Sliney v. Previte

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SJC-11844
ROSANNE SLINEY vs. DOMENIC A. PREVITE, JR., & others.1
Middlesex. October 8, 2015. - December 9, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Child Abuse. Limitations, Statute of. Due Process of Law,
Child abuse, Statute of limitations, Retroactive
application of statute. Practice, Civil, Statute of
limitations. Statute, Retroactive application.
Civil action commenced in the Superior Court Department on
January 30, 2012.
The case was heard by Thomas R. Murtagh, J., on a motion
for judgment on the pleadings.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Carmen L. Durso (Mark F. Itzkowitz with him) for the
plaintiff.
Sylvia Katsenes for the defendant.
Marci A. Hamilton, of Pennsylvania, & Erin K. Olson, for
National Center for Victims of Crime & others, amici curiae,
submitted a brief.
1
Michael Moe Nos. 1-10.
2
BOTSFORD, J. Until June, 2014, civil actions alleging
sexual abuse of a minor, which may be brought pursuant to G. L.
c. 260, § 4C (§ 4C), were governed by a three-year statute of
limitations. G. L. c. 260, § 4C, as amended through St. 2011,
c. 178, § 19. Section 4C was amended effective June 26, 2014,
to extend the limitations period from three years to thirty-five
years; the amending act contained a retroactivity provision, and
an emergency preamble. St. 2014, c. 145, §§ 5, 8. The
plaintiff, Rosanne Sliney, filed an action in 2012 alleging that
her uncle, the defendant Domenic A. Previte, Jr., had sexually
abused her between 1968 and 1977, when she was a child.
Judgment entered in the Superior Court in June, 2012, dismissing
the complaint on statute of limitations grounds. We consider
here two questions: whether, in the circumstances presented,
§ 4C's extended statute of limitations applies to the
plaintiff's case, and, if so, whether the retroactive
application is constitutional. We answer both questions yes
and, as a consequence, vacate the Superior Court judgment.2
Background. 1. Factual background. In the Superior
Court, this case was decided on Previte's motion for judgment on
the pleadings. See Mass. R. Civ. P. 12 (c), 365 Mass. 754
2
We acknowledge the amicus brief submitted by the National
Center for Victims of Crime, Massachusetts Citizens for
Children, BishopAccountability.org, Survivors Network of those
Abused by Priests, Child Justice, Foundation to Abolish Child
Sex Abuse, Horace Mann Action Coalition, and MaleSurvivor.
3
(1974). We recite here the facts alleged in Sliney's complaint
and for purposes of this appeal we assume the facts to be true.
Jarosz v. Palmer, 436 Mass. 526, 529-530 (2002) (motion for
judgment on pleadings filed by defendant is essentially motion
to dismiss). From the time she was five years old in 1968 until
she was fourteen years old in 1977, Sliney was sexually abused
many times by Previte, her uncle. She required psychiatric
treatment to deal with issues related to the abuse, and was
hospitalized on numerous occasions for the same reason,
beginning when she was approximately twenty-four years old.
Sliney began to recall some of the abuse by Previte
beginning in 1988, and confided in her relatives. Thereafter,
Previte wrote a letter of apology to Sliney and asked for her
forgiveness. Sliney was under family pressure to forgive
Previte, and in March of 1991, Sliney was coerced into signing a
document that purportedly released Previte from all claims in
exchange for a payment of $26,500; Sliney's mental state was
such at the time that she did not understand the nature of this
document. Thereafter, she continued to require mental health
hospitalizations. At some point in 2011, Sliney began to recall
new, different memories that Previte, in addition to committing
4
acts of sexual abuse himself, had forced her to engage in sexual
acts with other men who were unknown to her.3
On January 30, 2012, Sliney filed this action in the
Superior Court. The complaint named Previte and Michael Moe
Nos. 1–104 as defendants and alleged the facts just summarized.
