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.