IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA
GENERAL CIVIL DIVISION
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.,
AND RELATED COUNTERCLAIM.
Case No.: 00‑5682‑CI‑11
CHURCH OF SCIENTOLOGY FLAG SERVICE
ORGANIZATION'S RESPONSE TO MARCH 2312003 ORDER
By Order dated March 23, 2003 (the "Order"), this Court, sua sponte, unabated the counterclaim for the sole, limited purpose of allowing it to proceed to decide Minton's renewed motion to disqualify filed March 5, 2003 as supplemented by the addition of his further, separate ground for disqualification (this Court's March 7 comments), as set forth in Minton's March 10, 2003 Supplemental Memorandum. The Order also invited all parties to submit comments on this and other related matters identified in the Order.
Preliminarily, the Church takes no position on the merits of whether or not Minton's motion to disqualify should be granted. The Church has already made clear in its February 28, 2003 cross‑motion and brief that this Court's January 13 Order has severely prejudiced its ability to get Minton, a key witness on the wrongful death claim, to voluntarily come to Florida to testify at the trial of that claim. However, disqualification will not rectify that because regardless of whether it is this Court or some other judge who will preside over the wrongful death trial, Minton can surely not be expected to voluntarily appear there given the two swords this Court has placed over his head in the January 13 Order. That is precisely why the Church has moved to "unsever."
Respecting the sua sponte limited unabatement, the Church believes that it exacerbates, rather than ameliorates, the present procedural morass. Here, while we take no position on the merits of Minton's disqualification motion, Church counsel believes he is duty bound to inform this Court that limited, rather than complete, unabatement clearly violates both the letter and spirit of the Second DCA's February 19 Order on Minton's petition for writ.
Specifically, upon that petition, the Second DCA could have simply affirmed this Court's January 27, 2003 Order on the grounds that Minton had not complied with the September 19th Order, OR it could have directed this Court to hear the disqualification motion on the merits despite such noncompliance, OR it could have denied Minton's petition for writ, without prejudice, with the direction that he comply with the September
19th Order. The Second DCA did none of these. Instead, its February 19th Order provided, in clear and explicit language, that because the counterclaim had been abated, the time for Minton to seek disqualification would not begin to run until "the counterclaim is revived."
The Church presumes the Second DCA chose the words of its February 19th Order very carefully, a presumption this Court certainly will not debate. It did not say that the time for Minton to make his motion would be if and when the counterclaim was unabated for the limited purpose of making the disqualification motion, and the reason it did not say so is quite clear. It is black letter law that a court is obliged to refrain from deciding any matter that is not ripe, ‑ i.e., one that is or may become moot before the matter would ripen into one in need of a determination. Here, what the Second DCA was clearly saying is that until the counterclaim is fully revived/unabated and is, therefore, proceeding with discovery, motion practice, etc., there is no reason to address the disqualification motion. Indeed, Minton's disqualification motion could be rendered moot in several ways, e.g., settlement of the case, the retirement of this Court, or any other circumstance obviating any need to answer the question of whether this Court should be disqualified.
This is the clear and unmistakable import, language and intent of the Second DCA's February 19th Order. To read it otherwise ‑ to interpret it as allowing the counterclaim to be revived only for the limited purpose of allowing Minton's disqualification motion ‑ runs precisely contrary and, therefore, offends, the concept
Thus, were this Court to proceed to rule on Minton's disqualification motion based upon the sua sponte limited unabatement, the Church believes that this would only further complicate the present procedural morass and lead to another round of petitions to the Second DCA by either Minton or plaintiff, whoever loses the disqualification motion. And while the Church would not be a party thereto, that scenario is simply not beneficial to anyone. Simply put, limited unabatement offends the February 19 Order as much if done upon this Court's sua sponte Order as it would if Minton had filed a motion for that relief and the Court granted it.
If Church counsel may be permitted, we believe there is a far simpler way to extricate everyone from the present conundrum. We note that this Court has sent a strong signal, first on March 7, then on March 10, and now in the Order, by its repeatedly raising the "what if I disqualify myself' scenario respecting the wrongful death trial, that it is, in fact, inclined to grant Minton's motion. 1 If that is the case, if it agrees, e.g., that its March 7 comments were inappropriate, this Court ought simply ignore Minton's disqualification motion and sua sponte recuse itself under the authority of Rule 2.160(i). That would completely avoid the "limited vs. unlimited abatement" issue as well as any dispute over the Second DCA's February 19 Order; after all, it is inconceivable that the
1 Indeed, on March 7, this Court clearly indicated that it had already made up its mind on Minton's motion when it stated that it was prepared to rule on it "immediately."
appellate court would interpret its Order as limiting, let alone prohibiting, this Court's exercise of its prerogative under that Rule.
Conversely, if, contrary to the repeated, unmistakable signals it has sent, this Court has already made up its mind to deny Minton's disqualification motion, Rule 2.160(i) is of no avail. Instead, the only proper way to proceed without running afoul of the Second DCA's Order is for this Court to do exactly what it stated it would do on March 7 ‑ have the pending complete unabatement motion decided first, before the disqualification motion, and by another judge. 2
Finally, we turn to the Court's invitation to address who should preside over the trial of the wrongful death claim if this Court disqualifies itself on the counterclaim. Addressing the practical considerations, as this Court has itself previously noted, a good deal of the counterclaim‑related witnesses and evidence will be admissible as part of the Church's defense in the wrongful death trial, a circumstance with which plaintiff itself agrees. 3 And that suggests that the Church's motion to "unsever" the counterclaim ought
2 We presume that the other judge would be selected by the Clerk of the Court using the random assignment system, not by this Court or, for that matter, even by the Chief Judge.
3 Plaintiff has listed, as its trial witness on the wrongful death claim, Jesse Prince, Bill Franks, Vaughn Young, Nancy Many, Margery Wakefield, Teresa Summers, Peter Alexander, Zoe Woodcraft, Astra Woodcraft, Dell Liebreich, Anne Carlson, Sam Davis and Lee Skelton. Each of these persons will clearly be witnesses in the trial of the counterclaim.
be granted, thereby mooting the question this Court posed in its Order.
DATED: March 26, 2003
Eric M. Lieberman
Attorneys for Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have caused the foregoing CHURCH
Kennan G. Dandar, Esq.
Luke Lirot, Esq.
Anthony S. Battaglia, Esq.
Ronald P. Hanes, Esq.
Douglas J. Titus, Esq.
Kendrick L. Moxon, Esq. Helena K. Kobrin,
Clearwater, Florida 33755
To Life and Death of Lisa McPherson