Previte answered the complaint and filed a motion for judgment
on the pleadings that sought dismissal of the complaint on the
grounds that (1) the statute of limitations had already run
before Sliney filed her complaint, and (2) the release executed
by Sliney in 1991 foreclosed her from raising her claims against
Previte. In response, Sliney argued in part that the abuse she
suffered as a result of being forced by Previte to engage in
sexual activities with other men was distinct from the acts of
sexual abuse committed directly by Previte and she reasonably
could not have discovered that abuse until 2011 -- i.e., within
the limitations period of three years. She also contended that
the release she signed was invalid. In June, 2012, a judge in
the Superior Court allowed Previte's motion and entered judgment
dismissing the complaint against him on the basis that the
action was filed after the three-year statute of limitations
3
The complaint does not specifically identify the time
period in which Previte allegedly forced Sliney to engage in
sexual activity with these other men.
4
Michael Moe Nos. 1-10 are the men with whom Sliney alleges
she was forced to engage in sexual activities by Previte.
5
that had been prescribed by § 4C had expired.5 The motion judge
concluded that Sliney knew of the sexual abuse by Previte as of
1988, and the fact that she remembered additional incidents did
not extend the limitations period beyond the three-year period
ending in 1991. The motion judge did not address the validity
of the release. Sliney filed a timely appeal in the Appeals
Court, which, on December 31, 2013, affirmed the Superior Court
judgment on statute of limitations grounds in a decision issued
pursuant to its rule 1:28.
In January, 2014, Sliney filed a petition for rehearing in
the Appeals Court and thereafter an application for further
appellate review in this court. See Mass. R. A. P. 27, as
amended, 410 Mass. 1602 (1991); Mass. R. A. P. 27.1, as amended,
441 Mass. 1601 (2004). On June 26, 2014, while the petition and
application were still pending in the respective courts, the
Legislature enacted St. 2014, c. 145 (act), enlarging the
limitations period in § 4C for civil actions alleging sexual
abuse of a minor from three years to thirty-five years. Section
8 of the act contains a retroactivity provision. St. 2014,
c. 145, § 8. After the act's passage, Sliney filed a variety of
motions in the Appeals Court, seeking relief based on the
5
On July 10, 2012, an amended judgment entered that
dismissed the complaint as to Michael Moe Nos. 1-10 as well as
Previte.
6
provisions of the act.6 These motions were denied.7 In August,
2014, Sliney filed in this court a second application for
further appellate review. We allowed both of Sliney's
applications.
2. Statutory Background. As originally enacted in 1993,
§ 4C provided that "[a]ctions for assault and battery alleging
the defendant sexually abused a minor shall be commenced within
three years of the acts alleged to have caused an injury or
condition" or three years from when the victim reasonably
discovered the injury was caused by the acts, although the time
for a child to commence an action under the statute was tolled
until the child turned eighteen. G. L. c. 260, § 4C, inserted
by St. 1993, c. 307. The act substantially enlarged the
6
In Sliney's case, according to the facts alleged in the
complaint, the abuse by Previte ended in 1977, and she filed her
complaint in the Superior Court in January of 2012. Also
according to the complaint, Sliney would have turned eighteen in
1981. Therefore, accepting the complaint's alleged facts as
true, Sliney's allegations of abuse may fall within the amended
statute of limitations in St. 2014, c. 145 (act); at least an
issue is presented for the fact finder.
7
In the Appeals Court, Sliney filed a motion to stay the
appeal and for leave to file a motion for relief from judgment
pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), in
the Superior Court; a motion to reconsider; and a motion for
full court review by the Appeals Court pursuant to G. L.
c. 211A, § 11. Sliney also filed a motion in this court to stay
the action on her application for further appellate review and
for leave to file a motion for relief from judgment in the
Superior Court, which was referred to a single justice, and
ultimately denied.
