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In a rare move, two defense attorneys subpoenaed the phone records of a Kentucky judge and a plaintiff’s expert in two state courts in an attempt to prove the judge was biased against them. Thus far what they’ve received for their efforts is an order to appear in both courts for show cause hearings on why they should not be held in contempt. Boone County Circuit Judge Jay Bamberger is the only judge in the nation-without the consent of the litigants-to certify a class action in a case involving an alleged cover-up by a diocese of the sexual misconduct of priests. Harvey v. Roman Catholic Diocese of Covington, No. 03-CI-00181 (Boone Co., Ky., Cir. Ct. 2003). “All my client and I want is a fair, impartial arbiter-is that asking too much?” asserted Carrie Huff of Chicago’s Mayer, Brown, Rowe and Maw, who represents the Covington Diocese. Her co-counsel, Mark Guilfoyle of Deters, Benzinger & LaVelle of Covington, Ky., prepared the subpoenas. Plaintiffs’ attorney Stan Chesley of Cincinati’s Waite, Schneider, Bayless & Chesley, asserted that challenging the judge’s fairness was “about the most absurd thing I’ve ever heard. The case was going on for 11 months without any problems until they brought in Huff.” The diocese had asked the judge to recuse himself because he is a close friend of plaintiff’s consultant Mark Modlin. 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. The judge testified in a civil suit arising from the accident that Modlin was one of his two or three best friends, according to a 1993 transcript of those proceedings. In a transcript of a hearing in Bamberger’s court held on Nov. 13, the judge wanted to know why defense counsel had waited until he had certified the class to raise the issue of Modlin’s friendship. Guilfoyle pointed to recent developments, including Modlin’s expanded role in the case and a 2003 Kentucky Supreme Court opinion that took a “harsher stance against the propriety of judges . . . having close personal relationships with others who may be in a position to influence their decision-making.” Kentucky v. Brandenburg, 114 S.W.3d 830. Chesley accused the defense of “forum shopping” and argued that Modlin had been involved from the onset of the case. The hearing was not required under Kentucky law and came after Bamberger declined to recuse himself. The diocese filed affidavits with the chief justice of the Kentucky Supreme Court, the state’s process for appealing a judge’s refusal to recuse himself or herself. The subpoenas that are the subject of the show cause hearings were an attempt to find out how often Modlin and Bamberger had been talking during critical pretrial junctures, according to the affidavits. The Kentucky subpoena was quashed by Bamberger and the Ohio subpoena withdrawn. Defendants opposed class certification of the cases that involve, depending on which side is asked, between 150 to 1,000 claimants who were allegedly abused by at least 21 priests in more than 20 parishes during a 47-year period. Defense counsel are due in Bamberger’s court on Dec. 4. On Dec. 12, they are also due in Hamilton County Court of Common Pleas in Ohio, the state where they believed the telephone company kept its phone records, to show cause why they should not be held in contempt. Post’s email address is [email protected].

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