statute to the court's modification of the level of the petitioner-employee's workers'· compensation

benefits when the benefits had been ordered pursuant to a prior version of the statute);. Dobson,

415 A.2d at 816-17 (allowing the case to proceed when the amended statute merely extended the

. statute oflimitations); Miller v. Fallon, 134 Me. 145, 147-148, 183 A. 416, 417 (1936) (finding

the statute at issue was not intended to apply retroactively). None of these cases explain why a

vested property right emerges from an expired statute of limitations. Nor do any of them locate

vested rights protections in the Maine State Constitution's due process clause.

Beyond Maine law, federal precedents hold that there is neither vested right in an immunity

flowing from an expired statute of limitations nor due process protection under the Fourteenth

Amendment against retroactive legislation that revives claims that expired under a prior statute of

limitations. E.g., Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 311-16 (1945). These cases are

4 also not controlling here, where RCB does not claim protection under the United States

Constitution. But they do have persuasive power and specifically address statutes of limitation in

the context of vested rights. Indeed, the Supreme Court of the United States distinguishes between

vested rights to real or personal property, which receive constitutional protection, and the benefit ,

of an expired statute oflimitations. Campbell v. Holt, 115 U.S. 620, 625 (1885); Donaldson, 325

U.S. at 311-16.

Apart from these federal cases, Plaintiff relies on a different line of cases decided by the

Law Court. Norton v. CP. Blouin, 511 A.2d 1056, 1060-61 & nn.5, 7 (Me. 1986); State v. LVI

Group, 1997 ME 25, ,r 9, 690 A.2d 960 (analyzing retroactive legislation under the Maine State

Constitution's due process, clause). These cases, which considered the constitutionality of

economic regulation distinct from the statute at issue in this case, are imperfect as precedents.

However, they provide a workable alternative standard for courts to determine wh~n retroactive

legislation works a deprivation of a party's due process rights:

1) Retroactive application of the statute must affect substantive rights, and not merely remedies; ~) The legislature must provide a clear expression ofintent favoring the retroactive application; and 3) The retroactive application must not be an unconstitutional exercise of the powers conferred to the legislature by the constitutions of the United States and the State of Maine;

Norton, 511 A.2d at 1060 n.5; LVI Group, 1997 ME 25, ,r 9, 690 A.2d 960. The Law Court left f

this analysis concerning the retroactive application of statutes intact when it decided NECEC

Transmission LLC. NECEC Transmission LLC, 2022 ME 48, ,r 36,281 A.3d 618 (citing Norton,

511 A.2d at 1060 n.5; LVI Group, 1997 ME 25, ,r 9, 690 A.2d 960).

Moreover, the United States and State of Maine constitutions are o~en coextensive in the

context of their due process protections. See Doe v. Williams, 2013 ME 24, ,r 65, 61 A.3d 718.

5 When considering the constitutionality of social welfare legislation under the federal Constitution,

courts apply the rational basis test. E.g., Califano v. Aznavorian, 439 U.S. 170, 174, 178 (1978).

Maine applies a "substantially similar" test, under which legislation need have only a "legitimate

legislative purpose furthered by rational means" to survive judicial review. LVI Group, 1997 ME

25, 19,690 A.2d 960 (citing Tompkins v. Wade & Searway Constr. Corp., 612 A.2d 874, 878 n.2

(Me. 1992)). Application of this standard makes sense where the determination of when causes o f

action expire is historically a legislative prerogative. Here, the purpose underlying section 752-C,

as amended by the 1301h Maine Legislature, reflects a unique and evolved societal recognition o f

the nature of child sexual abuse and the headwinds against victims' ability to bring their claim.

RCB argues that Plaintiff's line of cases is inapplicable, because it has a vested and fundamental

right to immunity arising from the expired statute of limitations. But, as noted above, NECE C

Transmission LLC does not extend Maine's vested rights doctrine to statutes of limitations.

