IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT

POLISH ROMAN CATHOLIC ST. STANISLAUS PARISI-I, et aI.,

Relators,

vs.

THE HONORABLE BRYAN L. HETTENBACH, Circuit Court Judge, Twenty-Second Judicial Circuit,

City of st. Louis, Missouri,

Respondent.

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) FILED UNDER SEAL )

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) No. ED 93551 )

) Circuit Court Case No. 0822-CC07847 )

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MOTION REQUESTING RECUSAL OF JUDGE

CqMES NOW Respondent, through counsel, in accordance with the Rules of

Professional Conduct (Preamble and Rule 1.3) and reluctantly and respectfully requests

pursuant to Rule 2.03, Canon 3, E(1)(a) that Judge Lawrence E. Mooney recuse himself

from this proceeding. In support, Respondent states:

1. Rule 2.03, Canon 3, E(1)(a) provides in relevant part,

(1) A judge shall recuse in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer ...

2. This case involves a dispute between the Archbishop of st. Louis and the

Relator Polish Roman Catholic St. Stanislaus Parish ("St. Stanislaus").

3. st. Stanislaus, through its pastor, Marek Bozek, also a Relator in this matter, has taken a public position that is contrary to the teachings of the Roman Catholic Church relating to the participation in the sacraments of the Church by persons who are in active homosexual relationships. See the documents attached hereto as Exhibit l.

4. In the motion to disqualify filed by Relators, St. Stanislaus has provided correspondence relating to this issue authored by Roger Krasnicki, whose actions are at the heart of the present matter before this Court. See Relators' Petition, Exhibit 13.

5. On October 2; 2007, Judge Mooney wrote a letter to Archbishop Raymond L.

Burke, a copy of which is attached hereto as Exhibit 2, on judicial letterhead, wherein he declined an invitation to attend the annual Law Day Mass hosted by a Plaintiff in the underlying case, the Archdiocese of st. Louis, stating, "Because of the Catholic Church's chronic abuse of gays and lesbians, I do not feel welcome in your church."

6. This letter shows that Judge Mooney's "impartiality might reasonably be questioned" under Canon 3, E(I)(a). This Canon is mandatory. Hence, Judge Mooney is required to recuse himself and the Preliminary Order in Prohibition should be vacated.

WHEREFORE, in no way impugning Judge Mooney's ability to hear, with unquestioned impartiality, other cases coming before him, counsel must respectfully request, in the interest of maintaining and fostering respect for our legal system, that Judge Mooney recuse himself in this important matter before the Court.

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Dated: October 21, 2009

Respectfully submitted,

GRA Y, RlTTER & GRAHAM, P.C.

B~8_~

Ma rice B. Graham, MBE # 18029 701 Market Street, Suite 800

S1. Louis, MO 63101-1826

(314) 241-5620 mgraham@grgpc.com

Attorney for Respondent and Greensfelder, Hemker & Gale, P.e.

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and accurate copy of the foregoing was sent by U.S. mail and electronic mail, postage prepaid, this 21st day of October, 2009, to:

The Honorable Bryan 1. Hettenbach Judge. of the Twenty-Second Judicial Circuit

Division 11

10 North Tucker

st. Louis, MO 63101

Richard B. Scherrer, Esq. Thomas B. Weaver, Esq. George M. von Stamwitz, Esq. Winston E. Calvert, Esq. Armstrong Teasdale LLP

One Metropolitan Square, Suite 2600 st. Louis, MO 63102

Bernard Huger, Esq. Mary Ann 1. Wymore Abby 1. Risner

Greensfelder, Hemker & Gale, P.C. 2000 Equitable Building

10 South Broadway

st. Louis, MO 63102

Attorneys for Defendant Polish Roman Catholic St. Stanislaus Parish

Kenneth K. Vuylsteke, Esq. Fox & Vuy lsteke LLP

110 E. Lockwood, Suite 150 St. Louis, MO 63119

Attorneys for Plaintiffs

Attorney for Defendants John Baras, William Bialczak, Marek Bozek, Richard Lapinski, Janice Merzweiler, Stanley Novak, and Joseph Rudawski

Michael George Attorney at Law

11647 Gravois Road, Suite 100 St. Louis, MO 63126

Attorney for Roger Krasnicki

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Dear Parishioners and Friends,

