Saturday, April 11, 2015

Sheldon Recusal - Filed February 26, 2015 Ashtabula Municipal Court





                         IN THE COMMON PLEAS COURT ASHTABULA COUNTY, OHIO




____________________________________

                                                                                   )        Case No.: 15CVF00096
                                                                                   )        Magistrate: David Sheldon
    IN THE MATTER OF RECUSAL                        )
    REGARDING MAGISTRATE DAVID                )
    SHELDON, ASHTABULA COUNTY, OH          )
    AND EXTENSION OF TIME                               )
                                                                                    )
                                                                                    )       Melinda Pillsbury-Foster
                                                                                    )       525 Bunker Hill Road
                                                                                    )       Ashtabula, Ohio 44004
                                                                                    )       Phone: 805-xxx-7600 Fax: 805-xxx-6428
                                                                                    )       E-mail: themeliinda@xxxxxx.com
                                                                                    )       Pro Se Litigant          __________________________________________)



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 thttp://justtheevidence.blogspot.com/2015/03/exhibit-15-brobst-letter-february-2.htmlhe 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.


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.





































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