IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
SECOND DISTRICT
ROBERT MINTON,
Petitioner,
vs. Case No. 2D-03-__________
L.T. Case No. 00-5682-Cl-il
ESTATE OF LISA MCPHERSON, by and
through the Personal Representative,
DELL LIEBREICH, CHURCH OF
SCIENTOLOGY FLAG SERVICE
ORGANIZATION, JANIS JOHNSON,
ALAIN KARTUZINSKI and
DAVID HOUGHTON, D.D.S.,
Respondents.
_______________________________________/
PETITION FOR WRIT OF PROHIBITION OR CERTIORARI
Petitioner, Robert Minton ("Minton"), hereby petitions this Court for the
issuance of a writ of prohibition prohibiting the Respondent, the Honorable
Susan
F. Schaeffer, Sixth Judicial Circuit Court Judge ("Judge Schaeffer"), from
presiding over Case No. 00-5682-Cl-i 1, pending in the Circuit Court for
Pinellas County. Alternatively, Minton seeks the issuance of a writ of
certiorari quashing the order of Judge Schaeffer "dismissing" Petitioner's
motion to disqualify her and refusing to rule on the legal sufficiency thereof.
I. INTRODUCTION
This Petition concerns Judge Schaeffer's treatment of Petitioner's Verified
Motion to Disqualify Trial Judge and Suggestion of Disqualification (the
"motion" or 'motion to disqualify"). Judge Schaeffer dismissed Minton's motion
to disqualify without ruling on its legal sufficiency, contrary to the
requirements of Fla.R.Jud.Admin. 2.160 and controlling case law. Instead, Judge
Schaeffer purported to require Minton to obtain leave of court in order to file
his motion to disqualify. Judge Schaeffer relied upon a previous order issued by
her that had abated a counterclaim pending against Minton. (A-i, p. 2). ~ The
order of abatement required that any party seeking to take action regarding the
counterclaim must first request leave of court. (A-7). Absent such permission,
Judge Schaeffer determined that the motion to disqualify was a "nullity." (A-i,
p. 6).
Minton's motion to disqualify was legally sufficient and refusal to grant it was
error. Judge Schaeffer's odd determination that she (the very judge who Minton
believed was biased and prejudiced against him) must rule on whether Minton may
file a motion to disqualify defeats the entire purpose of the motion and the
law's command that even the appearance of judicial impropriety should be
avoided. The mere fact that Judge Schaeffer concocted this requirement rather
__________________________
References to the Appendix will be "A- ". The Appendix accompanies this Petition
in accordance with Fla.R.App.P. 9.220.
2
than ruling on the motion independently shows bias and prejudice necessitating
disqualification. Also, Judge Schaeffer's intentional delay in dismissing the
motion until the time period within which a motion must be filed demonstrates
her bias and prejudice and constitutes nothing more than an attempt to construct
a procedural bar to her own disqualification. Finally, not only did Minton move
to disqualify Judge Schaeffer for bias and prejudice but he also made a
suggestion of disqualification for interest pursuant to Florida Statutes §
38.02. Judge Schaeffer completely ignored this as well.
II. BASIS FOR INVOKING COURT'S JURISDICTION
This court has jurisdiction pursuant to Art. V, § 4(b), FLA. C0NsT. and
Fla.R.App.P. 9.030(b)(3) and 9.100. Review of a trial court's denial of a motion
to disqualify is generally by prohibition. See MacKenzie v. Super Kids Bargain
Store, Inc., 565 So. 2d 1332, 1333 (Fla. 1990); Department of Agriculture and
Consumer Services v. Broward County, 810 So. 2d 1056, 1057 (Fla. 1st DCA 2002);
Martin v.State, 804 So. 2d 360, 362 (Fia. 4th DCA 2001) rev, denied 819 So. 2d
139 (Fla. 2002): Shuler v. Green Mountain Ventures, Inc., 791 So. 2d 1213, 1214
(Fla. 5th DCA 2001); and State, ex. rel. Morgan v. Baird, 660 So. 2d 328, 329
(Fla. 2d DCA 1995). However, where no specific matter is presently pending
before the court, certiorari has been held to be the proper remedy. See Rucks v.
Florida, 692 So. 2d 976, 977-8 (Fla. 2d DCA 1997).
3
III. FACTS ON WHICH PETITIONER RELIES
Respondent, Estate of Lisa McPherson, by and through the Personal
Representative, Dell Liebreich ("McPherson"), sued Respondent, Church of
Scientology Flag Service Organization ("Church"), and others, alleging claims
for wrongful death. Church countersued McPherson and added additional parties,
including Minton.
Following a January 12, 2003 order of Judge Schaeffer, Minton, in accordance
with Florida Statutes § 38.10 and Fla.R.Jud.Admin. 2.160, moved for
disqualification of Judge Schaeffer for bias and prejudice, setting* forth in
his motion the existence and source of Minton's well-founded fear that he would
not receive a fair trial or hearing from Judge Schaeffer. In addition, Minton
also "suggested" that Judge Schaeffer was disqualified for interest pursuant to
Florida Statutes § 38.02. Minton's Verified Motion to Disqualify Trial Judge and
Suggestion of Disqualification disclosed that Judge Schaeffer had ordered the
Church to add Minton as an additional party defendant to its counterclaim.
