The Aloha Spirit


So we had a nice little hiatus while I vacationed in Hawaii (my husband initially said "why are we leaving Maine in the summer?", then, as the date approached, he realized we weren't having any summer in Maine this year; I heard it was quite soggy while I was snorkeling in Maui. What a shame hee hee). 

So what's been doing in my absence?

1.  The proposed amendments to the Maine Rules of Appellate Procedure (see June 10 entry) are taking their own hiatus.  So for now, it's still one-side copying for Appendices in the SJC and two-sided in the First Circuit.

2.  The First Circuit amendments to introduce electronic filing is proceeding apace, so that should be on the horizon soon (I am one of the guinea pigs for the training modules; the thinking must be that if I can get it, anyone can.) 

3.  The most interesting SJC decision while I was away was probably Picher v. The Roman Catholic Bishop of Portland, 2009 ME 67.  [ ]  I don't have a lot to say substantively about the reasoning of the majority, concurrence and dissent; just one observation. 

The majority holds that it is not extending charitable immunity to intentional torts, and that the language in the relevant statute, 14 MRS s. 158, that "[a] charitable organization shall be considered to have waived its immunity for negligence or any other tort during the period a policy of insurance is effective …" does not mean the Legislature was affirmatively establishing charitable immunity for non-negligence  torts.  I read the majority as indicating that the Legislature was just indicating that there would be no immunity when there was insurance, whatever the state of the common law on charitable immunity, so that the common law governed, and the SJC remained free to interpret it (see e.g. P27).

The majority is very thorough on the law elsewhere and the legislative history etc., and the other opinions are clear about their views, too, and everyone's reasoning is cogent to me.  There's just one practical result that raises perhaps an unanswerable question for me.

The majority and concurrence agree that the statute is ambiguous.  The concurrence calls the question whether there was protection for intentional torts "close and difficult."  So previously, a charity could have reasonably interpreted the statute the other way, and thought that it could avoid liability by not having insurance:  the Legislature was saying that charities were immune for any tort liability except if they had insurance.  The language of the statute thus encouraged them not to obtain insurance.  This decision is saying now that charities are liable for intentional torts.  Logically, this means that if they could have gotten insurance for that type of tort, they should have done so., and now they are exposed without insurance for acts preceding the date of the decision.  Oops.

Does mistaken reliance on an interpretation of an ambiguous statute matter?  Should reliance, perhaps widespread, albeit mistaken, be a factor in construing an ambiguous statute?

Perhaps the majority is saying that while the statute was ambiguous, it's fair to impose liability now for past acts for anyone who didn't go get insurance for intentional torts (assuming it could be gotten), given the erosion of charitable immunity elsewhere and the lack of clarity in the statute.  The concurrence could be saying that it's fair at least with respect to the type of intentional tort alleged in the case before it – child sexual abuse.    

In any event, I'm glad that I was getting a massage by the ocean while other people had to deal with these thorny issues.