notice motion mistrial

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NO. SNSP-037013 : SUPERIOR COURTHon. JACK L. GROGGINS : HOUSING SESSSION

:R.K.D. VENTURES, LLC, ET AL : NOTICE OF MOTION

Plaintiff :

V. : JUDICIAL DISTRICT OFDELMO ZANETTE : STAMFORD / NORWALK: AT NORWALK

Defendant :FEBUARY 25, 2010

PLAINTIFS MOTION FOR SUMMARY DISMISSAL; OR MISTRAIL; OR

DISQUALIFICATIONS WITH

SEEKING RECLUSAL OF JUDGE GROGINS BYCOMPLAINT BASED ON BIAS CONDUCT; AND :

VACATING THE USE AND OCCUPANCY ORDER;

DISQUALIFICATION OF OPPOSING COUNCIL;DECLARATORY RULING ON MATTERS STATED HEREIN ;EVIDENCE ON THIS MATTER WITHELD BY PRIOR COUNCIL RETURNED;

VALUABLE PERSONAL PROPERTY WITHELD BY PRIOR COUNCIL RETURNED;SANTIONS TO BE IMPOSED ON ROBERT KAELIN, COUNICL TO PLAINTIFF ON

CONDUCT OF FALSE DECLARATIONS TO THIS COURTFULL DISCOVERY IS SOUGHT BEFORE THE MATTER IS DECIDED

NEXT HEARING ON APRIL 3, 2010 OR THERAFTER.

TO: HON. TAGGART ADAMS, JUDGE GROGINS, HON. SHERIDAN MOORE, HON.DENNIS G. EVELEIGH, HON. PATRICK J. CLIFFORD,HON. BARBARA M. QUINN,

HON. JUDGE JENNINGS andRobert Kaelin, attorney of record, and to all concerned:

PLEASE TAKE NOTICE that upon the annexed affirmation of Delmo L. Zanette

affirmed on, February 28, 2010, and upon the exhibits attached thereto,the Affidavit in Support,

Complaint for Disqualifications and declaration of Fraud Upon the Court, Trial Brief with

Memorandum of points of authorities, documents, records, and files corresponding to this action,

pleadings herein, and documentary evidence as may be presented by submitted papers at

February, 25, 2010; whereby plaintiff moves this Court, before, The Hon. Taggart D. Adams,

for an order pursuant to this Courts supervisory power over the administration of justice, the

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Fifth, and Fourteenth Amendments to the Constitution of the United States, Article I, 1, 7,10,

14 and 20 of the Constitution of the State of Connecticut, and Code of Judicial Conduct,

Appendix C, Canons 1,2, and 3, Conn. Practice Book 66-2, 85-2,17-54,17-55, and 41-8,

Delmo Zanette, the true legal owner of the subject property, moves for sanctions against the

plaintiffs including (1) summary dismissal of the case of RKD Ventures LLC v. Delmo Zanete ,

Docket No.SNSP-037013; and or (2) declaration of a mistrial ; and or (3) recusal of Judge

Grogins ; and or disqualification of Robert Kaelin, and an order holding him in contempt of the

Norwalk Court, which was by a false declaration to Judge Moore on December 15th, that his

clients own 100% of the 1357 King St to unlawfully obtain her ruling granting Use &

Occupancy that would not have been possible if Robert Kaelin had stated the truth; specifically

that the current deed states 50-50 ownership between parties. Albeit the petitioners claim of tile

is based on the instruments filed with the Town Clerk of Greenwich. Yet, this was without

defendants authorization or knowledge, and that the tile instruments are a product of statutory

forgery. Essentially petitioners claim to title exists as a constructive trust.

I. Pursuant to Conn. Practice Book, Sec. 5-1. Trial Briefs, [Plaintiff is submitting] as of

right, . . . a written trial brief discussing the issues in the case and the factual or legal basis upon

which they ought to be resolved.(P.B. 1978-1997, Sec. 285A.); and pursuant to Conn. Practice

BookSec. 5-2. Raising Questions of Law Which May Be the Subject of an Appeal: Any party

intending to raise any question of law which may be the subject of an appeal must either state the

question distinctly to the judicial authority in a written trial brief under Section 5-1, or state the

question distinctly to the judicial authority on the record before such partys closing argument.

