IN THE CIRCUIT COURT IN AND FOR PINELLAS COUNTY, FLORIDA CIRCUIT CIVIL CASE NO. 00-5682-CI-11 ESTATE OF LISA MCPHERSON, by and through the Personal Representative, DELL LIEBREICH, Plaintiff, vs. CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, JANIS JOHNSON, ALAIN KARTUZINSKI and DAVID HOUGHTON, D.D.S., Defendants. _________________________________/ AND RELATED COUNTERCLAIM. _________________________________/ ROBERT MINTON'S, VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE AND SUGGESTION OF DISQUALIFICATION The Counterdefendant, ROBERT MINTON, by and through his undersigned attorneys, pursuant to Fla. Stat. ß 38.10 and Fla. R. Jud. Ad. 2.160, moves for the disqualification of Judge Susan F. Schaeffer for prejudice and in support thereof would show that Minton fears that he will not receive a fair trial or hearing because of specifically described prejudice or bias of Judge Schaeffer as set forth in more detail below. Minton and his counsel have the utmost respect for Judge Schaeffer and this motion is filed most reluctantly. However, based on what has transpired, Minton has an abiding belief that Judge Schaeffer has bias or prejudice against him such that she cannot be an impartial judge of him in this matter. Furthermore, Minton suggests that Judge Schaeffer is disqualified pursuant to Fla. Stat. ß 38.02. As the Court's Order of January 12, 2003 on its face indicates that it was executed on a Sunday it is void. This results in Minton having potential tort claims for the statements made in the void order. As such, Judge Schaeffer has an interest in the outcome of this litigation in which Minton, a potential adverse party to her as a result of the void Order, is a Counterdefendant. This is being filed as a result of the Court's January 12, 2003 Order. Minton's fear of bias and prejudice and Judge Schaeffer's interest in the outcome of the litigation stem from the entry of that Order. 1. The litigation of the above-styled cause has been pending for a considerable period of time. In November 2002 after the close of the evidence in the Omnibus Hearing, 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 main case, Minton was ordered to participate. Judge Schaeffer, in these separate conferences discussed her "view" of the case and the various pending matters so that the parties would have an understanding as to how she would be preceding if the matter did not settle and what her analysis was concerning the case and the pending matters. 2. On November 18, 2002, counsel for Minton had their pre-mediation conference with Judge Schaeffer. At that time, Judge Schaeffer offered her assessment of the evidence and in particular her evaluation of Minton and his potential exposure for contempt and perjury. Judge Schaeffer advised counsel that it was her assessment that she would not recommend to the State Attorneys Office that any criminal contempt or perjury charges be commenced against Minton (or Mr. Dandar), as based on her review of the evidence there would be insufficient evidence for the State Attorney to be successful in any such charge against anyone. At this conference, Judge Schaeffer also strongly suggested that in order to assist in settling the case that Minton waive his claim against the Estate or Mr. Dandar for over $2,000,000 in loans made to the Estate or Mr. Dandar. 3. Mediation of the above-styled cause took place on November 27, 2002. Minton attended with counsel and fully participated. A tentative settlement was concluded. 4. For reasons outside of the control of Minton, the mediation/settlement thereafter broke down and the settlement tentatively agreed to among the parties was not consummated. The litigation continued. 5. The Court's Order Denying the Defendants' Omnibus Motions Determining Sanctions and Other Relief was executed by Judge Schaeffer on Sunday, January 12, 2003. Counsel for Minton received a copy of it on Monday, January 13, 2003. This Order is a complete reversal of what Judge Schaeffer indicated to counsel, and Minton has a well-founded belief that he is being punished for the settlement not concluding or has become the "fall guy" for the settlement not concluding; i.e., that this Order was in retaliation for the settlement falling through. As such, Minton has a well-founded belief that Judge Schaeffer is biased or prejudiced against him. See, State ex. rel. Morgan v. Baird, 660 So2d 328 (Fla. 2d DCA 1995) (reversed trial court's denial of disqualification where judge declined to follow his prior agreement to delay sentencing until after disposition of another case). 6. The Order in question rules on the Defendant, Church's Omnibus Motion, which encompassed 35 days of testimony, a massive amount of evidence, and extensive memoranda of law. By order of Judge Schaeffer, Minton was prohibited from participating in the hearing on the grounds that he was not a party to the motions (though a party to the litigation). 