7
limitations period, and also replaced the phrase "actions for
assault and battery," with "actions of tort."8 St. 2014, c. 145,
§ 4. As amended by the act, the first paragraph of § 4C
provides:
"Actions of tort alleging the defendant sexually abused a
minor shall be commenced within [thirty-five] years of the
acts alleged to have caused an injury or condition or
within [seven] years of the time the victim discovered or
reasonably should have discovered that an emotional or
psychological injury or condition was caused by said act,
whichever period expires later; provided, however, that the
time limit for commencement of an action under this section
is tolled for a child until the child reaches eighteen
years of age."9
G. L. c. 260, § 4C, as amended through St. 2014, c. 145, §§ 4-6.
Section 8 of the act defines the act's retroactive effect. It
provides in relevant part that the act's amendments to § 4C
"shall apply regardless of when any such action or claim shall
have accrued or been filed and regardless of whether it may have
lapsed or otherwise be barred by time under the law of the
8
The act was not the first time that G. L. c. 260, § 4C
(§ 4C), was amended following its enactment in 1993. The
Legislature amended § 4C in 2010 and 2011, but those amendments
did not make any changes to the three-year limitation periods
covering alleged acts of abuse and discovery of injury related
to such acts. See St. 2010, c. 267, §§ 49–51; St. 2011, c. 178,
§ 19.
9
The second paragraph of § 4C provides that for purposes of
§ 4C, "'sexual abuse' . . . mean[s] the commission of any act
against a minor as set forth in" a number of criminal statutes
that are listed at the end of the paragraph.
8
commonwealth."10 St. 2014, c. 145, § 8. The act also contains
an emergency preamble that states, "Whereas, [t]he deferred
operation of this act would tend to defeat its purpose, which is
to increase forthwith the statute of limitations in civil child
sexual abuse cases, therefore it is hereby declared to be an
emergency law, necessary for the immediate preservation of the
public safety." Accordingly, the act's enlargement of § 4C's
statute of limitations was effective on the date of the act's
approval, June 26, 2014.
Discussion. 1. Application of the act. Whether a statute
applies to events occurring prior to the date on which the
statute takes effect is in the first instance a question of
legislative intent. Smith v. Massachusetts Bay Transp. Auth.,
10
The act also enacted G. L. c. 260, § 4C½, which provides:
"An action of tort alleging that the defendant negligently
supervised a person who sexually abused a minor or that the
defendant's conduct caused or contributed to the sexual
abuse of a minor by another person shall be commenced
within the later to expire of: (i) [thirty-five] years of
the acts alleged to have caused an injury or condition to
such minor; or (ii) [seven] years of the time the victim
discovered or reasonably should have discovered that an
emotional or psychological injury or condition was caused
by such act; provided, however, that the time limit for
commencement of such an action under this section shall be
tolled for a child until the child reaches [eighteen] years
of age."
There is no claim raised by either party in this case that § 4C½
applies to any of the claims raised in Sliney's complaint. We
do not consider in this opinion any question relating to § 4C½
or the retroactivity provisions in § 8 of the act that apply to
§ 4C½.
9
462 Mass. 370, 372 (2012). If "the language of a statute is
plain and unambiguous, it is conclusive as to legislative
intent." Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008).
Where there is no express legislative directive, this court
generally applies the rule of interpretation that statutes
operate prospectively. See Federal Nat'l Mtge. Ass'n v. Nunez,
460 Mass. 511, 516 (2011) (Nunez), and cases cited.
Nevertheless, a statute will be applied retroactively if "it
appears by necessary implication from the words, context or
objects of [the amendments] that the Legislature intended [them]
to be retroactive in operation" and the retroactive intention is
"unequivocally clear" (quotations omitted). Smith, supra at
376-377. See Nunez, supra. Here, we deal with a statute that
regulates practice and procedure and affects remedies, but far
more to the point, the Legislature has made its intention about
retroactive operation both clear and unequivocal: § 8 of the
act expressly states that the act's expansion of the limitation
periods in § 4C is to apply "regardless of when any such action
or claim [relating to sexual abuse of a child] shall have
accrued or been filed and regardless of whether it may have
lapsed or otherwise be barred by time" (emphasis added).