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II. Plaintiff seeks DECLARATORY JUDGMENT, pursuant to Conn. Practice Book, in sec.

17-55, and 17-56 . .that permits bringing of complaint for a declaration of the present and future

rights on the controversy between parities of which party has legal ownership of the disputed

properties. Thereby, through a declaratory judgment would resolve the controversy by declaring

the rights and obligations of parties regarding the properties. Specifically, this is with the

disputed legal right of ownership and right to possession now being litigated. Thus, declaratory

relief would clear the air" on a number of disputed issues on the following sought declarations:

1. Determine if Robert Kaelin made a false declaration on Dec. 15, 2010 when he told

Judge Moore his client owns 100% of 1357 King Street (white House or subject

property).

2. determine if fraud upon the court occurred.

3. determine the validity and construction of deeds to the properties, and the respective

rights of the affected parties, including determination as to the validity of deeds under

the Uniform Fraudulent Transference Act.

4. determine the validity and construction of mortgages and deeds of trust and the rights

and liabilities connected therewithbetween parities under the Uniform Fraudulent

Transference Act.

5. determine on what basis if any how the May 27, 2004 agreement can legally be

considered to be a lease between parties or that it should not be considered as proof of a

landlord/tenant relationship according to State Law.

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6. determine the rights and liabilities between parties regarding tenants on the property and

their rental revenue.

7. determinethe status of RKD Venture I & 2 and the rights of its members

8. determine if fraud on the court occurred with lawyers from both sides in the Norwalk

Housing Court and Superior Court of Norwalk and Stamford.

9. determine the LLCs are not to be embraced by defendants to deflect being held

personally liable for the conduct they perpetrated under the authority of the LLCs;

10. determine in accordance to the May 27, 2004 agreement, the mortgage with the open-

end loan disbursements, the collection of rental revenues, as to what are the fiduciary

obligations or debts between parties.

11. determine if plaintiffs embezzled approximately $360,000 at the time of refinancing,

and specifically how much money they appropriated for their own use and benefit.

12. determine through the subpoena process how many hundreds of thousands of dollars of

rental revenue plaintiffs collected and co-mingled in their own accounts, such as to

Steven Philips trustee, Mercedes Benz of Greenwich, and Watson Enterprises.

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13.Determine what valuable personal property and personal documents may have been

stolen when plaintiffs broke in to defendants home to change the locks and remove

collection of rifles and coins worth tens of thousands of dollars.

Wherefore defendant seeks :

1) Plaintiff to hand over the key that they have refused to do since

they changed the locks on Dec 16th to execute constructive

eviction.

2) to do a full discovery before the matter of which party has legal

rights of possession to the disputed properties is decided, and

3) that the next hearing is to be scheduled April 3, 2010 or thereafter,

and

4) order the U&O is vacated

5) order that the illegal lockout be cured and that defendant be given

the key to his home.

6) order Mark Katz to return misappropriated items belonging to

defendant that he refuses to relingish. Specifically, the coin and

rifle collections, and defendants documents that are his evidence

to this case.

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7) Order Abrim Heisler to release to defendants agent his complete

file, which he has past refused to release to defendant, even

though he was paid in full.

8) Order an accounting of the rental revenue that both parties

collected since November 2004.

9) Order plaintiff makes an accounting on the open end loan of

$900,000 that is gone, to be substituted with well over a 2 million

a lean on the properties that owed less than a million when

plaintiff started with exclusive fiduciary management and control

by adverse dominance.