7. Despite the Court's precluding Minton from examining witnesses, objecting to testimony or evidence, or arguing before the Court, a large part of the Order made findings of fact relating to Minton and claims he possesses. Judge Schaeffer reached multiple conclusions concerning whether (i) she would believe Minton as a witness, (ii) Minton had engaged in criminal activity and (iii) Minton entered into contracts with other parties, _all_without_any_input_or_participation_by_Minton_. Compounding these problems is the fact that the Court's Order recognized that many of the findings and conclusions reached by the Court were not relevant or necessary to her deciding the Church's Omnibus Motion. The Court engaged in extra-judicial or gratuitous rulings against, for all intents and purposes, an unrepresented person. All of this also has resulted in Minton's belief of the bias and prejudice of Judge Schaeffer against him. 8. Further evidence of this bias and prejudice can be gleaned from the Court's Order, as follows (the following is intended to be representative and not all inclusive): A. The first issue resolved by the Court in its Order was the "Loans/Donations to the Estate/Dandar." As the Order noted, the Court did not permit this matter to be fully pursued; therefore, she made no findings regarding this issue. While she did this in connection with the first issue, the second issue, "the $500,000 UBS Check," was fully explored by the Court, though the Order noted that the same rationale should have been applied to this issue as well. "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." (Order p. 13). Despite deciding that it was irrelevant to the wrongful death proceeding, the Court spent over 23 pages in the Order reviewing this issue and making a series of factual findings and comments concerning Minton. The Court apparently determined to discuss this issue because the "cat was out of the bag" (Id. p.14) and that Mr. Dandar, counsel for the Estate, agreed to such. Of course, Minton had no input in that decision, nor was he permitted to participate in it. Minton believes that Judge Schaeffer's gratuitous fact finding on issues she herself declared not to be germane to the case before her evidences her bias and prejudice against him and the fact that she has pre-judged the merits of the Counterclaim without permitting Minton to be heard. B. Although previously advising that there was insufficient evidence, Judge Schaeffer in several instances indicated that she would be "referring" this matter to the State Attorneys Office. Apparently the Court has predetermined that Minton committed certain criminal violations, including Federal Income Tax violations (as will be discussed later), without the input of Minton. Under these circumstances, Minton believes that Judge Schaeffer has been and will continue to be biased and prejudiced against him in any future matters that Judge Schaeffer must hear relating to Minton, including the Counterclaim and any contempt proceedings the Court has indicated it intends to initiate if the State Attorney does not go forward with perjury charges. C. From Minton's reading of the Order, it appears that the Court, at least in part, determined that Minton was lying because two of the witnesses testifying contrary to him were members of The Florida Bar. Obviously, Judge Schaeffer is also a member of The Florida Bar, and Minton believes that the Court gave undue deference to the two members of the Bar and that coupled with her membership in the same organization again results in Minton's belief that Judge Schaeffer is biased or prejudiced against him for claiming that a member of The Florida Bar engaged in unethical conduct and suborned perjury. Evidence for this belief can be seen at page 17 of the Court's Order that states 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. (Emphasis supplied). Also, see, Order pp. 18, 19 and 23 where Judge Schaeffer apparently gave greater credence to Mr. Dandar and Mr. Merrett because they were lawyers and members of The Florida Bar. D. Judge Schaeffer, in her Order, concluded that Minton would lie and cheat when it comes to his money and that he cheated the United States Government in the amount of income taxes he has paid. The overwhelming basis for this gratuitous conclusion is that Minton invoked the Fifth Amendment 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, at page 19 of her Order, 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 P 90-22.1 to the U.S. Department of Treasury to show foreign bank accounts, and much more, which form is _mandatory_, he claimed the Fifth Amendment. This form says the "principal purpose for collecting this information is to assure maintenance of reports where such reports or records have a high degree of usefulness in criminal, tax, or regulatory investigations 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 believes that Judge Schaeffer has improperly pre-judged him based on his permissible exercise of Fifth Amendment privileges and that in further proceedings Judge Schaeffer will continue to believe Minton is a criminal based solely on the exercise of his constitutional rights. Minton believes that since Judge Schaeffer has already determined in her mind that he has committed various criminal offenses she cannot objectively and fairly sit as a judge in any further proceedings involving him. E. Minton believes 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." (Order p. 20). Minton believes that this "finding" by the Court demonstrates Judge Schaeffer's bias and prejudice and her inability to be impartial in any future proceedings against Minton. F. Minton believes further evidence of Judge Schaeffer's bias and prejudice is demonstrated on page 28 of the Order when the Court, in discussing some of his deposition testimony, noted that the Church may have either stumbled onto or knew about the source of Minton's foreign money. The Court went on to state; "If I [the Court] had known this [the bank's name] before the Omnibus Hearing, I [the Court] would have asked Minton about it to see if he claimed the Fifth Amendment." Minton believes that this demonstrates that the Court was on an investigation against him, acting as a prosecutor rather than as a neutral