By Jim Hannah
The Cincinnati Enquirer

BURLINGTON - Veteran Northern Kentucky Judge Joseph "Jay" Bamberger is retiring in January, raising the question of who will preside over the nation's first class-action suit against a Roman Catholic diocese.

Bamberger's decision to step down from the bench after two decades makes the Covington Diocese's attempt to have him disqualified from the class-action case moot. Diocesan attorneys had argued Bamberger was biased against the church.

Chief Justice of the Kentucky Supreme Court Joseph Lambert said a special judge will soon be assigned to the case, one of the most significant civil cases currently working through Kentucky's courts. Typically, that appointment would be made by Campbell Circuit Judge William Wehr, the chief regional circuit judge in Northern Kentucky.

The announcement of his retirement and subsequent removal from the diocese suit came as a surprise in light of how vigorously Bamberger fought to stay assigned to the class-action case.

Diocesan attorney Carrie Huff of Chicago's Mayer, Brown, Rowe and Maw and her co-counsel, Mark Guilfoyle of Deters, Benzinger & LeVelle of Covington, had petitioned Lambert to remove Bamberger because he is a close friend of plaintiff's consultant Mark Modlin. Lambert said Monday afternoon that Bamberger's retirement makes any such ruling unnecessary.

Modlin was seriously injured in a golf-cart accident while playing golf with the judge in 1987. Bamberger took a lead in organizing his care, recruiting people to take turns helping Modlin when he was recovering. The judge testified in a civil suit arising from the wreck that Modlin was one of his two or three best friends, according to court records.

Their attempt to remove Bamberger resulted in a legal feud that landed on the pages of the weekly National Law Journal when they tried to get an Ohio court to subpoena Bamberger's phone records.

Bamberger responded by threatening to hold the diocesan attorneys in contempt of court. He also vigorously defended himself against allegations of bias against the church. He accused the diocese of "forum shopping" after he ruled against the diocese by granting class-action certification.

"We sought Judge Bamberger's removal from the case only to obtain a fair and impartial judge," Huff said Monday afternoon. "Judge Bamberger has decided to remove himself from the case rather than wait for the chief justice to rule. We stand by everything we submitted to the chief justice, and we are confident that a fair and impartial judge will now be appointed to hear this case."

Plaintiffs' attorney Stan Chesley of Cincinnati's Waite, Schneider, Bayless & Chesley has said challenging the judge's fairness has been "absurd."

"I have great respect for Judge Bamberger and I respect his wishes to retire," Chesley said Monday. "We are going to move forward with the case. It doesn't change anything."

The process to choose Boone and Gallatin counties' next circuit judge will begin Jan. 5 when Bamberger officially retires.

A judicial nominating committee, headed by Lambert, will select up to three names and forward them to Gov. Ernie Fletcher. Fletcher will then have 60 days to make the appointment.

E-mail jhannah@enquirer.com