However, by prior orders of Judge Schaeffer, the counterclaim had been severed
__________________________
2 The facts set forth in Minton*s motion must be taken as true. See Department
of
Agriculture and Consumer Services v. Broward C*ounty, 810 So. 2d 1056, 1058
(Fla. 1St DCA 2002); J&J Indus fries v. Carpet Showcase of Tampa Bay, Inc., 723
So. 2d 281, 282 (Fla. 2dDCA 1998).
4
from the wrongful death claim for purposes of tria} and then later (after Minton
was added as a party) abated pending the trial of the wrongful death claim.
In November of 2002, after the close of the evidence in a month-long omnibus
hearing relating to the Church's requested dismissal of the Plaintiffs claims,
Judge Schaeffer determined that the case should be mediated and scheduled a
series of separate meetings with counsel for each of the parties in the case in
order to assist in the mediation of the case. Though not a party to the wrongful
death claim, Minton was ordered to participate. (A-4). In separate conferences
with each of the participants* lawyers, Judge Schaeffer discussed her view" of
the case and the various pending motions so that the parties would have an
understanding as to how she would proceed if the matter did not settle and what
her analysis was concerning the case and the pending matters, including the
omnibus hearing.
On November 18, 2002, counsel for Minton attended a pre-mediation conference
with Judge Schaeffer, as ordered. At that time, Judge Schaeffer offered her
assessment of the evidence and, more particularly, her evaluation of Minton's
potential exposure for contempt or perjury charges. She advised that it was her
assessment that she would not recommend to the State Attorney's Office that any
criminal contempt or perjury charges be commenced against Minton (or Mr. Dandar,
counsel for the Plaintiff) as based on her review of the evidence there
5
would be insufficient evidence for the State Attorney to be successful in
prosecuting any such charge. At this conference, Judge Schaeffer also strongly
suggested that in order to assist in settling the case that Minton waive his
claim against the Plaintiff or her lawyer, Mr. Dandar, for over $2 million in
loans.
Mediation took place on November 27, 2002. Minton attended with counsel and
fully participated. A tentative settlement was concluded. Thereafter, for
reasons outside the control of Minton, the tentative settlement broke down and
ultimately was not consummated. The litigation continued.
On Sunday, January 12, 2003, Judge Schaeffer entered an Order Denying the
Defendants' Omnibus Motion For Terminating Sanctions and Other Relief. (A-\7).
Counsel for Minton received a copy of the order on Monday, January 13, 2003. The
omnibus motion had resulted in an extended evidentiary hearing before Judge
Schaeffer, encompassing 35 days of testimony, a massive amount of evidence, and
extensive memoranda of law. By prior order of Judge Schaeffer, Minton was
prohibited from participating in the hearing on the grounds that he was not a
party to the motion (though a party to the action).
Judge Schaeffer's January 12, 2003 order was a complete reversal of what she had
indicated to counsel (that no referral would be made to the State Attorney's
Office) before the mediation was unsuccessful; this created within Minton a
well-founded belief that he was being punished for the settlement not
6
concluding or that he had become the "fall guy" for the settlement not
concluding -
-that the order was in retaliation for the settlement falling through.
Furthermore, despite Judge Schaeffer precluding Minton from examining witnesses,
objecting to testimony or evidence, or presenting argument before the court at
the omnibus hearing, a large part of the order made findings of fact and
conclusions relating to Minton and the claims he possessed. Judge Schaeffer made
a number of conclusions concerning whether: (i) she would believe Minton as a
witness; (ii) Minton had engaged in criminal activity; and (iii) Minton entered
into a contract with other parties. Compounding Minton's fear was the fact that
most, if not all, of Judge Schaeffer's findings and conclusions were not
relevant or necessary to her decision on the Church's omnibus motion, a fact
Judge Schaeffer herself acknowledged in the order. In essence, Judge Schaeffer
volunteered a number of gratuitous findings regarding Minton who, for all
intents and purposes was unrepresented. All this also resulted in Minton's
well-founded belief of bias and prejudice of Judge Schaeffer against him.
Minton's motion also set forth further evidence of Judge Schaeffer's bias and
prejudice. Her order spent considerable time and fully explored an issue Judge
Schaeffer described as "the $500,000 UBS check," an issue Judge Schaeffer
________________________
3 Obviously, these gratuitous findings were intended to influence persons and
matters not before the court.
7
recognized was irrelevant to the matters before her. "Where the $500,000 came
from, whether it was from Minton or someone else, is absolutely irrelevant to
any issue in the wrongful death case. The further issue as to whether Mr. Dandar
knew it came from Minton, and told him to lie about it and not tell the Church
about this $500,000 check, is similarly irrelevant, and thus immaterial to any
of the issues in the wrongful death case." (A-l, p. 13). Despite Judge Schaeffer
deciding that it was irrelevant to the wrongful death proceeding, she spent over
23 pages in her order reviewing this issue and making a series of factual
findings and comments concerning Minton. Of course, Minton had no input in that
decision nor was he permitted to participate in it. Minton believed that Judge
Schaeffer's gratuitous fact finding on issues she herself had declared to be not
germane to the case before her evidenced her bias and prejudice against him, as
well as demonstrating that she had prejudged the merits of the counterc
Although Judge Schaeffer had previously advised Minton's counsel at her mandated
pre-mediation conference that there was insufficient evidence to warrant a
referral to the State Attorney's Office, Judge Schaeffer now reversed course and
in several instances stated that she would be "referring the matter" to the
State ~ Attorneys Office. Apparently, Judge Schaeffer had predetermined that
Minton committed certain criminal violations (including federal income tax
violations over
8
which a state judge has no jurisdiction) without any opportunity for Minton to
be heard. As a result, Minton had a well-founded belief that Judge Schaeffer had
been and would continue to be biased and prejudiced against him in any future
matters she might hear relating to Minton, including the counterclaim, and any
contempt proceedings the court indicated it intended to initiate in the event
the State Attorney did not go forward with perjury charges against Minton.
