A Maine judge is considering the constitutionality of a 2021 law that allows Mainers with previously expired civil claims of childhood sexual abuse to sue the alleged perpetrators regardless of the amount of time that has passed.

The law has opened the Roman Catholic Diocese of Portland to more than a dozen civil complaints, with more waiting in the wings. But the diocese is arguing that the law is unconstitutional because it creates new liability and exposes the church to “tens of millions of dollars” in potential claims.

Superior Justice Thomas McKeon heard initial arguments in the state’s Business and Consumer Court on Tuesday and said he likely will rule within the coming weeks. The case, however, is expected to ultimately reach the Maine Supreme Judicial Court.

The Maine Attorney General’s Office said Tuesday that if the case reaches the state’s high court, it will evaluate whether or not to get involved in defending the law.

McKeon said Tuesday that his decision will be a “difficult one” that has nothing to do with the circumstances of the complaints or the intent of the Legislature.

“You agree that whatever the Legislature decided, even for the most beneficial reasons … what I’m tasked to do is to decide what’s constitutional?” McKeon asked attorneys Tuesday. 

In the meantime, the judge agreed to extend a pause on the discovery process that allows attorneys on both sides to start collecting evidence to support their cases.

Michael Bigos, who is representing 13 people with civil claims against the diocese, said Tuesday that he felt it was “too early” to stop that process. 

‘VESTED RIGHT’

If these cases were to ever go to trial, the church would be at an unfair disadvantage because so much time has passed and most of the witnesses are dead or unable to testify, said Gerald Petruccelli, the diocese’s attorney.

“You’ve got witnesses and I don’t – that’s not due process,” Petruccelli said.

Petruccelli further argued that the idea of negligent supervision — that the diocese should be held responsible for abuse committed by its priests — wasn’t recognized by Maine’s highest court until 2005, he said.

“If these plaintiffs had brought timely action on any theory against the diocese, they would’ve lost the cases,” Petruccelli said. He said the diocese itself physically could not have sexually abused children, because “it is anatomically impossible for anyone but a human to commit those acts.”

Repealing the statute of limitations for civil cases, Bigos argued, gives people the necessary time to reconcile with their abuse.

In one case from the 1980s, Bigos said, Maine’s high court ruled in favor of a retired sheet metal worker who was seeking compensation for asbestos exposure, years after his contact with the deadly substance.

Bigos compared the time it takes to realize the health consequences of asbestos, which he said typically aren’t apparent until patients are more than 50 years old, to the time it takes survivors of childhood sexual abuse to come forward.

But if the law stands, Petruccelli argued, no one in Maine will have a “right to rest” because the Legislature could always change the law and create new liability.

He cited several cases which he said prove a long-running standard in Maine that once-promised immunity is a “vested right” and that retroactive laws have never been favored by Maine’s highest court.

One recent example, he said, was the case where the Maine Supreme Judicial Court ruled that a voter-approved law blocking the New England Clean Energy Connect project — a transmission corridor carrying electricity from Quebec to Massachusetts — would be unconstitutional if enough work on the transmission line had been completed before the statewide referendum was held. A lower court is still determining whether the project had established vested rights.

Petruccelli – who was one of the attorneys who argued the NECEC case in front of the Maine Supreme Judicial Court – argued Tuesday that the diocese’s once-promised immunity under the statute of limitations should be protected as the same kind of vested right.

Bigos said Tuesday that there is far more precedent to consider.

“There are other theories of liability that the court must, and can, consider when deciding these motions,” Bigos said.

‘WILL OF THE PEOPLE’

The statute of limitation question has been debated for years and was not unexpected when the law was passed in 2021.

Former Rep. Thom Harnett, who co-chaired the state’s Judiciary Committee when the bill was debated, said last month that he expected the diocese to challenge the law. But after a lengthy presentation by the Maine Attorney General’s Office, the committee was confident “that this was proper and defensible,” Harnett said.

“Now the diocese is asking the court to set aside the will of the people,” Bigos said. After the diocese spent decades “prioritizing the protection of clergy,” he added, “now it is time to protect the public.”

Maine lawmakers have made several changes to the statutes for civil claims, but not for prosecutors’ ability to pursue older criminal cases.

In 2000, the Maine Legislature passed a law that indefinitely extended the statute of limitations for most civil claims of child sex abuse, but only for cases alleged to have occurred after 1987. Many of the claims in the 13 current lawsuits against the diocese date to the 1950s and 1960s.

Nationally, the Catholic Church has challenged efforts to eliminate or roll back statutes of limitations, often unsuccessfully.

In 2015, the Connecticut Supreme Court rejected the Hartford Diocese’s claim that a retroactive change was unconstitutional. That ruling, however, lists Maine as one of 24 states whose courts consider retroactive statute of limitation changes as invalid, although there is no case law in Maine, so the matter is not settled.

Petruccelli also countered claims Tuesday that the church participated in “fraudulent concealment” by moving priests from parish to parish despite knowing that they had abused children and without disclosing any allegation of abuse to parishioners.

Even if the new law is deemed unconstitutional, there is a possibility that the complaints could still move forward on these claims, because “fraudulent concealment” is not subject to the same statute of limitations.

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