Previte does not dispute that the Legislature intended the
act's new limitations period to apply retroactively, but argues
that the act does not apply to this case for two reasons.
10
First, he contends that even where a statutory amendment is
procedural in nature -- as is the case with an alteration of a
statutory limitations period, see generally Boston v. Keene
Corp., 406 Mass. 301, 312 (1989) (Keene Corp.) –- the amendment
applies only if the case has not yet gone beyond the procedural
stage to which the amendment pertains. His second point is
that, in any event, retroactive legislation does not apply to
judgments that are final and, in this case, there was a final
judgment.
Both of Previte's arguments fail. With respect to the
first, this court has recognized the principle that "statutes
regulating practice, procedure and evidence, in short, those
relating to remedies and not affecting substantive rights . . .
commonly are treated as operating retroactively, and as applying
to pending actions or causes of action." Fontaine v. Ebtec
Corp., 415 Mass. 309, 318 (1993), quoting City Council of
Waltham v. Vinciullo, 364 Mass. 624, 626 (1974) (Vinciullo). In
that context, as Previte states, we generally apply the
interpretive rule that a statute will be construed to apply to a
pending case only if the point in the proceedings to which the
statute is relevant has not yet passed. See Vinciullo, supra at
628. See also Porter v. Clerk of the Superior Court, 368 Mass.
116, 118 (1975). However, that rule applies only where the
Legislature has not expressly indicated whether the statute in
11
question is to be applied retroactively. Our task is to
interpret the Legislature's intention on this subject. See,
e.g., Vinciullo, supra at 626-629. See also Leibovich v.
Antonellis, 410 Mass. 568, 576 n.6 (1991). Where the
Legislature has "expressly stated" that the statute should be
applied retroactively, we follow the legislative directive. Id.
at 576. That is the case here; the Legislature has specified in
§ 8 of the act that the expanded limitations period is to apply
to cases "regardless of when any such action or claim shall have
. . . been filed," rendering the point of the proceeding no
longer relevant.
Previte's second argument is that the act cannot apply to
this case because (1) at the time that judgment entered in the
Superior Court and was affirmed thereafter by the Appeals Court,
the applicable statute of limitations was three years; (2) both
courts were correct in concluding that the three-year
limitations period had already run when Sliney filed her
complaint in 2012, given that the complaint alleges Sliney
became aware of the abuse in 1988 when she was twenty-four; and
(3) where the Superior Court judgment was correct based on the
law in effect at the time it was entered -- especially where the
correctness was confirmed by a decision of the Appeals Court --
the Superior Court judgment was "final" and not subject to being
12
altered based on a change in the law enacted thereafter.11 For
purposes of considering Previte's argument, we will assume
without deciding that the act's enlargement of the statute of
limitations could not be applied to a case on which final
judgment has entered and in which all avenues of appeal had been
exhausted or were no longer available. See Vinciullo, 364 Mass.
at 627. But this assumption does not assist Previte here
because even if the Superior Court judgment and affirmance by
the Appeals Court were correct at the time they entered,12
Sliney's timely filed petition for rehearing and first
application for further appellate review were both pending on
the act's effective date on June 26, 2014. Therefore, for the
reasons we next explain, the judgment in Sliney's case was not
"final" by the effective date.
A judgment is not final simply by virtue of the fact that
judgment entered in the Superior Court, even when the judgment
was legally correct, nor is it final when affirmed by the
11
Previte has not cited any case or other authority, and we
have found none, to support such an approach to finality, which
appears to treat separately the individual stages of the appeals
process and also to consider the substantive merits of the case.
12
Sliney contests this point. As previously noted, she
argues that her allegations of abuse at the hands of other men
with whom Previte allegedly forced her to engage in sexual
activities were distinct acts of abuse that she reasonably could
not have discovered until 2011, and therefore the statute of
limitations had not run when she filed the complaint in 2012.
See Riley v. Presnell, 409 Mass. 239, 243-244, 246-247 (1991).