From Minton's reading of the order, it appeared that Judge Schaeffer determined
that Minton was lying because two of the witnesses testifying contrary to him at
the omnibus hearing were members of The Florida Bar. Minton believed that she
gave undue deference to two members of the Bar and this coupled with her
membership in the same organization, demonstrated that Judge Schaeffer was
biased and prejudiced against him for his claim that a member of The Florida Bar
engaged in unethical conduct and suborned perjury. Evidence supporting this
belief could be seen at page 17 of Judge Schaeffer's order (A-7) that stated as
follows:
Who is telling the truth here? The easy way out is to say you can't tell, and
the Church, therefore, fails in their burden of proof. However, Minton has
accused Dandar, a member of the Florida Bar, of perjury and suborning perjury.
It would seem to be my duty, both as a trial judge in this case and as a proud
member of the Florida Bar, to decide who's telling the truth and who is not, if
I can.
9
(emphasis supplied). In other parts of the order, it also appeared that Judge
Schaeffer gave greater credence to Mr. Dandar and Mr. Merrett because they were
lawyers and members of The Florida Bar.
In the January 12, 2003 order, Judge Schaeffer concluded that Minton would lie
and cheat when it came to his money and that he had cheated the United States
government in the amount of taxes he had paid. The basis for this gratuitous
conclusion was that Minton invoked his Fifth Amendment privilege when it came to
identifying where certain monies came from, how he filled out certain tax
returns, where he had bank accounts, and supplying tax returns. Judge Schaeffer,
on page 19 of her order (A-7), noted as follows:
What is clear to anyone who attended the Omnibus Hearing is that Minton has
cheated the United States government in the amount of income taxes he has paid
them. He claimed the Fifth Amendment over and over when it came to identifying
from where -- what bank --this $500,000, and all other foreign money he had
brought into this country during the relevant time period, came. He would not
supply his tax returns, claiming the Fifth Amendment. When asked whether he had
checked "'yes"* in the box on Schedule B of his income tax returns which asks
"At any time during (the taxable year), did you have an interest in or a
signature or other authority over a financial account in a foreign country, such
as a bank account, securities account or other financial account?" he claimed
the Fifth Amendment. When asked since he had foreign income, and a foreign bank
account(s), if he supplied the required form TD F90-22. 1 to the U.S. Department
of Treasury to show foreign bank accounts, and much more, which form is
mandatory,
10
or proceedings." It also says, "Disclosure of this information is mandatory.
Civil and criminal penalties, including in certain circumstances a fine of not
more than $500,000, and imprisonment of not more than five years are provided
for failure to file a report, supply information, and for filing a false or
fraudulent report." When asked if he reported this $500,000 and other monies to
be discussed, which he brought into this country from foreign countries, on his
tax return at any time, he claimed the Fifth Amendment. He claimed the Fifth
Amendment as to these matters in at least two depositions, one on September 18,
2001, and one on October 11 and 12, 2001.
(emphasis in original).
Minton believed that Judge Schaeffer had improperly prejudged him based on the
permissible exercise of his Fifth Amendment privilege and that in further
proceedings she would continue to believe he was a criminal based solely on the
exercise of his Constitutional rights. Minton believed that since Judge
Schaeffer had already determined in her mind that he had committed various
criminal offenses, she could not objectively and fairly sit as a judge in any
further proceedings in which he was a party.
Minton believed that Judge Schaeffer, without sufficient factual basis and
without permitting his participation, made a finding that he was required to pay
taxes "on the millions (perhaps as much as a billion) of dollars" (A-7, p. 20).
Minton believed that this "finding" by the court demonstrated Judge Schaeffer's
bias and prejudice and her inability to be impartial in any further proceedings
against Minton.
11
Minton believed that further evidence of Judge Schaeffer's bias and prejudice
was demonstrated when the court in discussing some evidence noted that if she
had been aware of the identity of a certain bank prior to the omnibus hearing,
she "would have asked Minton about it to see if he claimed the Fifth Amendment."
(A-7, p. 28). Minton believed that this demonstrated that Judge Schaeffer was
conducting an investigation of him or acting as a prosecutor rather than as a
neutral aibiter. Minton believed that Judge Schaeffer's bias and prejudice was
demonstrated by her desire to ask him questions merely to see whether or not he
would invoke his Constitutionally guaranteed right against self-4ncrimination.
This demonstrated that Judge Schaeffer had become more than an unbiased arbiter
in the case but was taking sides against him.
In her order, Judge Schaeffer commented on what she believed were inaccuracies
in Minton's testimony in front of another circuit judge. Minton believed that
this again indicated the bias and prejudice of Judge Schaeffer as she made
gratuitous comments and findings regarding testimony in proceedings not before
her.