Dated: February 25, 2010Defendant, Delmo L. Zanette, pro-se____________________________1357 King StGreenwich, Connecticut 06830914-844-0244

To: Robert Kaelin Defendants residing until April 3, 2009Murtha Cullina LLp c/o Steven GramacyCItyPLace I-185 Asylan Street 127 Bird of Paradise Dr.Hartford, Connecticut 06103 Palm Coast, FL 32137Tel: 860-240-6000 914-844-0244Fax: 860-240-6150

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I, DELMAR ZAETTE, the defendant, moves the Court for the mistrial, or in lieu, a

disqualification of Judge Grogins and Hickley, along with plaintiffs attorney of record, Robert

Kaelin, from any continued handling of the case identified above and hereon; and being duly

sworn, deposed and says:

1. I am now in a summary proceeding in Norwalk Court where I am seeking a mistrial to

be called, or if this is not granted, as an alternative the recusal of Judge Grogins. Then, this case

needs to be referred to Judge Moor, instead of Judge Hickley, due to his past demonstrations of

being bias against me. Whereas, currently Judge Grogins is assigned to my housing case, and has

scheduled its trial for February 25th, 2010. The cause for recusal is applicable, since Judge

Grogins and Hickley, consistently extended profound favoritism towards my opposition, while

acted with ill-will towards me. This was by his accepting whatever plaintiff claimed with words

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as if being verified material facts, not worthy of any further enquiry, while simultaneously

denying me of my right to be heard.

2. Whereby, Judge Grogins and Hickley granting standing of RKD as landlord to pursue the

summary process proceeding was a nugatory determination, clearly made in error. Since the

relationship between parties and the subject properties known to Judge Grogins is that of being

50-50 owners. Consequently, such equally shared rights of interest to the properties cant in any

manner or form be interpreted as one party possesses paramount title. Insomuch as, the

housing court ignored the partnership principals of equally shared interest of ownership

implying the same rights and privileges. Rather, it is demonstrating favoritism to one party and

ill-will towards the other, as is the case in this matter.

3. Hence, the pending summary process action is far from being a simple matter of an

occupancy dispute, involving parties being a landlord/owner against his renter/tenant. Yet, with

the most recent action before Judge Groins, he now repeats the unfair treatment of me as was

done in the other proceedings. Since Judge Groins is continuing to perform his official duty in a

manner of deciding my case while he interferers with my ability to plead my defense.

4. Subsequently, I have been treated unfairly as the record bears this as a material fact,

which establishes I am entitled for a new judge to be assigned to my case. This request is

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guaranteed by the statutes governing disqualification of a judge for cause. In fact, any one of

numerous examples of Judge Grogins judicial misconduct would mandate his recusal.

5. Especially with considering that plaintiff submitted the May 2004 contract (contract)

(exh. A) to validate their claim I was tenant because it stated I would pay $1,000 towards taxes.

This signed document was submitted in substitution of any documentation indicating a sale had

actually occurred. Yet, the court accepted the contract without any further questions asked, not

exercising due diligence to explore the issue of proof to the parities standing of ownership and

rights to possession. In effect, the Court accepted the agreement in a matter before its

consideration, as if it was plaintiffs right to title, or a non-disputed deed of title and ownership.

6. However, according to Conn. property law (The Uniform Fraudulent Conveyance Act),

commercial conveyance of property title requires that a reasonable consideration occurs to

establish a legitimate transference of ownership. Thus, if no reasonable consideration has

occurred in a commercial transaction, this constitutes by law a fraudulent conveyance. While if

any fair-minded judge was just to read the contract it would raise red flags and would compel

him out of his requirement to perform his official duty to ask questions. Such as why was

defendants council proceeding with trial without defendant being present to hear what the

opposition was testifying? Thereby, in order to support his line of questioning and to give a

rebuttal. This is when the reason given was that plaintiff had chosen to sell his produce instead of

participating. While the real reason was plaintiff was undermined by his own lawyer and wanted

not to challenge plaintiffs lies.