13
Appeals Court. Rather, a judgment becomes final and the case is
closed only when all appeals are resolved or the time for appeal
has expired. See Reporters' Notes to Rule 54 (a) (1973), Mass.
Ann. Laws Court Rules, Rules of Civil Procedure, at 896
(LexisNexis 2012) ("Under the [r]ules [of civil procedure],
'judgment' is merely the final adjudicating act of the trial
court, and starts the timetable for appellate review").13 See
also Foxworth v. St. Amand, 457 Mass. 200, 206 (2010) (end of
appellate process is issuance of rescript to trial court, which
does not occur while petition for rehearing or application for
further review is pending); Verizon New England Inc. v. Board of
Assessors of Newton, 81 Mass. App. Ct. 457, 461-462 & n.9
(2012). Cf. Hanover Ins. Co. v. United States, 880 F.2d 1503,
1509 (1st Cir. 1989), cert. denied, 493 U.S. 1023 (1990)
(Federal Tax Court decision is final when time for filing
petition for rehearing after denial of petition for writ of
certiorari has passed).14 Section 8 of the act states that the
13
Other rules of procedure reinforce this point. See Mass.
R. Civ. P. 62 (a), as amended, 423 Mass. 1409 (1996) ("Except as
stated herein, no execution shall issue upon a judgment nor
shall proceedings be taken for its enforcement until the time
for appeal from the judgment has expired"); Mass. R. Civ. P.
62 (d), 365 Mass. 829 (1974) ("Except as otherwise provided in
these rules, the taking of an appeal from a judgment shall stay
execution upon the judgment during the pendency of the appeal").
14
Cf. Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (in
context of Federal habeas corpus review, State conviction and
"sentence become final for purposes of retroactivity analysis
14
extended statute of limitations applies to any action or claim
regardless of when it was filed, signifying at the very least
that the act applies to any action that was pending at the time
of enactment. Given the posture of this case before the Appeals
Court and this court on the effective date of the act, Sliney's
case was still pending. The act's retroactive enlargement of
the statute of limitations applicable to claims brought under
§ 4C applies to this case.
2. Constitutionality of the act's retroactivity provision.
Previte claims that if the act's revised limitations period does
apply to Sliney's action, the act is unconstitutional as applied
to him. In particular, he argues that (1) the act interferes
with his substantive, "vested" right in the Superior Court
judgment dismissing Sliney's action on statute of limitation
grounds; (2) the act violates his rights to procedural due
process because the passage of time since 1991, when the statute
of limitations originally ran in this case, will make it
virtually impossible for him to defend himself against Sliney's
claims; and (3) the act, by reaching back in time as far as it
when the availability of direct appeal to the [S]tate courts has
been exhausted and the time for filing a petition for a writ of
certiorari has elapsed or a timely filed petition has been
finally denied"); Clay v. United States, 537 U.S. 522, 527
(2003) (in postconviction context, "finality has a long-
recognized, clear meaning: Finality attaches when this Court
affirms a conviction on the merits on direct review or denies a
petition for a writ of certiorari, or when the time for filing a
certiorari petition expires").
15
does (a minimum of thirty-five years), fails the required test
of reasonableness -- a test that asks "whether it is equitable
to apply the retroactive statute" in a particular case. See
American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass.
181, 191 (1978). Accord Doe, Sex Offender Registry Bd. No. 8725
v. Sex Offender Registry Bd., 450 Mass. 780, 788 (2008) (Doe No.
8725).
"We must apply every rational presumption in favor of the
[act's] constitutionality," Anderson v. BNY Mellon, N.A., 463
Mass. 299, 308 (2012), and Previte, in challenging it, "bears a
heavy burden" of showing otherwise. St. Germaine v. Pendergast,
416 Mass. 698, 703 (1993). See Keene Corp., 406 Mass. at 305
(challenge to constitutionality of statute expanding limitations
period governing certain asbestos-related claims; "[t]he sole
issue is whether the statute falls within the legislative power
to enact, not whether it comports with a court's idea of wise or
efficient legislation"). Because Previte's first two
constitutional arguments may appropriately be considered as part
of our evaluation of Previte's third claim, we turn to that
third claim.