As a Catholic priest I am often called "Father." Being a relatively young person, for a long time I have felt somewhat uncomfortable with this title, maybe realizing that the depth of the spiritual journey of many people from all my parishes is something that I can only admire and aspire to. However, in recent weeks and months I have been finding myself using the metaphor of the family more frequently than ever. I guess it just grows on you. After hearing it and saying it so many times, one cannot help but start thinking of the Church in terms of a family, especially when one speaks of a Parish family. As a parish priest I have baptized many infants and children with so much hope and potential before them. As a parish priest I have witnessed many marriages and share the joys of love that is ready to conquer all obstacles. Unfortunately, I have also listened to stories of spousal and family abuse, when one of the spouses, more often the wife, faces an extremely painful dilemma: faithfulness to the vows and commitment of marriage or protection of oneself and one's children. No matter how destructive divorce appears to be, there are instances when it is a legitimate moral choice, especially when the physical and/or psychological health and well being of children is endangered. In some cases, remaining with the abusive spouse enables him or her to continue the abuse and perpetuates the circle of violence by exposing children to such an abuse. Sometimes the spouse has the moral obligation to take his or her children with him or her and leave the abusive spouse.

Unfortunately, the Roman Catholic family can today be described as dysfunctional, toxic, or abusive. For decades we have allowed the men who claim to be our shepherds to abuse us, our sisters and brothers, and our children. The scandal of the sexual abuse of minors and the even bigger scandal of how it was covered up by a number of our bishops is only one, even if the most provocative example, of such an abuse. However, even if those heinous crimes never happened, there exists a pattern of abuse that the "silent giant," that is the laity, have tolerated for generations, if not centuries. By quiet resignation and indifference of the 99% of the Church' members, the abuse has been allowed to become accepted as a part of the everyday life of the Roman Catholic family. Just as for centuries the hierarchy had been persecuting scientists and activists disagreeing with its geocentric vision of the universe or with its quiet acceptance of slavery (both coming out of a literal reading of the Bible) - today such persecution is directed toward women who are refused their right to receive all seven sacraments including the sacrament of Holy Orders, toward divorced and remarried people, toward priests who wish to continue their ministry and at the same time pursue the blessings of married life, toward lesbian, gay, bisexual and transgender members of our family, toward anyone who dares to think and vote contrary to the local bishop's instruction, toward hundreds and thousands of people who witnessed their churches being closed and sold in order to pay for the mistakes of the hierarchy, and toward anyone who is mentioning the spirit of the Second Vatican Council. The list of abuses, unfortunately, can continue almost without end. How much longer can or should the mothers and fathers in our Catholic family

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EXHIBIT

silently tolerate such abuses, and by their indifference enable the abusers? Should we wait until the only ones who are satisfied with their bishops are their wealthy sponsors and those who prefer the pre-Vatican II Tridentine Latin Mass and all its trappings to the accessibility of Mass in the vernacular language? Will we continue to stand silently as the shepherds who have been entrusted with guarding and nurturing the flock act more and more like wolves scattering the flock and driving away many? Do miter and purple vestments authorize anyone to treat us, the members of the family, in the way you would never allow your children to be treated? All of us will have to answer these questions sooner or later.

About three years ago I was called upon by you, the family of St. Stanislaus Kostka Church, to be your shepherd and spiritual leader. After long hours of prayerful consideration and discernment, I decided in December of 2005 to answer this call of a sacramentally-starved congregation. The Board of Directors and I were, as we were warned, excommunicated for basically refusing to let the Parish wither and die. Today, when our Parish family has doubled in size and is thriving, I am faced with another canonical penalty, laicization. I was informed that this penal process will be initiated in my regard due to my "contumacy of schism" and my presence at the ordination to the priesthood of two women through the Roman Catholic WomenPriest movement. Many have asked me why I attended that ordination ceremony last November, knowing how delicate the situation is for both myself and St. Stanislaus Parish. I have only one answer--just as I could not tolerate the abuse St. Stanislaus Parishioners were suffering three years ago, I could no longer tolerate the abuse of my sisters. I could not remain indifferent to the injustice being done to all those women graced by God with the priestly vocation. I could not remain indifferent to the injustice being done to all of us since we are deprived of the priestly ministry of such women. If I am ever to be worthy of the title "Father," I need to stand beside my sisters, my brothers, my children and grandchildren, even if it means standing against my spouse, the Church, that I truly and dearly love otherwise. I believe the time has come for me to stand tall and say clearly "NON POSSUMUS - I WILL NOT ALLOW THAT TO HAPPEN!" If I am to be a "father," for the sake of those entrusted to my care, I have to let the abusers know that I do not condone disrespect and abuse-physical, spiritual, or psychological--of members of my family.

