IN THE COMMON PLEAS COURT
ASHTABULA COUNTY, OHIO
____________________________________
) Case No.:
15CVF00096
IN THE MATTER OF RECUSAL ) Magistrate:
David Sheldon REGARDING MAGISTRATE DAVID )
SHELDON,
ASHTABULA COUNTY, OH )
AND EXTENSION OF TIME )
)
) Melinda Pillsbury-Foster
_____________________________________)
MOTION FOR RECUSAL, MEMORANDUM IN SUPPORT AND REQUEST FOR NEW DATE OF HEARING
Now comes Melinda Pillsbury-Foster, Defendant
in Case No. 15CVF00096 , acting in Pro
Se, to hereby move that Magistrate David Sheldon
recuse
himself
forthwith from any involvement whatsoever in all proceedings
regarding the matter laid out in the aforenamed case and take
the appropriate and necessary steps through the
Ohio Supreme Court for the appointment
of a successor judge to stand in his place
and stead
to hear
and decide
matters
pertaining
to the civil action now being heard and
possible criminal charges stemming from the facts therein outlined.
The grounds supporting this Motion are set forth on
the
Memorandum
below.
MEMORANDUM IN
SUPPORT
1. Background
Facts
The relevant events leading up to the above
Motion came to the attention of Defendant on
January 16, 2015. Defendant learned Plaintiff in the
aforementioned case, Ms. Raye Smith, had posted a letter on Rumor
Mill News, a website owned and controlled by Ms. Raye A. Smith. Ms.
Smith is the Plaintiff in the case cited above, an eviction which
she is pursuing to evade contractual obligations to Defendant.
Defendant is a senior citizen
and disabled. Additionally, she is the sole caretaker for an adult
disabled son who is entirely blind in one eye and 70% blind in the
other eye. He survived two major brain injuries, has limited
mobility, and needs care 24/7. Therefore Defendant's ability to
work is severely constrained and limited. She and her son are
dependent on disability and social security payments.
To
quote the relevant part of the Posting noted above, which appeared
publicly on the Rumor Mill News Website on January 5, 2015, “
I do not know how long it will take my lawyer, my landlord and his
lawyer to get her out of the house. I have been told by someone who
knows her that she has been evicted 13 times before. This means she
knows every trick in the book and probably knows more than all of
the lawyers involved in this eviction. In today’s society most
criminals know their legal rights better than their lawyers.”
This
was the first indication Defendant had that Plaintiff, Robert
Brobst, and two attorneys were cooperating in what has the
appearance of an abuse of process and conspiracy. The posting is
libelous, the charges being false to fact.
(See
Exhibit 13 – Libelous Post, January 5, 2015)
Defendant
had contacted Brobst regarding renting the house herself because she
had learned from a call to Aqua, the water company, when the water
was turned off due to lack of payment by Smith, and that Smith was
moving. Smith has been claiming to be in the process of moving
since May of 2014 and has been extracting donations from her online
Readers now amounting to between $20,000 and $30,000.
Calls
to the other utilities confirmed that Smith had informed them she
was moving and had cut off her service at the end of business that
day, December 30, 2014. After ensuring the services would not be
interrupted and moving them into her name so service would continue
Defendant left a message for Brobst at his office. Her call was not
returned.
Defendant
learned indirectly by receiving a final bill from Dominion, the gas
company, Brobst had called the utility companies, at the behest of
Ms. Smith, to demand these be returned to her. Brobst and Ms.
Smith had also arranged for the bills to be returned to Defendant's
name on February 2, 2015. Defendant tried again to call Brobst.
Her call was not returned. The utility companies refused to discuss
what had taken place with her, saying this was confidential.
Defendant assumed Smith was going to move as her service, she was
able to confirm, ended on January 30, 2015. Smith had still not
moved as of February 26, 2015.
Brobst
had visited the house and handed the Defendant a copy of a NOTICE TO
LEAVE PREMISES BEFORE SUIT naming Ms Smith, with a note including
'other occupants.' He refused to talk to her saying he did not need
to know what had happened in any way.
