A Vermont child sex abuse lawsuit is drawing national attention for whether it should be sealed or even tried in the state, which recently eliminated restrictions on filing such claims.
Martin A. Giroux alleges he was 15 when Midwest businessman Paul J. Foley Jr. flew him by private plane to Vermont one summer weekend in 1984 as part of a pattern of taking the teenager on expensive trips throughout the United States and Canada, “all for the purpose of preparing (him) so that he could sexually assault (him) at will,” the plaintiff says in court papers.
For decades, Giroux hasn’t been able to pursue a lawsuit, as Vermont was one of many states restricting the filing of such claims to a confined time period after the alleged misconduct. Then the state Legislature this past session repealed Vermont’s statute of limitations on introducing civil actions involving child sex abuse, allowing accusers to go to court at any time.
Giroux and his lawyer, Jerome O’Neill of Burlington, filed the case this September in Chittenden Superior Court, where state statutes mandate paperwork be sealed until a defendant can receive and attempt to dismiss the charges.
In response, Foley and his attorney, Lisa Shelkrot of Burlington, asked that the case be transferred to U.S. District Court, as both the New Jersey plaintiff and Kansas defendant live outside Vermont.
The approved federal move took the case out of state jurisdiction that called for its sealing. Not wanting all the details public, the defendant filed and a judge granted a request to continue to follow Vermont statutes that shield the paperwork.
That caught the attention of UCLA law professor Eugene Volokh, who writes a blog for the website reason.com.
“Does a Vermont statute mandating such sealing apply in cases that are being litigated in federal court?” Volokh went on to write about a state law he notes is “very much an exception.”
“The normal rule is that civil lawsuits are decided in open court, with openly filed papers, so that the public can monitor what the courts are doing,” the professor continued.
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Seeing the issue as one of open access called for by the U.S. Constitution, Volokh took the unusual step of filing a court motion to intervene, arguing the case is governed by federal rather than state law.
“Even if the Vermont statute did apply in federal court, it would be trumped by the First Amendment,” his motion stated in part. “The public has a presumptive right of access to complaints, court orders, motions to seal, and the docket.”
That caused Judge Christina Reiss to recently unseal Volokh’s motion and several other documents that outline the case and, on Tuesday, release the initial complaint with several redactions of other allegations not involving the plaintiff.
Volokh also is questioning the defendant’s call to dismiss a trial in Vermont since neither Giroux nor Foley have any continuing connection to the state and no known potential witnesses are here.
Foley, now 84 and living in his longtime home of Wichita, argues his “alleged contacts with Vermont — a weekend in the Green Mountain State over 35 years ago — are insufficient for him to reasonably anticipate being hauled into court in Vermont.”
“The burden on defendant,” the motion continues, “is substantial. As an ailing, non-ambulatory octogenarian defendant will find long distance travel to Vermont extremely difficult. His travel difficulties are compounded by his need for 24-hour assistance with his healthcare and activities of daily living, rendering litigation in Vermont highly burdensome, expensive and potentially detrimental to his health.”
The defendant’s motion says a trial in the state wouldn’t benefit any of its residents but instead simply Giroux, as Vermont “may be the only forum in which plaintiff’s claim is not barred” by a statute of limitations.
In comparison, “other interested states — Kansas, for example — have a substantial interest in freeing their citizens from litigating stale claims and in giving individuals repose for ancient breaches of law,” the defendant’s motion concludes.
In response, the plaintiff’s lawyer says if the defendant’s arguments were true, Vermont wouldn’t be able to charge out-of-staters for committing other crimes.
O’Neill, a former federal prosecutor, has secured settlements for more than 50 clients alleging child sex abuse over the past quarter-century. The majority of accusers have sued Vermont’s Roman Catholic Diocese, which has paid out more than $30 million for priest misconduct.
The Burlington attorney has five new lawsuits pending against the state’s largest religious denomination and is considering several more. In the meantime, he’s waiting for U.S. District Court to decide the next steps involving Giroux v. Foley.
“We think there’s a very strong case for bringing it here,” O’Neill said, “simply because the abuse took place here.”
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