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The Recusal Motion Of Judge Karen Gievers, 2nd Judicial Circuit, Doctor Mark Hash - Custody Case

The Recusal Motion Of Judge Karen Gievers, 2nd Judicial Circuit, Doctor Mark Hash - Custody Case

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The Recusal Motion Of Judge Karen Gievers, 2nd Judicial Circuit, Doctor Mark Hash - Custody Case
The Recusal Motion Of Judge Karen Gievers, 2nd Judicial Circuit, Doctor Mark Hash - Custody Case

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Published by: tallahasseeobserver on Nov 04, 2013
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12/26/2013

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IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA RECHIN MOORE, Petitioner/Mother, and Case No: 2006 DR 0458 Division: FAMILY LAW MARK HASH, Respondent/Father.  _____________________________/
FATHER’S
MOTION TO DISQUALIFY THE HONORABLE KAREN L. GIEVERS
COMES NOW THE FATHER, MARK T. HASH, D.O. (
the Father 
 or
Dr. Hash
), by and through his undersigned counsel, and pursuant to Florida Rule of Judicial Administration 2.330; §38.10, Florida Statutes; Canon 3(E) of the Florida Code of Judicial Conduct; and the Due Process Clauses of the United States and Florida Constitutions, hereby moves to disqualify the Honorable Karen Gievers as the assigned judge in this matter, and in support hereof states: 1.
 
The Honorable Karen Gievers has presided over, and continues to preside over, the instant matter. 2.
 
The last of the facts constituting the grounds for this Motion were discovered fewer than ten days prior to the submission of this filing. 3.
 
All conditions precedent to the filing of this Motion have been satisfied. 4.
 
The Father is a physician, and by education, training, and experience, an expert in his field.
THE APPLICABLE LEGAL STANDARDS
 
5.
 
As made clear by Canon 3.E(1) (“Disqualification”) of the Code of Judicial
Conduct, if circumstances call into question even the appearance of impartiality, disqualification is mandated: A judge shall disqualify himself or herself in a proceeding in which
the judge's impartiality might reasonably be questioned….
 Commentary: Canon 3E(1). Under this rule, a judge is disqualified whenever the  judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.
See, also, e.g., Aetna
 
 Life & Cas. Co. v. Thorn
, 319 So. 2d 82, 84 (3rd DCA 1975) (
A judge occupies such a particular position in the affairs of other men that not only must he be free of evil intent but he must also avoid the appearance of evil.
);
 Anderson v. State
, 287 So. 2d 322, 324-25 (Fla. 1st DCA 1973) (
A judge must not only be impartial, but he should leave the impression of his impartiality upon all who attend court.... The appearance of and absolute impartiality [are] essential. There must be no taint of any lack of objectiveness in all acts of a  judge
);
 see also
 
 Fuster-Escalona v. Wisotsky
, 781 So. 2d 1063, 1065-66 (Fla. 2000)
(“Under no
circumstances may a judge sit in the trial of an action when his or her neutrality is shadowed or
questioned.”).
 6.
 
The Court's power to review this Motion is narrow. Florida Rule of Judicial Administration 2.330
(“Disqualification of Trial Judges”)
 provides that once a party has filed a legally sufficient motion that
specifically allege[s] the facts and reasons relied on to show the grounds for disqualification,
 sworn to through verification or by separate affidavit, and containing a good faith certification of counsel, the Court
“...
shall determine only the legal sufficiency of the motion and shall not pass on the
truth of the facts alleged....”
 
See
 Fla. R. Jud. Admin. 2.330(c) and (f).
 
7.
 
Thus, the Court must accept as true all of the facts alleged in this Motion, and determine only whether these facts, if assumed to be true, would
 prompt a reasonably prudent  person to fear that he could not get a fair and impartial
 proceeding.
 Hayslip v. Douglas
, 400 So. 2d 553, 556 (4th DCA 1981). The
 Hayslip
 court continued:
The test of sufficiency…is whether or not [a verified motion’s]
content shows that the party making it has a well-grounded fear that he will not receive a fair [proceeding] at the hands of the  judge. It is not a question of how the judge feels; it is a question of
what feeling resides in the [movant’s] mind, and the basis for such feeling….
 
 Id.
 8.
 
Further,
[i]n [
 Berger et al. v. United States
, 255 U.S. 22, 35 (1921)], the Supreme Court of the United States considered and construed a statute very similar to [§38.10, Fla. Stat.], and it was there held that the facts alleged in the affidavit would be sufficient if alleged on information and belief. If the facts revealed have relation to the attitude of mind of the judge to the defendant in the inferior court, and are not frivolous or fanciful, they are sufficient to meet the command of the statute.
 
Siegel v. State
, 861 So.2d 90, 92 (Fla. 4th DCA 2003).
GROUNDS FOR DISQUALIFICATION
1.
 
Among the several ways that Judge Gievers
 bias has become manifest over the course of the instant matter is by her relentless fabrication of negative
“facts” about
 Dr. Hash in her orders, as well as her unqualified acceptance of Petitioner 
s false and unsupported claims
 — 
evinced by,
inter alia
, the Court
s adoption and October 28, 2013 issuance of Petitioner 
s  proposed order to show cause, which order simply continues Judge Gievers
 ceaseless and  baseless quest to throw Dr. Hash in jail at the expense of his constitutional rights, and which includes false, defamatory claims that are absolutely unsupported by the record, e.g., that Dr.

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