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6. The court did not ask if the conditions of the contract had been fulfilled that would allow

it to have jurisdiction over enforcing the contract as if it was a tile of ownership. Thereby, the

fact finderwould be able to determine if it is an enforceable instrument, or subject to recession,

or dissolution. Since as a legal instrument the contract identifies the rights of parties, as in

accordance to what was contractually agreed. Essentially, the contract indicates that an agreed

price to buy the entire land in two years has expired. This is with a breached promise of giving

me 1.9 million (net) in return; or if the land was sold to an outsider it must be for $4 million and

I would get 2.4 million (net) and plaintiff would get $500,000.00. In addition in anticipation of

the sale of the properties that the LLCs were set up designating each party has a 50 % share.

Thus since the purchase never occurred it was an act of misfeasance on the part of the judges not

to want to know what if any quid quo pro occurred.

7. In fact the contract as evidence of a legal agreement between parties, contradicts my

oppositions claims of being a co-venture to develop the property. Along with a variety of other

fabricated stories to create the appearance of legal standing; such as with plaintiffs testimony

that the nature of their ownership was a quid-quo pro agreement for putting up money to prevent

my losing the property, yet this claim is clearly refuted by the terms contained in the contract.

8. Moreover, why did the court not ask plaintiff what steps he undertook to fulfill our

bargain involving the development of the land to increase its value? Not to mention, the court

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asking the most relevant question to establish my oppositions rights of ownership, how much

money did you invest to establish your disputed claim of 50% ownership?

9. On the other hand, the court forced my eviction from my property, so as to protect

plaintiff from my breech of promise of selling the property. Instead of the court wanting to see

the bill of sale for the 50% ownership, canceled checks, current deed, mortgage, etc., it elected to

hear stories; such as plaintiff, Ronald Pecunies, complaining: we are paying everything.

Moreover, the Court concentrated it focus on the pivotal question if I was interfering with the

property being sold to justify if I should be evicted from the property.

Whereas, the Court heard perjured testimonial evidence from plaintiffs real estate agent who

falsely claimed when someone came into her office to sign the papers to buy the property I

chased them away. Thereby, this verified as proof to the court that I was violating my legal

obligations that bound me in the contractual agreement. Specifically, this was for plaintiffs to

independently control its sale and the equity it produces. Thereafter the property was sold the

plaintiff told the Court it was their intention to give me half of the equity created from the sale as

my share.

10. Currently, my oppositions intent is for my properties to be sold to third parties, and the

realtor who gave false testimonial evidence will be paid a generous commission at my expense.

Even though nothing in the contract states the property would be sold through a realtor and I was

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goes further to state that shareholder with just a 10% share, still has the authority for a view of

transparency of the business of that corporation and has a say.

13. Essentially, it is beyond imagination as to figure on what basis the court felt compelled to

believe that the contract as my promise to sell my property by 2006 was to be enforced by

depriving me of occupancy in 2007 & 2008. Albeit under the premise I was breeching my

promise to sell my property by interfering with its ability to be sold by my occupancy in the

interim. Even though when I had buyers wanting to buy in 2006 for 4 million the plaintiff

refused to allow the sale to go through because they felt $600,000.00 was not enough money for

them. Yet this was more than the bargain of the contract that stated if I was to sell to an outsider

they would be given only $500,000.00.

14. The first appearances on the original eviction action went before Judge William F.

Hickey, Jr. This was when the lawyer Steven Philips for plaintiff pleaded that plaintiff was 100%

owners of the commercial property that I was occupying. However my lawyer, Demetrois

Adamis, corrected the plaintiffs false statement that I was 50% owner of RKD ventures. To wit,

Judge Hickeys response was to say since they only own 50%, then he must set the case for trial.

It was as if Phillips prior false declaration of misrepresenting the fact of the central issue with

the ownership by parties was irrelevant. Instead, of Judge Hickey sighting Phillips for contempt,

and dismissing the action based upon a defective pleading, he thought it more appropriate the

matter goes forward to trial in an eviction proceeding. This is comparable to granting someone

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standing as a landlord to evict his co-occupant based on his collection of money for property

taxes, even though the deed states they share 50-50 ownership.

