Diocese Fights Judge's Ruling

By Brendan J. Lyons
Albany Times Union
January 17, 2014

http://www.timesunion.com/local/article/Diocese-fights-judge-s-ruling-5150728.php

Defendant Gary Mercure looks skyward after his trial for the alleged abuse of pre-teens in the mid 80's recessed in Berkshire County Courthouse in Pittsfield Massachusetts February 3, 2011. (Skip Dickstein / Times Union)

The Albany Roman Catholic Diocese, which was ordered by a Vermont judge to turn over nearly 40 years worth of sexual abuse records to a victim who filed a lawsuit, has filed an unusual petition asking a federal appeals court to strike down the ruling and dismiss the case.

The diocese argues that U.S. District Court Judge William K. Sessions III made errors and ignored U.S. Supreme Court decisions when he ruled last year that the Albany diocese can be sued in Vermont by a New York man who was taken across state lines and raped by Gary Mercure, a priest serving up to 20 years in prison for raping Albany-area altar boys.

The U.S. Court of Appeals for the Second Circuit issued an order this week that will put the Vermont case on hold while the panel considers the diocese's petition, which is known as a writ of mandamus. The petition seeks appellate intervention and challenges whether Sessions improperly ruled that the diocese's limited business ties to Vermont were enough to establish jurisdiction in a state. The diocese said the lawsuit was filed in that state because the statute of limitations time-barred any claim being filed in New York.

In the petition, the diocese notes that Sessions "has ordered the production of thousands of documents spanning decades—most notably, all allegations of sexual abuse of minors, and the details of all investigations resulting from such allegations, dating back to 1975. This will require the collection and review of files on thousands of employees maintained in hundreds of locations, at great effort and expense, and calls for the disclosure of highly sensitive private information relating to employees who are not parties to this lawsuit."

The diocese argues that it has no legal ties to the Burlington, Vt., diocese, and therefore cannot be sued in that state for the actions of a rogue priest.

Jerome F. O'Neill, an attorney for the victim, used the diocese's business records to show ties between the neighboring dioceses, including documentation that priests from Albany ministered at parishes in Vermont under authorization from Bishop Howard Hubbard.

Kenneth Goldfarb, a spokesman for the Albany diocese, said: "Bishop Hubbard and the Catholic community are deeply concerned about the well-being of anyone who has suffered abuse at anytime or anywhere."

"The Albany diocese long ago embraced its moral obligation to assist individuals abused at any time by Albany diocese clergy, and we would welcome the opportunity to offer assistance in this case," Goldfarb added. "Since we have received notice that the Second Circuit Court of Appeals has issued a stay of proceedings in this case, the diocese is abiding by the court's decision."

The victim's attorney characterized the petition as a desperate move by the diocese to prevent the release of its clergy abuse records, even though the records would have been kept under seal.

"The Albany diocese will do almost anything to prevent the records of what it knew about its employees' abuse of children from even going to the attorney for a child who unquestionably was molested by one of its priests, much less being made public," O'Neill said. "What does the diocese have to hide? We can anticipate the answer. The petition for the writ of mandamus is another attempt ... to prevent the truth from ever being known."

The 37-year-old victim said he was raped by Mercure in New York, Massachusetts and Vermont beginning in the early 1980s when he was about 8 years old. The statute of limitations in Vermont is not as restrictive as New York's, which prevented any claim or criminal action in this case.

Mercure, 65, a longtime priest for the Albany diocese, is serving 20-plus years in a Massachusetts prison for his 2011 conviction on charges of raping two altar boys — including the alleged victim in the Vermont case — during ski trips to Berkshire County. Mercure is a co-defendant in the Vermont lawsuit along with the Albany diocese.

Mercure has been accused of raping, sexually abusing or exposing himself to at least seven boys beginning in the early 1980s.

blyons@timesunion.com • 518-454-5547