arbiter. Minton believes that the Court's bias and prejudice is demonstrated by the Court's wanting to ask him questions merely to see whether or not he would invoke his constitutionally guaranteed right against self-incrimination. Minton believes that this demonstrates that the Court became more than an unbiased arbiter in the case, but was taking sides against him. G. The trial court in its Order at pages 51 and 52 commented on what the Court believed were inaccuracies in Minton's testimony in front of another circuit judge. Minton believes that this again indicates the bias and prejudice of Judge Schaeffer as she made gratuitous comments and findings regarding testimony and proceedings not before her. H. Judge Schaeffer at page 58 of her Order indicated that in the event the State Attorney elects not to prosecute Minton, then she will issue an order to show cause against him for unarticulated offenses. Minton believes this again shows the bias and prejudice of the Judge towards him in that even if an independent body, the State Attorneys Office, determines that Minton should not be prosecuted for what Judge Schaeffer believes was inappropriate conduct that she in any event will proceed with the initiation of criminal proceedings. 9. The Order in question reveals that it was entered on January 12, 2003, a Sunday. As a result, the order is plainly void. See Higginbotham v. State, 101 So. 233 (Fla. 1924) (judgment and sentence entered on Sunday is void); Harrison v. Bay Shore Dev. Co., 111 So. 128 (Fla. 1926) (judicial proceedings are prohibited on Sunday); see also Fla. Stat. ß 48.20 (prohibiting service of orders on Sunday and providing a private right of action for damages). Minton believes Judge Schaeffer?s publication of defamatory falsehoods in the void Order (knowing that they would be republished, at least in part, by the St. Petersburg Times) were 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. Clearly, the 60 plus page, gratuitous and extra judicial comments of Judge Schaeffer on issues not germane to the proceeding, Minton believes, can only be interpreted as intended to a wider audience. Since Sunday is a nonjuridicial day, Minton believes that Judge Schaeffer is 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. ß 48.20. Because Minton has potential tort claims against Judge Schaeffer, the latter has a direct pecuniary interest in seeing Minton discredited, lose valuable rights, or become incarcerated, and hence, the outcome of the case before her. As such, a suggestion of disqualification is likewise appropriate. See, Fla. Stat. ß 38.02 and Fla. R. Jud. Ad. 2.160(d)(2). 11. Based upon all of the foregoing Minton has a well-founded fear and belief that Judge Schaeffer is biased and prejudiced against him. WHEREFORE, the Counterdefendant, ROBERT MINTON, hereby moves that Judge Schaeffer be disqualified in the above-captioned cause and that the Court take no further action in this case until such time as it has ruled on the motion for disqualification and suggestion of disqualification. I, ROBERT MINTON, do hereby swear that the foregoing statements are truthful and accurate and made under oath. ______________________________________ ROBERT MINTON STATE OF NEW HAMPSHIRE COUNTY OF ROCKINGHAM The foregoing instrument was acknowledged before me this day of January, 2003, by ROBERT MINTON, who is personally known to me or who has produced _____________________________________as identification and who did take an oath. ______________________________________ NOTARY PUBLIC Print Name:_____________________________ My Commission Expires: CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to all parties on the attached service list, this ________ day of January, 2003. _____________________________________ ANTHONY S. BATTAGLIA, ESQUIRE Fla. Bar No. 4173 SPN 1923 STEPHEN J. WEIN, ESQUIRE Fla. Bar No. 212814 SPN 43400 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 COUNTERDEFENDANT ROBERT MINTON 020371/299433 IN THE CIRCUIT COURT IN AND FOR PINELLAS COUNTY, FLORIDA CIRCUIT CIVIL CASE NO. 00-5682-CI-11 ESTATE OF LISA MCPHERSON vs. CHURCH OF SCIENTOLOGY, etc., et al. SERVICE LIST Kennan G. Dandar, Esquire Dandar & Dandar, P.A. 1715 N. Westshore Boulvard, Suite 750 Tampa, Florida 33607 Attorney for Plaintiff Michael Lee Hertzberg, Esquire Eric Lieberman, Esquire 740 Broadway, 5th Floor New York, New York 10003-9518 Attorneys for Church of Scientology Luke Lirot, Esquire 112 East Street, Suite B Tampa, Florida 33602 Attorney for Plaintiff Thomas McGowan, Esquire Thomas H. McGowan, P.A. 150 - 2nd Avenue North, Suite 870 St. Petersburg, Florida 33701 Attorney for Stacy Brooks Bruce G. Howie, Esquire Ludin, Howie and Werner 5720 Central Avenue, St. Petersburg, Florida 33707 Attorney for Robert Minton Lansing C. Scriven, Esquire 442 West Kennedy Boulevard, Suite 280 Tampa, Florida 33606-1464 Attorney for Michael Garko Ronald P. Hanes, Esquire Trombley & Hanes 707 N. Franklin Street, 10th Floor Tampa, Florida 33602 Attorney for Janis Johnson Helena K. Kobrin, Esquire 1100 Cleveland Street, Suite 900 Clearwater, Florida 33755 Attorney for David Houghton Douglas J. Titus, Esquire George & Titus P.O. Box 3240 Tampa, Florida 33601-3240 Attorney for Alain Kartuzinski 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 Kendrick L. Moxon, Esquire Moxon & Kobrin 1100 Cleveland Street, Suite 900 Clearwater, Florida 33755 Attorney for Church of Scientology Lee Fugate, Esquire Morris Weinberg, Esquire Zuckerman, Spaeder, LLP 101 E. Kennedy Boulevard, Suite 1200 Tampa, Florida 33602 Attorneys for Church of Scientology |