Upon
examining the Notice Defendant noticed it had been faxed to the
recipient, presumably Robert Brobst, from the fax number
440-964-7710. Defendant ascertained this was the fax for David
Sheldon, Esq., by googling the number on the Internet. Defendant
was not named on the notice. (See - Exhibit
17 - Brobst Notice to Leave Premises )
Smith
had previously used notices in her attempts to force Defendant to
vacate the premises without settlement. To each of these Defendant
had responded and made attempts to settle. Ms. Smith had not
proceeded with a motion for eviction. (See Exhibits 14 & 15,
Brobst Letters)
Because
the utilities were to be returned to her name Defendant assumed
Brobst had decided he was willing to rent to her. Defendant sent a
fax to Brobst on January 22, 2015, with attachments, informing him
she was seeking other housing because she had discovered what
appeared to her to be a violation of ethics by him, Smith, David
Sheldon and the other unnamed attorney.
Defendant
stated this in the letter sent to Brobst. In the same letter she
informed him she hoped to have alternative housing and be out by
February 13th.
Unfortunately, the unit was rented to another applicant. (See
Letters to Brobst, January 22 & Exhibits, February 2)
Defendant
learned during a visit to the Ashtabula Municipal website on
Thursday, February 12, 2015, that Smith had filed a motion the
previous day, February 11, 2015, Case No. 15CVF00096,
a Complaint in Forcible Entry and Detainer to have Defendant
evicted, continuing her attempts to evade her contractual
obligations from employment and agreements with Defendant.
Defendant's countersuit to the motion was filed with the court
February 26, 2015, to be heard on Monday, March 2, 2015 in Ashtabula
Municipal Court at 3PM. (See Exhibit 24 - Response to Complaint in
Forcible Entry and Detainer and Counterclaim)
Defendant
asked the Clerk of the Court who would be hearing the case and was
told the case would be heard by David Sheldon, acting as Magistrate.
Defendant
believes this violates the First Canon of the Code of Ethics for
Ohio, this being, “
A
judge shall uphold and promote the independence, integrity, and
impartiality of the judiciary and shall avoid impropriety and the
appearance of impropriety.” Defendant
had pointed out her discovery in the letter faxed to Brobst on
February 2, 2015.
If
Attorney Sheldon prepared a NOTICE TO LEAVE PREMISES BEFORE SUIT
form for Brobst, when the actual intent was to evict Defendant,
ignoring her contractual claims and in collusion with another
attorney, Brobst, and Smith then this an ethical violation in at
least two ways.
First,
it is an abuse of process, using a form of eviction to evade a civil
suit for fraud and violations of contract which applies to renters.
Second, it is being carried out covertly between multiple parties,
which appears to be conspiracy, which under the law pertaining to
2923.32 - Engaging in pattern of corrupt activity, subsections (1)
and (2).
Ms.
Smith is attempting to collect from Defendant an unlawful debt,
namely rent for housing which was supplied to Defendant as corporate
housing as an employee. Presumably, the cost of corporate housing
would have been deducted as a legitimate business expense. In so
doing Smith is attempting to evade payment of money Smith owes
Defendant. Smith is being aided in this by three parties, Brobst,
Sheldon, and another unnamed attorney. Defendant believes it is
likely Brobst has rented Smith the house to which she is moving.
Without question
this
incident
constitutes
a serious
breach of
the rules
establishing
proper Court
conduct;
rules
requiring
the
avoidance
of even
the
appearance
of
impropriety. It ignores the claims of
Defendant, her persistent attempts to achieve a settlement despite
the many threats, slanders, libels, and harm caused her by
Plaintiff. It also places two disabled individuals at risk of
homelessness.
Law and Argument
The Code of Judicial Conduct
The rules governing the conduct of the judiciary in Ohio are set forth in the Code of Judicial Conduct. In part, the Code states as follows:
“Canon 1
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety…
Comment
[1] Public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety. This principle applies to both the professional and personal conduct of a judge.
