Claims that the judge hearing the class action against the Catholic Diocese of Covington is a close friend of a consultant for the plaintiffs threaten to overwhelm the real issues of the lawsuit. The suit has been filed on behalf of people claiming priests in the diocese sexually abused them.
For that reason Boone Circuit Judge Jay Bamberger should hand the case off to another judge.
Lawyers for the diocese say Mark Modlin, hired by the plaintiffs as a trial consultant, is one of Bamberger's best friends. In an affidavit asking for Bamberger's removal, the attorneys for the diocese describe how the judge and Modlin were golfing together in the 1980s when Modlin was critically injured in a golf-cart accident. Bamberger organized a group of lawyers to care for the injured man while he was incapacitated, according to the claims.
But diocesan lawyers Mark Guilfoyle of Crestview Hills and Carrie Huff of Chicago say this isn't just about what happened more than a decade ago. They have subpoenaed current phone records of the judge and Modlin in what they say is an attempt to show the two talked in the hours before and after rulings that Bamberger has made in the case.
The implication is that the judge is having improper conversations with a representative of one side of the case that lawyers for the other side are not privy to.
That implication infuriated the judge, who quashed the subpoenas and threatened the lawyers with contempt. They also are facing a hearing before a judge in Hamilton County on whether they should be sanctioned for seeking subpoenas in Ohio, after Bamberger quashed them in Kentucky.
Guilfoyle and Huff have asked the Kentucky Supreme Court to remove Bamberger from the case.
Bamberger says he is the only circuit judge in Boone County and if he disqualified himself from every suit in which he knows somebody, he would never be able to hear any cases. He granted unprecedented class action status to the victims in the case and now accuses the diocese of "forum shopping" to keep him from hearing the trial.
Whatever the motivation, the open antagonism between the judge and diocesan lawyers has poisoned the atmosphere of this case. The appearance of impartiality is key to public confidence in the fairness of our courts.
Judge Bamberger should not wait for the Supreme Court to rule. He should step aside now.
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