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  Judge Rebuffs Recusal Request

By Kevin O'Connor
Rutland Herald [Vermont]
January 25, 2007

http://www.rutlandherald.com/apps/pbcs.dll/article?AID=/20070125/NEWS/701250362/1004

The state's administrative judge has rejected the Vermont Catholic Church's second attempt to disqualify a lower-court judge who's presiding over more than two dozen priest misconduct lawsuits.

The statewide Diocese of Burlington sought the removal of Chittenden Superior Court Judge Ben Joseph on two occasions last year, most recently after Joseph was about to decide whether church lawyer William M. O'Brien of Winooski should be sanctioned for failing to share three decades of personnel records with accusers.

Vermont Administrative Judge Amy Davenport this week not only denied the church's latest request but also scolded the lawyers involved with it.

"The recusal and disqualification process is intended to help maintain high standards of ethics and professionalism," Davenport wrote in a seven-page decision. "It does not create an opportunity for attorneys to behave in an unseemly manner toward each other, the judiciary, and the profession generally."

Joseph was supposed to hold a hearing Nov. 22 on whether the diocese and O'Brien, one of its lawyers, should be sanctioned for failing to share the complete personnel files of the Rev. George Paulin, a former Ludlow pastor, with a man suing him for child sexual misconduct.

In 2004, O'Brien had handed over a portion of the paperwork, saying "this was all the diocese had at this time." But last fall, facing a call for punishment if it didn't produce the rest, the diocese unveiled 27 years of records it said had been misfiled and just found.

Joseph ordered a hearing, saying "I think there's been some wrongdoing here, but I don't know who did it. And I don't know the scope of it, and I don't know how serious it is in the context of the case. I haven't made any decisions with that regard."

O'Brien, hearing the word "wrongdoing," believed the judge already had made up his mind. On the morning of the Nov. 22 hearing, the lawyer stopped the proceedings by filing a motion to bar Joseph from considering sanctions.

The diocese had tried unsuccessfully to disqualify Joseph last summer, after he oversaw a record $965,000 settlement against the church last spring in the first of a string of priest misconduct lawsuits now pending.

In the second recusal request, O'Brien sought to bar Joseph under Vermont statute that says "a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."

Davenport, in reviewing the facts, didn't see a problem.

"Taken in context, Judge Joseph's use of the word 'wrongdoing' did not imply that he had prejudged who, if anyone, was responsible for the failure to produce the missing records," she wrote in her decision this week. "Even if the failure to produce these records was due to inadvertence or innocent mistake, it is not unreasonable for a judge in these circumstances to characterize as 'wrongdoing' the failure to timely produce records."

Davenport, in addition to rejecting the disqualification request, also admonished the lawyers involved with it. She wasn't happy when Burlington lawyer Jerome O'Neill, representing the plaintiff in the misconduct case, speculated why the church was "judge shopping." She was more upset when Burlington lawyer Ritchie Berger, representing O'Brien, alleged that Joseph had "baited a trap" against the diocese.

"An accusation by an attorney against a judge of this gravity made so publicly with such little support in the record is deeply disturbing," Davenport wrote. "Vermont practitioners should be expected to conform to higher standards of professionalism than is evident in the litigation of this disqualification motion."

In response, Berger offered a statement on behalf of himself and O'Brien: "We are understandably disappointed with the decision. All we have requested is for the motion to be decided by a judge who has not prejudged the issue. Now we will proceed to vigorously contest the allegations made in the plaintiff's motion."

O'Neill, for his part, called for a quick return to the priest misconduct cases: "Delay revictimizes our clients. We want these cases resolved on the merits as soon as it can be done. This decision is one more important step in pushing aside the delays and making that happen."

Chittenden Superior Court has yet to reschedule the hearing postponed by the recusal request.

Contact Kevin O'Connor at kevin.oconnor@rutlandherald.com.

 
 

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