Judge Schaeffer also indicated that in the event that the State Attorney elected
not to prosecute Minton (based on her referral) that she would issue an order to
show cause against him for unarticulated offenses. Again, Minton believed that
this demonstrated the bias and prejudice of Judge Schaeffer towards
12
him, as even if an independent body (the State Attorney's Office) determined
that Minton should not be prosecuted for what Judge Schaeffer believed was
inappropriate conduct, that she in any event would proceed with the initiation
of criminal proceedings.
Judge Schaeffer's order on the omnibus hearing was entered on a Sunday. In his
motion to disqualify, Minton asserted that this rendered the order void, citing
Higginbotham v. State, 101 So. 233 (Fla. 1924) (judgment and sentence entered on
Sunday is a void); Harrison v. Bay Shore Dev. Co., 111 So. 128 (Fla. 1926)
(judicial proceedings are prohibited on Sunday); and Florida Statutes § 48.20
(prohibiting execution and service of orders on Sunday and providing a private
right of action for damages). Minton asserted in his motion that he believed
that Judge Schaeffer's void order was nothing more than publication of
defamatory falsehoods (knowing that they would be republished at least in part,
by the St. Petersburg Times) made with reckless disregard for their truth or
falsity since they were based on conclusions derived solely from Minton's
invocation of his constitutional privilege. Since Sunday is a non-juridical day
on which no judicial business is proper, Minton believed Judge Schaeffer was not
entitled [to immunity from suit for her tortious conduct and may be liable
for substantial damages to Minton. Furthermore, Minton believes that no
immunity attaches to the statutory cause of action provided for in Fla. Stat.
48.20. Because Minton has potential tort - addenum by Mike]
13
claims against Judge Schaeffer, he asserted that she had a direct pecuniary
interest in seeing Minton discredited, lose valuable rights, or become
incarcerated, and hence, in the outcome of the case before her. A suggestion of
disqualification pursuant to Florida Statutes § 38.02 and Fla.R.Jud.Admin.
2.160(d)(2) was therefore appropriate.
The motion to disqualify was filed on January 17, 2003, duly verified, and
accompanied by an appropriate certification of counsel. (A-2, 3). On the same
date, Judge Schaeffer was provided with a copy of the motion (A-l, pp. 1-2).
Despite the requirement to immediately rule on motions to di~qua1ify~, see
Fuster Escalona v. Wisotsky, 781 So. 2d 1063, 1064-5 (Fla. 2000) and
Fla.R.Jud.Admin. 2. 160(f), Judge Schaeffer intentionally withheld ruling on the
motion until the close of business on January 24, 2003 -- "This court waited
until the close of business Friday, January 24, 2003 to see if Robert Minton
("Minton") would request leave of court.. .." (A-1, p. 2).
January 24, 2003 was a critical date. It was ten days after Minton received
notice of the grounds for disqualification of Judge Schaeffer. Pursuant to
Fla.R.Jud.Admin. 2.160(e), a "motion to disqualify shall be made within a
reasonable time not to exceed 10 days after discovery of the facts constituting
the grounds for the motion." It is apparent that Judge Schaeffer, by
deliberately withholding ruling on the motion until after this time period
elapsed and then
14
treating Minton's timely filed motion as a "nullity," attempted to construct a
procedural bar to her own disqualification.
Judge Schaeffer's dismissal was predicated on the order of September 19, 2002,
which in pertinent part stated as follows:
2. The counterclaim of the Defendant and any matters (including the Plaintiffs
"Counterclaim to Counterclaim"), pleadings, motions or discovery relating
thereto (the "Counterclaim issues") are hereby abated. No further pleadings,
motion practice or discovery relating to the Counterclaim issues shall be filed,
served, instituted or conducted without prior leave of Court and unless the
matter also relates to the litigation of the issues involved in the pending
Complaint. The abatement shall continue until further order of the Court and the
trial of the plaintiffs pending Complaint, which the Court has orally set for
trial in January of 2003.
(A-5, pp. 1-2). Judge Schaeffer apparently reasoned4 that this language in the
abatement order required Minton to obtain her permission to file the motion to
disqualify and that absent permission the motion was a nullity.
IV. NATURE OF RELIEF SOUGHT
Minton requests that this Court issue a writ of prohibition directed to Judge
Schaeffer prohibiting her further judicial involvement in this case.
Alternatively, Minton requests that this Court issue a writ of certiorari
quashing the order of
______________________
4 Judge Schaeffer's reasoning fails to account for her own order directing
Minton to participate in mediation. At the same time Judge Schaeffer is claiming
that he is not a party to the case, Minton was receiving a bill for over
$5,701.66 for a share of the court-appointed mediator's fee. (A-6).
15
Judge Schaeffer that dismissed his timely filed, legally sufficient motion to
disqualify and remanding with directions to grant the motion.
V. ARGUMENT IN SUPPORT OF PETITION
Minton recognizes that mere comments by a trial judge or an adverse ruling are
not enough to establish bias and prejudice mandating disqualification. This
Court is not faced with such a situation. Here the motion amply established bias
and prejudice. Furthermore, the trial judge refused to review the legal
sufficiency of the motion, created an illegal requirement that she had to
authorize the filing of the motion, and then deliberately delayed dismissing the
h~otion~ in order to construct a procedural bar to her own disqualification.
Perhaps most stunning is that Judge Schaeffer apparently has not seen fit, even
in the absence of a motion for disqualification, to recuse herself or act on the
suggestion of disqualification. The appearance of propriety essential to
judicial proceedings and officers demands much more.