Essentially, what Philips argued was that because the petitioning party pays the taxes after

collecting the co-owners share, gives him the legal right to use the courts to deprive his co-

owner from continuing with enjoying their rights of possession. Thus, after the co-owner is

evicted he can rent out her share for his benefit, or force her to sign on to a sale price that he

controls from a position of unfair advantage. Since by the court depriving her of her right to

appreciate any benefit from being a co-owner, her only opportunity to salvage any benefit is

agree to the stated price and authorize the sale to go. Even through the sale is exclusively

controlled by the other party.

15. In effect, plaintiff pleadings for justifying my eviction were based upon my contractual

breach by their implying my conduct according to the contract was with bad faith. Such as with

fraudulently claiming I never paid the $1,000.00 tax contribution and took all the rents

Eventually, I signed a stipulation upon Aldamis instance and false promise that if I signed

Thus, the Courts determination was essentially it was curing my contractual breach by evicting

me from my property so it could be sold. Since my continued occupancy interfered with it being

sold by plaintiff. Thereby, the conditions set forth in the contract can be met as the Court

determined by my eviction. Insomuch as plaintiffs appeal for my eviction was based on my

interfering with the consummation of the terms in the contract by my living on my property.

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Even though I was willing to give plaintive $24,000 towards paying my $1,000 contribution

twice, and money in advance towards future rents, yet they still wanted me evicted.

16. Consequently Judge Grogins rulings can be identified as being in ultra vires. Insomuch as

it cant be defined by the legal relationship between parities. Since in no manner or form could

our business relationship ever to be justified to be legally viewed as a landlord and tenant

relationship. Neither can a contractual promise based on a breached option to buy the property

with a provision of my contributing towards the taxes make it so. Rather, at best the Court

considered an unsubstantiated claim of plaintive being 50-50 owners with me; that plaintiff is

named as the manager of the property; and is the executive manager of the LLCs with 50-50

ownership between parties. This still is with 50-50 ownership of title that means neither party

can overrule the other party to enforce their will. Such an act is unlawful, since it changes the

status-quo from when the alleged 50-50 partnership was established, and disrupts the equal rights

to benefits implied with a 50-50 ownership.

17. However, Judge Grogins does not follow Connecticut State law that dictates plaintiff

have no standing as landlord to evict me as his tenant in housing court in the first place. Yet,

Judge Grogins heard the case and ordered my eviction. Even though none of the criteria set forth

in the law were met to provide Judge Grogins with lawful jurisdiction, still he bootstrapped

himself to the case and gave plaintive whatever legal relief that they wanted from the court.

Including the authority of the court to be perverted as a devise to pressure me to force my

willfully agreement that plaintiff has a right to sell my property for his financial enrichment. In

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effect, the power of the court has been mutated into a devise in furtherance of the activities of

organized extortion; as:

The law says under Conn. Gen Statues 47a-1 (I), a tenant is defined as: the lessee,

sub lessee, or person entitled under a rental agreement to occupy a dwelling unit or

premises to the exclusion of others or as defined by law. Under C. G.S. 47a-1 (d), a

landlord is defined as: the owner, lessor or sub-lessor of a dwelling unit, the building

of which is a part of the premises. It is a well settled in Conn. that a landlord/ tenant

relationship arises from an agreement, either oral or written, whereby one person, the

tenant, enters into possession of land possessed by another, the landlord (Rivera v.

Santiaga, 4 Conn. App. 608, 495 A.2d 1122 (1985)).