[2] A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the code.
[3] Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary. Because it is not practicable to list all such conduct, the rule is necessarily cast in general terms.
[4] Judges should participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all.
[5] Actual improprieties include violations of law, court rules, or provisions of this code. The test for appearance of impropriety is an objective standard that focuses on whether the conduct would create, in reasonable minds, a perception that the judge violated this code, engaged in conduct that is prejudicial to public confidence in the judiciary, or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.
Canon 2
A Judge shall perform the duties of judicial office impartially, competently, and diligently.
RULE 2.2 Impartiality and Fairness
A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.
A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:
The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.
[1] A judge is responsible for his or her own conduct and for the conduct of others when those persons are acting at the judge’s direction or control. A judge may not direct court personnel to engage in conduct on the judge’s behalf or as the judge’s representative when such conduct would violate the code if undertaken by the judge.
[2] Public confidence in the judicial system depends upon timely justice. To promote the efficient administration of justice, a judge with supervisory authority must take the steps needed to ensure that judges under his or her supervision administer their workloads promptly.”
[[E-SIGNATURE]]
Melinda Pillsbury-Foster
Litigant, Pro Se
525 Bunker Hill Road
Ashtabula, Ohio 44004
A Judge shall perform the duties of judicial office impartially, competently, and diligently.
RULE 2.2 Impartiality and Fairness
A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.
RULE 2.11 Disqualification
A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:
The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.
Comment
[1] A judge is responsible for his or her own conduct and for the conduct of others when those persons are acting at the judge’s direction or control. A judge may not direct court personnel to engage in conduct on the judge’s behalf or as the judge’s representative when such conduct would violate the code if undertaken by the judge.
[2] Public confidence in the judicial system depends upon timely justice. To promote the efficient administration of justice, a judge with supervisory authority must take the steps needed to ensure that judges under his or her supervision administer their workloads promptly.”
An Appearance Of Impropriety Exists
Without doubt, the heart and soul of the Code
of Judicial Conduct is set forth in
Canon 1, which mandates that a judge must avoid even the appearance
of impropriety.
Comment 5
to the
Canon
makes it
clear that
the test
determining
whether
the
appearance
of impropriety exists is objective, and
focuses on whether the conduct would create,
in reasonable minds, a perception that
the judge’s actions
may constitute a violation of the
Code’s provisions.
In other words, the test is extremely broad, and obviously
advocates
that judges err on the side of caution
when considering how their actions may appear
to the general
public.
Conclusion
By reasonable measure, an appearance of
impropriety is present in these
proceedings. The language of the Code
of Judicial Conduct, argue that the integrity of these proceedings
cannot be
reasonably questioned. With due
respect, presiding Magistrate Sheldon
must
recuse himself and make proper
arrangements with the Ohio Supreme Court for
a
successor
judge.
Respectfully
submitted,
[[E-SIGNATURE]]
Melinda Pillsbury-Foster
Litigant, Pro Se
525 Bunker Hill Road
Ashtabula, Ohio 44004
REQUEST FOR A HEARING
Movant respectfully requests this Court to
hear, consider and determine this
Motion on a
date prior to any hearing on the matter when all
interested
parties and
counsel
will be in Court. She therefore asked
the hearing scheduled for Monday, March 2, 2015 at 3:00pm be
rescheduled so the recusal can be heard.
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing
was sent by regular United States
mail, postage prepaid, and by email,
this 26nd
day of February, 2015, as
follows:
David C. Sheldon
3503 Carpenter Road
P.O. Box 1152
Ashtabula, OH 44005
Phone: (440) 964-2671
Fax: (440) 964-7710
davesheldon@windstream.net
Litigant, Pro Se
525 Bunker Hill Road
Ashtabula, Ohio 44004
Phone: 805-xxx-7600
Fax: 805-233-xxxx
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