A. Standard Of Review
"Allegations in a motion to disqualify are reviewed under a de novo standard as
to whether the motion is legally sufficient as a matter of law." Peterson v.
Askiipious, 2002 Fla. App. LEXJS 19148 *2..3, 28 Fla. L. Weekly 111 (Fla. 4th
DCA 2002). The Supreme Court has held that the standard for determining whether
a motion to disqualify is legally sufficient is whether the facts alleged
16
would place a reasonably prudent person in fear of not receiving a fair and
impartial trial. Whether the motion is legally sufficient is a question of law
and it therefore follows that the proper standard of review is de novo. See
Barnhill v. State, 2002 Fla. LEXJS 1959 *9, 27 Fla. L. Weekly 850 (Fla. 2002). A
disqualification motion's allegations are reviewed under the de novo standard as
to whether the motion is legally sufficient as a matter of law, so that the
appellate court need not defer to the trial court on questions of law. See Amato
v. Winn Dixie Stores/Sedgwick James, 810 So. 2d 979, 981 (Fla. 1st DCA 2002).
The sole task for a trial court upon receipt of a motion to disqualify, and an
appellate court in reviewing the denial of a motion to disqualify, is to
determine whether the motion is legally sufficient. "The judge against whom an
initial motion to disqualify under subdivision (d)(l) is directed shall
determine only the legal sufficiency of the motion..." Fla.R.Jud.Admin. 2.160(f)
(emphasis supplied).
The test to determine whether a motion is legally sufficient requires a
determination as to whether the alleged facts would create in a reasonably
prudent person a well-founded fear of not receiving a fair and impartial trial.
See Barnhill v State, supra.; Rogers v. State, 630 So. 2d 513 (Fla. 1993);
MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990); State,
et rel. Morgan v. Baird, 660 So. 2d 328 (Fla. 2d DCA 1995). It is only when the
facts as alleged in
17
the motion do not meet that burden that the motion is determined to be legally
insufficient. See J&J Industries, Inc. v. Carpet Showcase of Tampa Bay, Inc.,
723 So. 2d 281, 283 (Fla. 2d DCA 1998). A motion is sufficient if the
allegations are neither frivolous nor fanciful. See Department of Agriculture
and Consumer Services v. Broward County, 804 So. 2d 1056, 1059 (Fla. 1st DCA
2002). The sole task on review of a denial of a motion to disqualify "is to
determine the legal sufficiency of the motion based on whether the facts alleged
would have put a reasonably prudent person in fear of not receiving a fair and
impartial proceeding.~1 Smith v. Santa Rosa Island Authority, 729 So. 2d 944,
946 (Fla. 1st DCA 1998).
B. Motion To Disqualify Was Legally Sufficient
Statements by a judge that he or she believes that a party has lied in the case
are sufficient grounds for disqualification.
As a general proposition, a statement by a trial judge that he or she feels a
party has lied in the case is generally regarded as indicating a bias against
the party. Deauville Realty Co. v. Tobin, 120 So. 2d 198 (Fla. 3rd DCA 1960).
More recently, a petition for writ of prohibition was granted because the trial
court, having been presented an affidavit from a party, commented, "If [the
party] were here I wouldn't believe him anyway." Brown v. St. George Island,
Ltd. 561 So. 2d 253 (Fla. 1990). A district court discussed a similar judicial
comment about a party*s believability ("as thin as a balloon"), and granted a
petition for writ of prohibition. Owens-Corning Fiberglas Corporation v.
Parsons, 644 So. 2d 340 (Fla. 1st DCA 1994).
18
Campbell Soup Company v. Roberts, 676 So. 2d 435, 436 (Fla. 2d DCA 1995). As
shown above, Judge Schaeffer's order is replete with comments and findings
indicating that Minton was a liar and that she did not believe Minton.
In addition, a trial judge taking an about face on an earlier decision made in a
case is also a sufficient basis for disqualification. In State ex rel. Morgan v.
Baird, 660 So. 2d 328 (Fla. 2d DCA 1995), the trial judge initially decided that
he would delay sentencing in a series of three criminal cases until after a
resolution of the third case. After the third case resulted in a mistrial, the
trial judge scheduled the, first two cases for sentencing and when reminded of
his decision to delay sentencing until the third case was resolved, the trial
judge indicated he had heard all the evidence and was prepared to proceed. The
defendant moved to disqualify the judge who then denied the disqualification
motion. This court reversed, holding:
the judge agreed to delay sentencing until the disposition of the third case.
According to the motion's allegations, the judge's decision on whether to impose
a habitual offender sentence was contingent, in part, on the outcome of the
third case. The decision to proceed, without waiting for a retrial and in light
of his comments during the jury deliberations, created in Morgan a well-founded
fear that he would be habitualized based on the evidence in the third case, but
not on a verdict.
Id. at 330. This court went on to hold that it is not a question of how the
judge feels, rather it is a question of what feeling resides in the movant's
mind and the
19
basis for such feeling. Id. The question of disqualification focuses on those
matters from which a litigant may reasonably question a judge's impartiality,
rather than the judge's perception of his ability to act fairly and impartially.
Id.
