Robert Minton's, verified motion to disqualify trial judge and suggestion of disqualification

17 January 2003


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.  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.  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. 
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.  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.  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


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