|Former Altar Boy Alleging Sexual Abuse by Priest Seeks New Trial, Recusal of Judge
The 2006 Suit Was Filed by a Man Who Was Serving at Masses As an Altar Boy in 1964 When the Priest Allegedly Began Sodomizing and Raping Him and Another Altar Boy
By David Crowder
April 23, 2009
[motion to recuse]
Lawyers for an El Paso man who was allegedly abused by a priest in the 1960s are asking that the judge who dismissed their lawsuit be recused because he gave money from his political campaign fund to the Catholic Church while the case was pending.
The motion by the anonymous plaintiff in the case, a man in his 50s referred to only as John Doe, was filed Tuesday and seeks to keep County Court-at-Law Judge Javier Alvarez away from the case. (Download copy of motion below)
In January, Alvarez granted the defendants' motion for a summary judgment, dismissing the three-year-old lawsuit. He did so on grounds that the allegations by a former altar boy at Our Lady of the Light were too old and exceeded the time allowed by the statute of limitations in Texas .
"Our point is, you can't have a judge sitting in judgment in a case when he has given money to the defendant while the suit is pending," said lawyer Clark Harmonson who, along with Tommy Gilstrap, represents the former altar boy.
Their client is suing the Catholic Diocese of El Paso and Monsignor Thomas Roland, the supervising priest at Our lady of the Light to whom the plaintiff alleges he went to complain about being abused by Fr. James B. Hay, now deceased.
The suit accuses Alvarez of bias in his comments, actions and rulings against the defendant and cites the contributions as evidence of his close relationship with the Catholic Church in El Paso .
Gilstrap and Harmonson said they learned of the contributions when they checked Alvarez's campaign finance reports after he dismissed their case.
"These campaign finance reports demonstrate that Judge Alvarez had transferred in excess of $8,000 to the diocese, its parishes and related organizations, including substantial sums to the diocese, St. Ignatius Catholic Church, St. Patrick's Cathedral and St. Patrick's Men's ACTS," the suit states.
Of the $8,000, $1,100 was given to the church while Gilstrap and Harmonson's John Doe case was pending, the suit states.
Newspaper Tree put in telephone calls to the lawyers for Alvarez and the defendants, but the lawyer for Roland, Robert Skipworth, was the only one who took a call and agreed to comment.
"In my opinion, there was no impropriety on the part of Judge Alvarez," Skipworth said. "I think they jumped to conclusions about where the money was going.
"It didn't go to the diocese. ACTS is a program in the parishes to assist in the religious development of men and couples. Wives go to some retreats."
Skipworth said his client is being sued because "he is the one they allegedly complained to."
"My client denies it," he said.
Gilstrap and Harmonson are also asking for a new trial and intend to appeal Alvarez's dismissal after action is taken on their motion to recuse him.
In the motion to recuse Alvarez, they complain of a series of rulings that led to the dismissal of their client's case on the defendants' motion for summary judgment, which they claim was granted on short notice without a hearing.
The motions for summary judgment were filed in September and December of last year. The plaintiff's lawyers filed his responses on Jan. 22 of this year.
Alvarez granted the motion on Jan. 26 "a mere four days (two business days) after plaintiff had filed a lengthy response to the motion," the motion for recusal states.
The motion also alleges that Alvarez demonstrated his bias by his demeanor and comments, particularly by a comment he made when the plaintiff's lawyers requested two weeks to respond to a defendants' motion challenging their expert witnesses.
The motion quotes Alvarez as saying it was the plaintiff's right to "spend his money" trying to defend the credentials of the witnesses.
Original allegations against church and priests
Gilstrap's firm has handled 10 lawsuits alleging sexual abuse of children by priests and youth ministers, four of which are still pending.
The 2006 suit against the diocese and Roland was filed by a man who was serving at masses as an altar boy in 1964 when Hay allegedly began sodomizing and raping him and another altar boy.
The suit also alleges that Roland, still an active priest working outside El Paso , engaged in "tortuous conduct" by turning away the plaintiff and the other boy when they came to him with complaints about Hay, threatening them not to tell and then doing nothing to protect them from Hay.
He is sued for allegedly covering up Hays' abuse.
The plaintiff asked that the standard statute of limitations be set aside "because he was emotionally and mentally incapacitated and of unsound mind to bring suit … at the time the causes of action" occurred.
He is suing for monetary damages "for a lifetime of physical, mental and economic injuries" caused by the abuse he suffered at the hands of the two priests and a negligent diocese, the lawsuit states.
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