Gratuitous comments by the court can also create a well-founded basis for bias
and prejudice in the mind of a litigant. In Wargo v. Wargo, 669 So. 2d 1123 (F
Ia. 4th DCA 1996); the trial court made gratuitous comments that were
disparaging of the husband's position prior to hearing any evidence. The
appellate court held that: ,
.....the remarks may have signaled a predisposition, rather than an impression
formed after reviewing the evidence. The judge began to rule on the issues
presented without even giving counsel a chance to present argument. She then
reversed her earlier ruling that the motion for contempt would not be heard,
which had been agreed to by the wife*s counsel and held petitioner in contempt.
Id. at* 1125. This is quite similar to the present case where the judge who has
not yet been presented with a trial of the counterclaim, has made numerous
gratuitous remarks concerning Minton, and reversed an earlier position regarding
the quality of the evidence relating to Minton. This created a well-founded fear
on the part of Minton that he would not receive a fair hearing before Judge
Schaeffer.
In Owens-Corning Fiberglas Corporation v. Parsons, 644 So. 2d 340 (Fla. 1st DCA
1994), the trial court made comments at a hearing concerning the litigant that
it "is not up front, it*s not candid, it*s not fair." Id. at 341. The issue
before the
20
court at that time was a motion to strike testimony of an expert witness. The
litigant moved to disqualify the trial judge who denied the motion. On a writ of
prohibition, the appellate court reversed finding that the motion to disqualify
was legally sufficient.
We find that the comments made by the trial judge at the hearing would prompt a
reasonably prudent person to fear that he would not receive a fair and impartial
trial before that judge. The sole issue at the hearing was whether Mr. Webber
would be stricken as a witness based on the unavailability of his prior
testimony. . . . Given the issue before the trial court, we find that the trial
judge*s statements were unnecessary for the resolution of that issue and
established a basis for a well-founded fear that OCF would not receive a fair
and impartial trial.
Id. at 342. The same holds true here.
C. Judge Schaeffer's Refusal To Rule On The Motion*s Lega1 Sufficiency Is
Grounds For Disqualification
Judge Schaeffer, in finding the motion to be a "nullity" as opposed to ruling on
its "legal sufficiency," exceeded the scope of the proper inquiry. The only
reason that a motion to disqualify can be denied is that the motion is legally
insufficient. Fla.R.Jud.Admin. 2.160(f). The rule is quite clear in this regard.
"If any motion is legally insufficient, an order denying the motion shall
immediately be entered. No other reason for denial shall be stated, and an order
of denial should not take issue with the motion." Id. Furthermore, "[t]he judge
against
21
whom an initial motion to disqualify under subdivision (d)(1) is directed shall
determine only the legal sufficiency of the motion... ." Id. (emphasis
supplied).
"Whenever an allegation is raised which questions the judge*s neutrality as to
one of the parties, the judge can only pass on the legal sufficiency of the
allegation; if it is legally sufficient, the trial judge must grant the motion
and proceed no further." See Smith v. Santa Rosa Island Authority, 729 So. 2d
944, 946 (FIa. 1St DCA 1998) (emphasis supplied). The Smith court relied on
McKenzie, where that Court held that when a trial judge looks beyond the mere
legal sufficiency of a motion to disqualify, the judge has exceeded the proper
scope of inquiry, and on that basis alone established grounds for
disqualification. McKenzie, 565 So. 2d at 1339. "Our disqualification rule,
which limits the trial judge to a bare determination of legal sufficiency, was
expressly designed to prevent what occurred in this case -- the creation of 'an
intolerable adversary atmosphere' between the trial judge and the litigant." Id.
Simply put, Judge Schaeffer was without any legal authority to refuse to review
the motion for its legal sufficiency. Indeed, her jurisdiction was limited to
solely reviewing the motion for its legal sufficiency. Taking any other action,
particularly finding that the motion was a nullity and requiring Minton to seek
her permission to disqualify her, was not only erroneous but an independent
basis for her disqualification.
22
D. Judge Schaeffer's Refusal To Rule Immediately Is Grounds For
Disqualification
In setting forth the procedures to be followed by a trial court in determining a
motion for disqualification Fla.R.Jud.Admin. 2.160(f) clearly and unequivocally
provides that the motion must be ruled on "immediately." If the motion is
legally sufficient, the judge shall immediately enter an order granting
disqualification. If the motion is legally insufficient, an order denying the
motion must be immediately entered. See Fuster-Escalona v. Wisotsky, 781 So. 2d
1063, 1065 (Fla. 2000).
The Florida Supreme Court has strictly applied the "immediately" requirement
because an allegation of judicial prejudice is always a serious matter. Id. at
1065.
Our comment on the adoption of rule 2.160 emphasizes a trial judge's
responsibility to act quickly on such a motion: "We find the motion [to
disqualify] should be ruled on immediately following its presentation to the
court." Florida Bar re: Amendment to Fla. Rules of Judicial Adinin., 609 So. 2d
465, 466 (1992). When a trial court fails to act in accord with the statute and
procedural rule on a motion to disqualify, an appellate court will vacate a
trial court judgment that flows from that error.
Id.
Not unlike Judge Schaeffer's actions, in Fuster-Escalona, the trial judge did
not immediately rule on a motion to disqualify that had been presented. After a
year had run with no record activity, the court granted the defendant*s motion
to
23
dismiss for lack of prosecution. The Supreme Court in quashing the district
court*s decision found the trial court's failure to immediately address the
motion to disqualify was inconsistent with the relevant statute, rule and case
law. Id. The Court went on to dismiss an argument that the litigant's failure to
request a hearing on his motion to disqualify rendered the motion unavailing.