In evaluating the reasonableness of applying a statute
retroactively, there are three principal factors that we
examine: the public interest that motivated the Legislature to
enact the statute, the nature of the rights affected by the
16
retroactivity, and the scope of the impact of the statute on
those rights. See Anderson v. BNY Mellon, N.A., 463 Mass. at
308.
The purpose of the act, as reflected in its preamble, and
reinforced by legislative history,15 is to preserve public safety
and protect children who have been abused by enabling them to
seek a remedy for severe injuries that they did not appreciate
for long periods of time due to the abuse.16 See Riley v.
Presnell, 409 Mass. 239, 246-247 (1991). Cf. Commonwealth v.
Dockham, 405 Mass. 618, 628-630 (1989) (permitting expert
testimony to explain that delayed or gradual disclosure are
commonly recognized clinical phenomena related to child sexual
abuse). This is unquestionably an important public purpose;
there is a strong interest and a "well-established community
consensus in favor of protecting children from abuse." Roe
No. 1 v. Children's Hosp. Med. Ctr., 469 Mass. 710, 718 (2014).
Victims often suffer injuries for decades after the physical
15
See Remarks of Senator William N. Brownsberger, 2014
Senate J. 16. See also 2014 House J. 1520. The act passed both
legislative branches unanimously. See St. 2014, c. 145; 2014
House Doc. No. 4126; 2014 Senate Doc. No. 633.
16
The discovery limitations period provides one avenue of
achieving this important goal. We need not inquire why the
Legislature also extended the statute of limitations to thirty-
five years of the sexual abuse alleged; however, one compelling
explanation may be to reduce the litigation over when a victim
discovered or reasonably should have discovered the alleged
cause of action.
17
acts of abuse occurred, and the extended statute of limitations
provides the victim appropriate time to recall past acts and
face the traumatic childhood events before he or she must take
action. See Doe v. Hartford Roman Catholic Diocesan Corp., 317
Conn. 357, 419-420 (2015) (upholding constitutionality of
retroactive application of statutory amendment increasing to
thirty years statute of limitations applicable to civil actions
for child abuse); Sheehan v. Oblates of St. Francis de Sales, 15
A.3d 1247, 1258-1260 (Del. 2011) (holding constitutional statute
abolishing statute of limitations for claims of childhood sexual
abuse and creating two-year window for revived claims); Deutsch
v. Masonic Homes of Cal., Inc., 164 Cal. App. 4th 748, 752, 759
(Cal. Ct. App. 2008) (statute extending statute of limitations
from one to eight years and creating window for revival of
otherwise time-barred claims arising out of childhood sexual
abuse held constitutional).
We next consider the rights affected by § 8 of the act.
Previte asserts that he has a vested property right in having
Sliney's action dismissed, and application of the act to him
deprives him of this right. We previously have rejected a claim
that a defendant has a protected right to avoid legal claims
being brought against him by virtue of the running of a statute
of limitations. See Keene Corp., 406 Mass. at 312-313 ("the
defendants' interest in the limitations defense is procedural
18
rather than substantive. . . . [I]n cases not involving claims
to real property, the running of the applicable limitations
period bars only the legal remedy, while leaving the underlying
cause of action unaffected"). The United States Supreme Court
has reached a similar conclusion. See Campbell v. Holt, 115
U.S. 620, 628 (1885) ("We certainly do not understand that a
right to defeat a just debt by the statute of limitations is a
vested right . . ."). See also Chase Sec. Corp. v. Donaldson,
325 U.S. 304, 316 (1945) ("lifting the bar of a statute of
limitation so as to restore a remedy lost through mere lapse of
time" is not violation of Fourteenth Amendment unless defendant
can show it creates hardship and oppression). Previte further
argues he has a vested interest in the Superior Court's correct-
at-the-time judgment of dismissal. But Previte could not have a
vested interest in either the Superior Court's decision or the
Appeals Court's affirmance of that decision, because the
judgment could still be overturned on rehearing in the Appeals
Court or further appellate review. See American Steel Foundries
v. Tri-City Cent. Trades Council, 257 U.S. 184, 201 (1921)
(plaintiff had no "vested right" in decree entered by District
Court while it was subject to review). This court has long
recognized that if "the object and operation" of a legislative
measure is to "confirm and enforce rights, and to provide
adequate and suitable remedies for the violation of them," the
19
retroactive application does not impair any vested right of one
against whom such rights are enforced. Foster v. Essex Bank, 16
Mass. 245, 269, 273-274 (1819) (upholding retroactive
application of statute requiring all corporations, including
those previously organized, to continue in existence for three
years beyond time established in organizational charters, for
purpose of suing and being sued and settling business
obligations).
