Diocese, Plaintiffs Square off over Judge

By Louis Porter
Times Argus
July 6, 2006

Montpelier — A Vermont judge should be blocked from overseeing civil cases involving alleged sexual abuse by priests because he has shown "bias and prejudice" against the church, according to the statewide Diocese of Burlington.

"The threats that were issued from the bench" warrant the removal of Chittenden Superior Court Judge Ben Joseph, David Cleary, a lawyer for the church, said on Wednesday.

But lawyers arguing for the plaintiffs in more than 20 pending lawsuits against the church over alleged abuses said the diocese is trying to intimidate the judiciary.

"To disqualify Judge Joseph here would be a very dangerous thing to do," said Jerome O'Neill, who called the church's motion "a hatchet job" and "an attack on judicial independence."

In fact, the judge's past experience and knowledge make Joseph the logical choice to work on such cases, and if the church doesn't like his rulings they should appeal them, O'Neill said.

But Cleary said Joseph is trying to take oversight of the cases "to the exclusion of other judges."

"Out of the chute we were faced with someone who was going to fast-track these cases" to the detriment of the church's defense, he said.

The administrative judge who will rule on the motion, Amy Davenport, did not immediately issue a decision. But several times, Davenport told Cleary she disagreed with his arguments.

For instance, Joseph threatened to admit more background evidence if the church did not agree with the plaintiff's version of events, Cleary said.

"That is a threat plain and simple. It was the plaintiff's way or the highway for us," Cleary said.

But Davenport said her review of the evidence showed something quite different — a judge doing his job.

"I don't really agree with you," she said from the bench. "I see that as a judge simply saying 'Here is my ruling if you go this way, here's my decision if you go that way,'" she said.

The decision in the case likely will be based largely on videotapes of hearings and transcripts of the proceedings. But O'Neill said those transcripts — written by a private reporting service hired by the church — are inaccurate.

As for the tapes, many of them have blank screens or do not show Joseph. That could be critical in a ruling that apparently relies as much on tone and expression as the words spoken.

The motion to remove Joseph from the upcoming cases is based on his statements during an earlier case that he also oversaw.

That lawsuit by Michael Gay, a former altar boy in the 1970s, against the church and Rev. Edward Paquette, was settled for nearly $1 million this spring just before trial. More than a dozen other lawsuits against Paquette have been filed, and other cases against a handful of other Vermont priests have been brought.

O'Neill said the church may accomplish its goal whether its current motion is successful or not.

"They don't like the rulings," O'Neill said. "Nobody forced them to settle the Gay case."

O'Neill argued that the motion to remove Joseph is inappropriate because it is based on his actions in the previous case, not pending ones.

However Davenport disagreed with that as well. Since taking over her current job last fall, she has heard many similar requests for judges to be recused from cases because of past dealings with the accused, Davenport said.

Joseph declined to recuse himself from the cases when the church filed the motion, but he passed the request on to Judge Davenport.

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