The Court noted that there was no requirement that the movant request a hearing.
In the present case, Minton did provide Judge Schaeffer with the motion and
related papers.
The Supreme Court noted that the absence of a requirement that the movant
request a hearing "is in stark contrast to the emphasis on the in~imediaéy with
which the rule and case law require a judge to act when presented with such a
motion. The district court, therefore, relied on a non-existent requirement to
undercut the effect of a pending motion to disqualify, which, in turn, allowed
the district court to affirm the trial court's order on the subsequently filed
motion to dismiss." Id. at 1066.
Here the requirement for immediacy was heightened by Judge Schaeffer's holding
the motion hostage until the ten-day period under Fla.R.Jud.Admin. 2.160(e) had
elapsed and then ruling that the motion was a nullity for failing to seek her
prior permission to move to disqualify her. Likewise, Judge Schaeffer attempted
to rely on a non-existent requirement to undercut the pending motion to
disqualify. This in itself warrants disqualification.
24
E. Judge Schaeffer's Nullification Of Minton's Motion Is Absurd
Judge Schaeffer's requirement that Minton first seek her permission to file the
motion to disqualify because of the prior abatement order is not only without
legal support but absurd. Such a requirement would permit the biased judicial
officer to serve as the gatekeeper of motions seeking to disqualify her.
The abatement order provided in pertinent part:
No further pleadings, motion practice or discovery relating to the Counterclaim
issues shall be filed, served, instituted or conducted without prior leave of
Court and unless the matter also relates to the litigation of the issues
involved in the pending Complaint. The abatement shall continue until further
order of the Court and the trial of the plaintiffs pending Complaint, which the
Court has orally set for trial in January of 2003.
(A-5, pp. 1-2).
However, Minton's motion did not necessarily relate to the counterclaim. It
related to Judge Schaeffer's qualification to sit as the trial judge in the
case. Judge Schaeffer unilaterally limited the motion in order to bring it
within the abatement order. Judge Schaeffer apparently reasoned that Minton had
been carved out of the case and was to only be involved in the actual trial of
the counterclaim. If true, several questions emerge, including: (i) why was he
ordered to participate in a pre-mediation conference and told to waive a
$2,000,000 claim to settle the case; (ii) why was he ordered to participate in
the mediation; and (iii) why was he billed a one-third share of the
court-appointed mediator's fees?
25
Fla.R.Jud.Admin. 2.160(b) provides that any party may move to disqualify a trial
judge assigned to the case. The rule does not restrict those who may seek such
relief to one who has an unabated motion, pleading or claim pending before the
court. The rule by its terms is available for any and all parties, see State ex
rel. Brown v. Dewell, 131 FIa. 566, 179 So. 695, 696 (1938), including those
with abated claims against them.
This court faced a similar situation in Rucks v. State, 692 So. 2d 976 (Fla. 2d
DCA 1997). Rucks appeared before the trial court at a contested violation of
probation hearing. The court revoked Rucks' probation and sentenced her to
county jail time. Rucks thereafter filed a motion to disqualify alleging that
she intended to file a motion to mitigate her sentence and felt that the trial
judge would be biased and prejudiced against her in any upcoming hearing in that
regard. In response to the order to show cause, the State argued that Rucks had
not filed a motion to mitigate her sentence and that the absence of any pending
motion rendered Rucks* motion to disqualify (and her subsequent petition for a
writ of prohibition) moot.
On review, this court rejected that argument. "The absence of any pending motion
in a case before the challenged judge may play a role in determining which writ
is utilized to seek redress, but it will not foreclose the provision of relief.
Id. 977. This court went on to note that Fla.R.Jud.Admin. 2.160(h) provides that
upon
26
appointment of a successor judge, the moving party may seek reconsideration of
prior factual and legal rulings by the disqualified judge. "Clearly, then,
Rucks' petition would not be moot even if the State were correct in its
assertion that there is no pending action in her criminal case, for upon the
respondent judge's disqualification and the appointment of a successor, Rucks
would still have the right to seek reconsideration of the disqualified judge's
prior rulings." Id. 978.
In Rucks, this court determined that there need not even be anything pending tbr
a party to avail itself of the disqualification rule. In the present case, there
were and are pending matters involving Minton (some abated, some not). Minton's
motion could not legally have been a nullity. Also, see, Lages v. State, 685 So.
2d 968 (Fla. 2d DCA 1995), where this court held that an attempt to defeat a pro
se litigant's motion to disqualify on the basis that the litigant failed to
provide an attorney's good faith certification with the motion to disqualify as
required by statute and rule was ineffective. It is clear that the courts will
not accept hyper technical arguments to avoid a well-founded fear of bias and
prejudice.
Judge Schaeffer's theory also creates absurd results. Let us assume that Minton
was required to seek the court's permission to file a motion to disqualify.
Would Minton then have to have Judge Schaeffer, whom he thought was biased and
prejudiced against him, rule on whether he could move to disqualify her; or
would Minton be able to file a motion to disqualify Judge Schaeffer from ruling
on
27
his motion seeking her permission to file a motion to disqualify, so to insure
that an unbiased judge made that preliminary determination? Would Minton then
have to seek Judge Schaeffer's permission to file the motion to disqualify her
from ruling on his motion seeking permission to file the motion to disqualify?