This is why your support and the overwhelming vote in favor of my staying here and implementing the vision I presented to you on February 3cd is so important to me. Because not all could travel to church on that snowy Sunday, I have decided to put this vision in writing here. In place of the personal pronoun "I" which I used on February 3cd, I am using now the plural "We," since you made clear that Sunday that we indeed share this vision. Here it is:

1. We firmly believe and affirm all the dogmas and articles of faith of the Roman Catholic Church. That includes the dogma of Papal Infallibility, as it was proclaimed - when the Bishop of Rome speaks ex cathedra in union with Catholic bishops throughout the world. Our disagreement with the hierarchy is not, as some would like you to believe, about matters of Catholic faith or dogma. Studies of the Church history reveal that, on matters of Church discipline, there is room for respectful dialogue and different viewpoints as these elements of discipline sometimes change over time. Unlike the Polish National Catholic Church, we proudly profess our faith in the Immaculate Conception of the Blessed Virgin Mary, as well as her Assumption.

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2. We are a community that worships according to the Western Rite as expressed in the "Nevus Ordo" proclaimed after the II Vatican Council. We love, respect and will continue our Catholic liturgical heritage.

3. We believe that church leaders should be elected by the people they are to serve, as it was practiced for several early centuries of Church history. Pastors should be chosen by the Parishioners of any given Parish, and Bishops should be chosen by the priests and the laity of any given diocese. St. Ambrose is a wonderful example of such a practice.

4. We believe that the governance of all the temporal goods (property ownership and financial resources) of any Parish or Diocese should be in the hands of the people who constitute that particular faith community and not in the hands of the clergy.

5. We believe that all of the other six sacraments should be potentially available to all Baptized Catholics. We believe that both men and women, upon careful consideration, prayerful discernment, and requisite education, should be allowed to receive the Sacrament of Holy Orders.

6. We believe that diocesan deacons, priests, and bishops should be free to choose their state of life and be allowed to either marry or lead a chaste, celibate life.

7. We believe that the words of Jesus, repeated at the Consecration prayer during each Holy Mass, "take this all of you and eat it" and "take this all of you and drink from it" oblige us to invite all believers to receive Holy Communion. We explicitly welcome all at the Eucharistic table, with no regard to their race, gender, marital status, sexual orientation, or any other extraneous factor. All who believe in their hearts that Our Lord Jesus is truly present in the Eucharistic bread and wine are welcome to partake in this banquet of life.

Contrary to what you might have been told, this vision does not mean that we change our Roman Catholic faith. It is because of our love for the Roman Catholic Church that we strive to do our part to make it more just, more charitable, more Christ-like. Moreover, it is not an issue of promoting a feminist, gay and lesbian, liberal or conservative, Polish, Irish, African-American, or any other agenda. For me it is a very simple but fundamental issue of stepping up and accepting the responsibility that comes from being a "father." It is an issue of bringing an end to the abuse of those I love. If it means my excommunication and laicization, so be it. I shall no longer be silent. So help me God.

Fr. Marek Pastor

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2!l1Hlmmtri <lIourt of ~1.s

EASTI!:RN DISTRICT

IN CHAMBERS LAWRENCf: E. MOONEY, Jut""

ONE POST mACE SQUARE 815 OUVE STREET !.ArNT toms, MISSOURI 63101

October 2, 2007

Most Reverend Raymond L. Burke The Catholic Center

4445 Lindell Boulevard

St. Louis, MO 63108

Dear Reverend Burke,

(314) 539·4300

FAX (314) 539·4339 L.."",.a • .Moo.cyOoo...u..JI1O.gov

r received your invitation to the Law Day Mass. Because of the Catholic Church's chronic abuse of gays and lesbians, r do not feel welcome in your church. decline to attend.

Very truly yours,

Q~o'1~

Lawrence E. Mooney U

LEM:cab

www.oourts.mo.gov

EXHIBIT

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