Previte claims that the act interferes with his procedural
due process right to be able to defend himself adequately
against a claim of sexual abuse alleged to have occurred long
ago. He mentions, for example, the inability to gather evidence
and locate witnesses due to the passage of time. We agree that
a defendant has a legitimate interest in protecting himself from
the obligation to defend against stale claims and the inherent
difficulties involved in seeking to do so. See Doe v. Hartford
Roman Catholic Diocesan Corp., 317 Conn. at 422. See also Chase
Sec. Corp., 325 U.S. at 314 (statutes of limitation are
"pragmatic devices to spare the courts from litigation of stale
claims, and the citizen from being put to his defense after
memories have faded, witnesses have died or disappeared, and
evidence has been lost"). However, Previte's interest must be
balanced against the public interest that the act seeks to
20
protect and advance. We consider this balance in connection
with the third factor, to which we now turn.
The third factor is the extent to which the act abrogates
or interferes with Previte's settled rights. See Anderson, 463
Mass. at 312. As just discussed, Previte has a legitimate
interest in protecting against having to defend against stale
claims, but he does not have a significant right to maintain a
particular statute of limitations that was earlier in effect.
See Keene Corp., 406 Mass. at 313 ("the running of the
limitations period . . . does not create a vested right which
cannot constitutionally be taken away by subsequent statutory
revival of the barred remedy").
That being said, in reviewing Previte's challenge to the
retroactive operation of the act, it nonetheless is necessary to
return to the essential requirement that a retroactive statute's
burden must be "reasonable in scope and extent." Doe No. 8725,
450 Mass. at 792. "Only those statutes which, on a balancing of
opposing considerations, are deemed to be unreasonable, are held
to be unconstitutional." American Mfrs. Mut. Ins. Co., 374
Mass. at 189-190. Among the factors we weigh in assessing
reasonableness are the duration of the burden imposed by the
retroactive statute and "whether the scope of the statute is
narrowly drawn to treat the problem perceived by the
legislature." Doe No. 8725, supra at 793.
21
Here, there is no question that the limitations period has
been very substantially expanded; although the enlargement is
not of "infinite duration," see id., thirty-five years is
unquestionably a great deal longer than three.17 The extensive
expansion of the statute of limitations undoubtedly affects a
defendant's (and similarly a plaintiff's) ability to present
evidence. On the other hand, the extent of the expansion
appears to be tied directly to the compelling legislative
purpose underlying the act, and in particular, the apparent
recognition that in many cases, victims of child abuse are not
able to appreciate the extent or the cause of harm they
experience as a result of sexual abuse perpetrated on them for
many years after the abuse has ended. See Remarks of Senator
William N. Brownsberger, 2014 Senate J. 16. Further, the act
does not create a new liability; there can be no claim here that
acts of sexual abuse committed on a child were permissible
during the time that Sliney alleges she was sexually abused by
Previte. Cf. Leibovich, 410 Mass. at 578-579 ("The new statute
in no way alters the standards for determining what kind of
17
The expansion of the so-called discovery period -- i.e.,
the period of time following a person's discovery that he or she
suffered abuse and in which she must commence the legal action -
- from three to seven years -- is also significant, especially
because the discovery period could expand the limitations period
beyond thirty-five years if the alleged acts of abuse are
discovered more than twenty-eight years after they are alleged
to have occurred.
