Judge May Hear More Church Cases

By Kevin O'Connor
Times Argus [Vermont]
July 26, 2006

Vermont's Catholic Church has lost its fight to bar a judge from presiding over 22 upcoming priest misconduct lawsuits.

The statewide Diocese of Burlington had sought the removal of Chittenden Superior Court Judge Ben Joseph from its cases after he oversaw a record $965,000 settlement in an initial lawsuit this spring.

But the state's chief administrative judge, Amy Davenport, denied the church's request Tuesday after reviewing court videotape of Joseph's dealings with the diocese.

"While the diocese may disagree with Judge Joseph's legal analysis, and while the rulings were adverse to the diocese, there is no indication that the decisions were based on favoritism towards the plaintiff or antagonism towards the diocese," Davenport wrote in a 10-page decision.

"Even though the rulings are numerous and significant in terms of their adverse impact on the diocese's case, they are insufficient to overcome the presumption that Judge Joseph acted with honesty and integrity."

The church had claimed Joseph's rulings in the civil case of Michael Gay versus the Rev. Edward Paquette jeopardized the diocese's ability to receive a fair trial in the future.

Gay, a 38-year-old South Burlington man, was prepared to testify that Paquette "sexually abused and sexually exploited" him from ages 10 to 12 at Burlington's Christ the King Catholic Church. But the diocese offered Gay a $965,000 settlement just hours before a jury was to hear opening arguments in April.

Church lawyer David Cleary has said the diocese had little choice but to settle because the judge had an "undisclosed agenda" and "threatened" his client on at least two occasions.

Davenport disagreed.

"If anything, Judge Joseph bent over backward to provide both parties with a fair opportunity to be heard and exhibited remarkable patience in dealing with the myriad issues raised by this case," she wrote.

"Other claims of personal bias towards the diocese, such as the claim that Judge Joseph 'coerced' the diocese into settling the case rather than proceeding to trial, do not fairly characterize the record, even if the diocese truly believes them."

"It was the diocese's decision to settle rather than go forward with the trial or appeal. To attempt to blame that decision on Judge Joseph after the fact is completely without merit."

After the settlement, Joseph lifted a gag order on the case, leading to a torrent of headlines reporting the church knew Paquette had molested boys in two states when it assigned him to parishes in Rutland in 1972, Montpelier in 1974 and Burlington in 1976.

The diocese, facing 15 more lawsuits against Paquette, has questioned how it will find an impartial jury to hear future cases. Davenport didn't address Joseph's removal of the gag order. But she said his calling for one in the first place was an "unusual step," as most cases don't have them.

Cleary, who has criticized many of Joseph's rulings for months, voiced disappointment with the decision.

"I think I understand what the judge is saying, but it does not mean that I necessarily agree with her," the Rutland lawyer said. "I have not had a chance to discuss it with my clients yet to determine what course of action we will follow from here."

The decision pleased Burlington lawyer Jerome O'Neill, who is representing all of the accusers.

"The diocese's motion to disqualify Judge Joseph is part of a larger strategy," O'Neill said in a statement. "First to try to intimidate judges to rule in its favor; second to convince potential jurors that the courts are treating the diocese unfairly."

"Judge Davenport squarely rejected the diocese's efforts to intimidate Vermont's judges," O'Neill continued. "Her decision shows that the diocese's motion had no basis in either law or fact. In a word, it was frivolous."

The diocese faces 15 more lawsuits against Paquette and one lawsuit each involving former Vermont priests James Dunn; the late Edward Foster; James McShane, the subject of a $120,000 settlement in 2004; George Paulin, the subject of a $20,000 settlement in 2003; and two cases against Alfred Willis, the subject of a $150,000 settlement in 2004.

Also, O'Neill has filed one lawsuit involving two other Vermont priests yet to be named publicly.

In the next case to be heard by the court, Neil Morrissette, 47, of Newport, alleges that Paulin sexually abused him when he was a 13-year-old member of his hometown St. Mary Star of the Sea Church in 1971. Court officials say the trial could start as soon as Sept. 1.

Just because Joseph can continue with the church cases doesn't necessarily mean he will. Joseph is scheduled to preside over courts in Franklin and Grand Isle counties for a year starting in September, although his assignment also includes at least three days a month at Chittenden Superior Court.

County and state court officials couldn't say Tuesday whether Joseph would continue with the church cases after his new assignment, although Davenport's decision referred to the following quote from U.S. Supreme Court Justice Antonin Scalia: "It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendants."

Neither Joseph nor Davenport returned a reporter's calls seeking comment Tuesday.

The recusal request is just one way the church has been trying to defend itself. The diocese also is suing the United States Fidelity and Guaranty Co. in U.S. District Court in Burlington, saying the church held a comprehensive liability insurance policy in the 1970s and wants the company to pay for claims on sexual abuse that occurred then.

Contact Kevin O'Connor at


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