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,
CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, JANIS JOHNSON, ALAIN KARTUZINSKI and DAVID HOUGHTON, D.D.S.,
AND RELATED COUNTERCLAIM.
ROBERT MINTON'S, RESPONSE TO COURT'S ORDER PERMITTING RESPONSE TO MINTON'S MOTION TO DISQUALIFY
The Counterdefendant, ROBERT MINTON, by and through his undersigned attorneys, hereby responds to the Court's Order of March 23, 2003 (the "Order") relating to Robert Minton's Renewed Verified Motion to Disqualify Trial Judge and Suggestion of Disqualification and Request for Permission to File Motion ("disqualification motion"), and states as follows:
1. Pursuant to the applicable case law, the Court can only rule on the present motion to disqualify and take no other action until the resolution of that motion. See, generally, Foster‑Escalona v. Wisotsky, 781 So.2d 1063, 1066 (Fla. 2000). The Court's solicitation for replies and "suggestions" from "interested parties" (and the indication that it would entertain these suggestions in conjunction with the disqualification motion), as to how various procedural matters should be handled if
disqualification is granted as to the counterclaim only, is improper and constitutes a new and independent ground for disqualification. Id. Assuming for the sake of argument that such a solicitation and resolution of these issues is proper under any circumstances, it can only occur after the Court's disposition of the disqualification motion. If nothing else, the Court's request for "suggestions" creates an improper appearance that the Court's resolution of the disqualification motion will not be based on the law and record, but on a wholly irrelevant consideration.
2. Minton notes that the Court is trying to make a distinction where there is no difference. The disqualification Motion was made in both parts of this case ‑wrongful death and counterclaim. Whether the Court agrees or whether it disputes that it de facto unabated the counterclaim, became academic on March 7th. On that date, the Court initiated and conducted a telephone conference in both parts of this case, as evidenced by the fact that at the Court's specific request, counsel for the individual wrongful death defendants were asked to participate despite that they are not parties to the counterclaim. During that combined, case wide teleconference, the Court improperly and repeatedly addressed the merits of the disqualification motion and, in particular, the merits of its predicate of de facto unabatement. Accordingly, on March 10th, Minton filed his Supplemental Amendment and Memorandum to the Disqualification Motion asserting, as a wholly separate and independent ground for disqualification in both parts of this case, that the court improperly addressed the merits of the disqualification motion.
3. As of the Court's Friday, March 28, 2003 deadline for responses and "suggestions", it will be 23 days since the disqualification motion was filed. Holding the
motion for this length of time creates another new and independent grounds for disqualification. Id. at 1065.
4. Minton incorporates by reference the previously filed disqualification motion along with the Supplemental Amendment and Memorandum thereto.
5. The Court should take no action other than to rule on and grant the disqualification motion.
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 28th day of March, 2003.
ANTHONY . BATTAGLIA, ESQUIRE
To Life and Death of Lisa McPherson