The parties each make compelling arguments. In consideration of the closeness of this

question and the presumption favoring constitutionality, the court cannot say that RCB has

overcome its "heavy burden" to "convincingly" demonstrate that section 752-C, as amended,

conflicts with the Maine State Constitution. Irish, 1997 ME 50, 16,691 A.2d 664.

II Application ofsection 752-C to institutional defendants.

RCB also raised a related issue as to whether section 752-C m:ay be applied to institutional

or organizational defendants. Section 752-C, subsection 2, provides the basis for RCB' s argument.

That subsection defines "sexual acts towards minors," and links its definition directly to offenses

defined by the Maine Criminal Code. 14 M.R.S. § 752-C(2) (citing 17-A § 251(c), (d) (2022)).

RCB claims that this subsection limits the statute's application to the human perpetrators o f

misconduct, since no organization is anatomically capable of perpetrating the specified crimes.

6 Plaintiff counters that Section 752-C, subsections 1, removed the statutory limitation for offenses

"based upon sexual acts towards minors," and that his claims against RCB fall within that

description. 14 M.R.S. § 752-C(l), (3) (emphasis added).

In Boyden v. Michaud; the trial court considered this argument in the context of a prior

iteration of section 752-C. Boyden v. Michaud, No. CV-07-331, 2008 Me. Super. LEXIS 88, at

* 11-15 (May 14, 2008). The Boyden court looked to the "plain meaning of the phrase based upon

and the focus of the statute at hand, as gleaned from the language" and held that section 752-C is

intended to apply to "actions flowing from a particular type of harm, not on the nature of the party

or parties causing the harm." Boyden, 2008 Me. Super. LEXIS 88, at *15 (citation and quotation

marks omitted). This is the "harm-based approach." Id. (citing Almonte v. New York Med. Coll.,

851 F. Supp. 34, 39 (D. Conn. 1994)). The court arrived at this conclusion after reviewing the

legislative history of section 752-C from 1985 through 2000, as well as jurisprudence interpreting.

similar legislation from other jurisdictions. Id. at * 11-14. This court has no reason to deviate from

the rationale provided in Boyden, notwithstanding that court's qualification of this question as

"razor thin. " 3 Id. at * 15.

III Stay on discovery.

During oral argument, RCB expressed that if the court denies its motion then it would ask

the court to report the legal questions in this matter to the Law Court. See M.R. App. P. 24(c).

The court agrees that these questions are important, given the number of related cases already

docketed. 4 Based on the representations of counsel, there is a large number of new cases

3 The court views Boyden as more persuasive than Me. Human Rights Comm 'n ex rel. Pitts v. Warren, No. KENSC- CV-20-85, 2021 Me. Super. LEXIS 153, at *3-4 (March 12, 2021). Warren involved a discriminatory proceeding. While child sex abuse was a factor, it was not based on that act. It was based on an unlawful eviction. 4 Thirteen cases are filed in the Business & Consumer Court. At least one other case is pending in the Superior Court.

7 anticipated. The court also acknowledges that this is a close case, and RCB raises serious

challenges to the constitutionality and applicability of section 752-C. See Boyden, 2008 Me.

Super. LEXIS 88, at *13 (suggesting a report on the corporate defendant would have been prudent).

The court anticipates RCB' s motion to report this issue to the Law Court, and the case is stayed

while the motion is decided as long as the motion is filed within 21 days of this order.

CONCLUSION

Based on the foregoing, the entry will be: Defendant The Roman Catholic Bishop of

Portland's Motion to Dismiss is DENIED. In the event The Roman Catholic Bishop of Portland

moves to certify a question for the Law Court pursuant to M.R. App. P. 24(c), the case will be

stayed until that motion is decided.

SO ORDERED.

The Clerk is requested to enter this Order on the Docket, incorporating it by reference

pursuant to Maine Rule of Civil Procedure 79(a).

Date: _ _ '\..l_\1_l_~~;1J<------ Thomas R. McKeon Justice, Business & Consumer Court

Entered on the docket: 02/14/2023