Opinion
Civil Action CV-16-74
06-01-2017
BENJAMIN WHEELER, Plaintiff, v. NORTHEAST PROVINCE OF THE SOCIETY OF JESUS, et al., Defendants.
ORDER
THOMAS D. WARREN JUSTICE, SUPERIOR COURT
Before the court is a motion by defendant Northeast Province of the Society of Jesus, joined by defendant Cheverus High School and supported by defendant Roman Catholic Bishop of Portland, to report the statute of limitations issue that was the subject of this court's March 3, 2017 order to the Law Court pursuant to M.R.App.P. 24(c).
The court has considered the arguments of the parties and the considerations relating to a Rule 24(c) Report as set forth most recently in Littlebrook Airpark Condominium Association v. Sweet Peas LLC, 2013 ME 89 ¶ 9, 81 A.3d 348. See in re Conservatorship of Emma, 2017 ME 1 ¶ 7, 153 A.3d 102 (applying Littlebrook factors).
On the first Littlebrook factor - whether the question reported is of sufficient importance and doubt to outweigh the policy against piecemeal litigation - the court finds that the issue is of sufficient importance but is not convinced that the issue is sufficiently doubtful. All three of the Superior Court decisions that have considered the issue, including this court's March 3, 2017 order, have ruled the same way, and two of those decisions postdated the U.S. District Court's order seeking to certify the question of state law to the Law Court in Allen v. Forest, 257 F.Supp.2d 276, 280 (D.Me. 2003). Moreover, as set forth in the March 3 order, while there is a significant split of authority on the interpretation of similar statutes in other jurisdictions, Maine's statute does not contain the kind of language relied on by other jurisdictions that have limited the extended statute of limitations to actual perpetrators.
On the second Littlebrook factor - whether the question might not have to be decided -there are numerous factual and legal issues which, once resolved either by the court or by a jury, could make a Law Court decision on the statute of limitations unnecessary.
On the third Littlebrook factor - whether a decision on the statute of limitations issue would in at least one alternative dispose of the action - this action would continue as to defendant Talbot even if the institutional defendants were to prevail on their statute of limitations defense - assuming that the Law Court were to accept a report.
Finally, there is the very strong prospect that the Law Court would not accept a Report in this case given its repeated admonition that Rule 24(c) "should be used sparingly." E.g., Littlebrook 2013 ME 89 ¶ 9.
In the recent past the Law Court declined to accept reports in Littlebrook, Conservatorship of Emma, and Clifford v. Maine General Medical Center, 2014 ME 60 ¶ 76, 91 A.3d 567. In Clifford the Court declined to accept a Report even though it simultaneously decided an interlocutory appeal on the issue of immunity.
The potential delay involved also militates against a Report. The process of briefing the issue of whether the Law Court should accept the Report would take a number of months at a minimum. If the Law Court were to accept the Report, somewhere around a year might be lost for briefing, argument, and decision. In that event, even if the Law Court were to rule in favor of the institutional defendants on the statute of limitations issue, the case against Talbot would be delayed. If the Law Court accepted the Report but affirmed the court's March 3 ruling, the case as a whole would be significantly delayed.
Wheeler's claims involve alleged events that he contends occurred almost 20 years ago in 1998. The court understands that a number of the important witnesses, including defendant Talbot and Bishop Gerry, are elderly. Their memories are not going to improve if there is any further delay.
Prior submissions by the Diocese have stated that Bishop Gerry is now 88.
For all of the above reasons, the court finds that it would not be appropriate to grant the institutional defendants' motion to report.
The entry shall be:
Defendants' motion to report the statute of limitations issue that was the subject of this court's March 3, 2017 order to the Law Court pursuant to M.R.App.P. 24(c) is denied. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).