Though the Heavens Fall

Can Catholic judges be fair when their bishop is on trial? Jay Milano doesn't want to find out the hard way.

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Jay Milano and Stacy Ganor don't believe that Catholic - judges can rule impartially on their racketeering suit. - Walter  Novak
Jay Milano and Stacy Ganor don't believe that Catholic judges can rule impartially on their racketeering suit.
The Catholic League isn't exactly slow to anger. The self-described defender of American Catholics is best known for its comically exhaustive annual reports, which stretch the notion of hatred to include nun Halloween costumes and the swiping of Baby Jesuses from manger scenes. So it was no surprise to attorney Jay Milano when the group denounced him as a "steeple-chasing lawyer" and one of the "inveterate bigots" seeking fame and fortune through clergy sex-abuse cases.

Milano represents five people who claim to have been raped as kids by employees of the Cleveland Diocese. In September, he took the bold step of asking the Ohio Supreme Court to assign their suits to a non-Catholic judge.

Of course the Catholic League would have a problem with that.

Then the Plain Dealer slammed him as well. In one article, a legal expert -- who hadn't read Milano's motion -- compared the lawyer to the bigots who sought to derail John Kennedy's presidential campaign by playing on age-old anti-Catholic prejudices. A subsequent editorial called the motion a "tactless affront . . . worthy of no serious consideration."

But Milano, a former altar boy no longer among the faithful, believes the real affront is that he had to take such an extraordinary step to ensure fairness for his clients. One claims she was raped by an employee of Parmadale, a home for troubled teens. Another says a priest raped him repeatedly over seven years. Yet another client says she was raped by a priest at age 7; she has since suffered from a nervous disorder that causes her to pick at her face incessantly, to the point of requiring surgery. All five say other adults -- in some cases, bishops -- knew what was happening, but looked the other way or warned them to keep quiet.

Milano and co-counsel Stacy Ganor have filed two suits on their behalf. The first involves one alleged victim who says he was sexually assaulted by his school principal and a teacher. The other case -- involving all five victims -- was filed under state racketeering laws, which were designed for use against criminal organizations like the Mafia. Milano hopes this unusual tactic will give him access to personnel and business records that no one outside diocesan leadership has ever seen.

But what's caused the most consternation was his motion to have the matters heard by non-Catholic judges. He took the unusual step after jurists Nancy McDonnell and Christine McMonagle both failed to respond to questions about their connections to the church. State law says judges should reveal personal information that "lawyers might consider relevant . . . even if the judge believes there is no real basis for disqualification."

The mostly Catholic Ohio Supreme Court was not moved. It ruled earlier this month that his motion was "nearly identical" to another, previously rejected.

Except that it really wasn't. The rejected motion stemmed from a suit accusing one priest of molesting a student, according to Ganor. But Milano's case isn't about one predatory cleric, whom even the most devout Catholic might find loathsome. His suit puts the diocese, indeed the entire church, on trial. "The church itself is alleged to be a criminal enterprise and its bishops are alleged to have covered up the rape of children," he wrote in his motion.

Milano likens it to a judge presiding over a case involving his country club or alma mater -- except the connection to one's faith is much deeper. He notes the Catholic belief that the pope, cardinals, and bishops are the successors of Christ's Apostles and "directly linked to the will of God." In his suit, Bishop Anthony Pilla and Auxiliary Bishop A. James Quinn are defendants; they're accused of obstructing justice, tampering with evidence, and intimidating victims and witnesses.

"You shouldn't rule on those people who are the arbiters of your morals," Milano argues. "A Catholic judge cannot escape an inherent bias."

Other lawyers have taken a similar approach. Former Palm Beach Bishop Anthony O'Connell, who was accused of abusing a seminarian, was sued under the federal Racketeering Influence and Corrupt Organizations Act (RICO). But Milano seems to be the first to seek a blanket prohibition against the assignment of a Catholic judge.

The very notion provokes fears of chaos in the judicial system.

"Once you start down this slippery slope, where does it end?" asks Judge Timothy McGinty, the only jurist to respond to Scene's numerous interview requests. "Do we do this with Democrats and Republicans? . . . If the Indians are being sued, do we have to bring in a Yankees-fan judge?"

To Milano, this trivializes the situation, not to mention the judges' spiritual depth.

The church expects Catholic public officials to put their faith first. When the Vatican reiterated its opposition to same-sex marriages last month, the statement included a stern warning to politicians: "The Catholic lawmaker has a moral duty to express his opposition . . . To vote in favor of a law so harmful to the common good is gravely immoral."

And evidence that a judge's faith can affect rulings came shortly after Milano's motion was rejected. On October 8, a federal appeals court threw out the 51-year sentence of a Hamilton County man convicted of raping an 8-year-old girl. The trial judge said she'd based her decision on a Bible verse.

Still, Milano has hit a wall. As far as the courts are concerned, the bias issue is resolved. He now plans to seek class-action status for the corrupt-organization suit, which would allow the more than 1,000 victims identified by County Prosecutor William Mason's investigation to join as plaintiffs.

Yet there remains the question of whether he's hurt his chances by publicly questioning judges. McGinty says no. Milano says he had no choice.

"What else could I do?" he asks, shrugging. He then points to something scribbled on the dry-erase board in his office: Fiat justicia, ruat coelum. "Let justice be done, though the heavens fall."

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