22
behavior constitutes negligence. The defendant always had the
obligation to drive in a non-negligent manner, and this
obligation was not affected by [new statute creating right in
parent to bring claim of loss of consortium of child]").
Contrast Pielech v. Massossoit Greyhound, Inc., 441 Mass. 188,
194 (2004) (where statute previously covered discrimination
based on beliefs only of organized religions, amendment
permitting discrimination claim based on sincerely held
religious beliefs [whether derived from organized religion or
not] would not be applied retroactively; under amendment, "the
defendant will be held to an obligation that the law did not
require of it at the time of the incident"). Nor does the act
predetermine the defendant's liability; it only removes a
procedural defense. See Keene Corp., 406 Mass. at 313. The
balance of interests here supports the validity of the act and
its application to Sliney's action in particular.
Finally, Previte argues that § 8 violates the "standing
laws" provision of art. 10 of the Massachusetts Declaration of
Rights.18 Article 10 prohibits "the enactment of special
legislation that singl[es] out any [individual] for special
18
The first sentence of art. 10 provides: "Each individual
of the society has a right to be protected by it in the
enjoyment of his life, liberty and property, according to
standing laws." We have interpreted "standing laws" to mean
enacted legislation of general application. See Commissioner of
Pub. Health v. Bessie M. Burke Memorial Hosp., 366 Mass. 734,
742 (1975).
23
privileges or advantages at the expense of the rights of
another" (quotation and footnote omitted). Kienzler v. Dalkon
Shield Claimants Trust, 426 Mass. 87, 89 (1997). Previte's
challenge places a heavy burden on him to rebut the presumption
in favor of the constitutionality of a legislative enactment.
Id.
Previte has failed to show that the act, and specifically
its retroactivity provision in § 8, singles out certain
individuals for special advantages and thereby violates art. 10.
In Keene Corp., 406 Mass. at 306-311, this court considered a
similar argument that the statute in question there, which
extended the limitations period for certain asbestos-related
claims that could be brought by the Commonwealth and its
political subdivisions, violated the standing laws guarantee of
art. 10. We concluded that there was no violation. Id. at 311.
Even though private parties were excluded from taking advantage
of the limitations period expansion the statute provided, the
statute still benefited a relatively large group, as compared to
other cases challenging statutes that benefited only a single
named individual, and in which a violation of art. 10's standing
laws provision had been found to exist. See, e.g., Holden v.
James, 11 Mass. 396, 401, 403-405 (1814); Paddock v. Brookline,
347 Mass. 230, 231, 236-237 (1964); St. Germaine, 416 Mass. at
703-704. While Previte may be correct that there is no
24
certainty in the number of persons who will benefit from the
act's retroactive application, this is not decisive; neither § 8
nor any other provision in the act singles out a small group of
individuals to benefit.
3. Validity of the release. Finally, Previte argues that
even if the act is constitutional and applies here, the release
that Sliney signed in 1991 bars her from bringing this action or
asserting any claims against Previte related to alleged sexual
abuse by him. Neither the motion judge in the Superior Court
nor the Appeals Court addressed this claim, and we are not in a
position to do so on the basis of the record before us.
Sliney's complaint appears to raise factual issues concerning
the validity of the release. However, this case was decided
below on a motion for judgment on the pleadings and it may well
be that no discovery between the parties has taken place.
Because we have concluded that the act validly applies to
Sliney's claims against Previte, the Superior Court judgment of
dismissal must be vacated and the case remanded to that court.
On remand, Previte may pursue his claim that the release bars
Sliney from pursuing her case.
Conclusion. We vacate the judgment of the Superior Court
and remand the case to that court for further proceedings
consistent with this opinion.
So ordered.