When would this cycle end? This demonstrates that Judge Schaeffer's theory lacks
not only any legal basis but also any common sense.5
At a minimum, Judge Schaeffer's gatekeeping requirement creates the perception
that the proverbial fox has been placed in charge of the hen house. If, as Judge
Schaeffer contended, Minton needed to seek her permission via the filing of some
motion, then presumably Judge Schaeffer would have some discretion in whether to
grant or deny that motion. If such is the case, how could Judge Schaeffer in the
eyes of the public fairly rule on that motion? If the granting of the request
would have been merely ministerial then no purpose would be served in requiring
Minton to comply.
Also Judge Schaeffer's requirement would place Minton in the proverbial
Catch-22. What would happen if Judge Schaeffer held the motion for permission to
file the disqualification motion (as she in fact did with the motion to
disqualify) and did not rule on it within the 10-day window of Fla.R.Jud.Admin.
2.160(e)? Would a motion to disqualify filed after she granted permission but
outside the
__________________________
5 Judge Schaeffer has literally created a perpetual motion machine.
28
window comply with the rule or be deemed defective? Minton had no alternative
but to file the motion to disqualify without first seeking permission to do so
from the very judge he was seeking to disqualify.
Permitting the trial judge sought to be disqualified to be the gatekeeper as to
whether a motion to disqualify can even be filed flies in the face of the
purpose and theory behind our statutes, rules and case law regarding
disqualification.
VI. CONCLUSION
In a very lengthy and complex lawsuit a very well-regarded circuit judge became
overly involved in its prosecution and resolution. This is regrettable, but, on
rare occasions, happens. That is why Florida has rules regarding
disqualification. Minton set forth a legally sufficient motion to disqualify
that should have been granted. Judge Schaeffer*s refusal to rule on the legal
sufficiency of the. motion was plainly wrong. The manner in which she refused to
rule on the legal sufficiency of the motion independently justifies her
disqualification as well. The writ of prohibition should be granted and Judge
Schaeffer disqualified from further proceedings in this cause.
29
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing and the
accompanying Appendix have been furnished by U.S. Mail to all parties on the
attached service list this 6th day of February, 2003.
ANTHONY S. BATTAGLIA, ESQUIRE
Fla. Bar No. 4173
STEPHEN J. WEIN, ESQUIRE
Fla. Bar No. 212814
TIMOTHY W. WEBER, ESQIJIRB
Fla. Bar. No. 86789
BATTAGLIA, ROSS, DICUS & WEIN, P.A.
P.O. Box 41100
St. Petersburg, Florida 33743-1100
Telephone No. (727) 381-2300
Facsimile No. (727) 343-4059
ATTORNEYS FOR PETITIONER
CERTIFICATE OF COMPLIANCE
Counsel hereby certifies that the foregoing Petition complies with the font
requirements of Fla.R.App.P. 9.100(1).
ANTHONY S. BATTAGLIA, ESQUIRE
30
4
IN THE CIRCUIT COURT IN AND FOR PINELLAS COUNTY, FLORIDA
CIRCUIT CIVIL CASE NO. 00-5682-Cl-I I
ESTATE OF LISA MCPHERSON vs. CHURCH OF SCIENTOLOGY, etc., et al.
SERVICE LIST
Kennan C. Dandar, Esquire
Dandar & Dandar, P.A.
1715 N. Westshore Boulevard, Suite 750
Tampa, Florida 33607
Attorney for Plaintiff
Luke Lirot, Esquire
112 East Street, Suite B
Tampa, Florida 33602
Attorney for Plaintiff
Bruce G. Howie, Esquire
Ludin, Howie and Werner
5720 Central Avenue
St. Petersburg, Florida 33707
Attorney for Robert Minton
Ronald P. Hanes, Esquire
Trombley & Hanes
707 N. Franklin Street, 10th Floor
Tampa, Florida 33602
Attorney for Janis Johnson
Douglas J. Titus, Esquire
George & Titus
P.O. Box 3240
Tampa, Florida 33601-3240
Attorney for Alain Kartuzinski
Kendrick L. Moxon, Esquire
Moxon & Kobrin
1100 Cleveland Street, Suite 900
Clearwater, Florida 33755
Attorney for Church of Scientology
Michael Lee Hertzberg, Esquire
Eric Lieberman, Esquire
740 Broadway, 5th Floor
New York, New York 10003-9518
Attorneys for Church of Scientology
Thomas McGowan, Esquire
Thomas H. McGowan, P.A.
150 - 2nd Avenue North, Suite 870
St. Petersburg, Florida 33701
Attorney for Stacy Brooks
Lansing C. Scriven, Esquire
442 West Kennedy Boulevard, Suite 280
Tampa, Florida 33606-1464
Attorney for Michael Garko
Helena K. Kobrin, Esquire
1100 Cleveland Street, Suite 900
Clearwater; Florida 33755
Attorney for David Houghton
Samuel D. Rosen, Esquire
Paul, Hastings, Janofsky & Walker, LLP
75 East 55th Street, Room 503
New York, New York 10022
Attorney for Church of Scientology
The Honorable Susan F. Schaffer
Circuit Court Judge
545 First Avenue North, Room 417
St. Petersburg, Florida 33701
Lee Fugate, Esquire
Morris Weinberg, Esquire
Zuckerman, Spaeder, LLP
101.E. Kennedy Boulevard, Suite 1200
Tampa, Florida 33602
Attorneys for Church of Scientology
31
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