The agreement, commonly referred to as a lease, transfers an estate in real property to a

tenant for a stated period. Its distinguishing characteristic is the surrender of

possession of land or tenement by the landlord to the tenant so that he may occupy the

land or tenement leased to the exclusion of landlord himself. (Jo-Mark Sand and Gravel

Co. v. Pantonella, 139 Conn. 598, 601, 96 A 2d 217 (1953). A lease transfers an estate

in real property to a tenant for a stated period, with a reversion to the owner after the

expiration of its lease. (Monarch Accounting Supplies, Inc. v. Preziosa, 170 Conn. 659,

368 A2d 6 (1976).

18. Essentailly, the contract was a purchase agreement where the thousand dollar payment

was identified as going to taxes, not as a rent. Moreover plaintiff did not take possession of the

property under the contact and it said nothing about plaintiffs occupancy would be for a

prescribed period of time. Rather it was an agreement of intent to purchase. Subsequently

plaintiffs rights to continue with quiet enjoyment of the property he occupied would only be

subject to a change of status quo if the opposition purchased the property, which they did not.

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Judge Grogins treated me unfairly when he would not allow my movant to be granted to vacate a

stipulation. Even though my lawyer communicate to him that I was tricked to sign the stipulation

by my own lawyer Donald Brown of accepting final judgment in 5 months.

Moreover, I was brought back to court earlier because the opposition claimed I was late on

paying my rent, even though this was based on them not depositing my check for rent. Yet when

my double dealing lawyer Heisler asked for the stipulation to be vacated the court would not

allow me to testify and refused its dissolution to enforce the order of eviction. Even though

Abrim Heisler brought before Judge Grogins attention that the real estate agent Elsie Peorin had

lied on the stand, plaintiff did not cash my check, and I did not understand the stipulation when I

signed it.

19. However, Judge Grogins allowed my opposition, Pecunies to testify to their fraudulent

claims. Such as with the business arrangement and fiduciary obligations, but blocked me from

presenting my position. Even though my testimony was essential for the Court to establish my

cause of action to justify vacating the stipulation, as to establish my state of mind when I signed

the stipulation, . . . as this was the issue to be decided upon to determine if my sought relief was

justified. Since the matter before the court was whether my signing of the stipulation was

through my own volition, or was the product of misconduct and/or misrepresentations.

18. Specifically, I had no interest to sign the stipulation, but my lawyer Donald Brown

pressured me to sign out of fear, by telling me that if you dont sign it theyre going to suck out

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all the equity in your property and you will end up with nothing. Moreover, Brown said it

doesnt matter if you sign it because I am going to bring an action in the higher court to dissolve

the LLCs. Then he told me that after you sign it, whatever the judge asks you just say yes, which

I did that the court said when the case was brought back this proved I understood the stipulation.

The irony is that both lawyers, pulled an identical scheme to achieve the same desired result.

Whence, Aldamis tricked me by pressuring me to believe it was of an importune necessity for

me to sign the stipulation; while simultaneously neutralizing my concern I would be bound to the

terms. Since I was told that the simultaneous activity in the superior court meant I was out of the

courts jurisdiction. Essential both Aldamis and Brown performed in the same manner of ill-

intent and lusting wants. Chaffing at the bit, to extract my wealth extremely abusive

mistreatment to pressure me to sell as a product of a major intimidation campaign .

18. Consequently, what occurred is that signed it even though I did not want to, and did not

sign under my own volition. Rather, I only agreed to sign the stipulation from being tricked,

manipulated and pressured as a result of Browns coercion and fraudulent statements. Clearly,

such interference is in accordance to Court Practice and Procedure, title 52, ch. 900, 52-212

II. Grounds For Relief, in 52-212 58 Fraud and 52-212 59 Duress, where statues say:

In making its factual determination whetherstipulated judgment should be opened,

pursuant to C.G.S.A. 52-212a, trial court must inquire into whether decree itself

was obtained by fraud, duress, accident or mistake. (Jenks v. Jenks(1995) 657 A.2d

1107, 232 Conn. 750, on remand 663 A.2d 1123, 39 Conn. App. 139).

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To conclude that stipulated judgment resulted from duress, finder of fact must determine

that misconduct of one party induced party seeking to avoid stipulated judgment to

manifest assent thereto, not as exercise of that party's free will, but because that party had

no reasonable alternative in light of circumstances as that party perceived them to be.

(Jenks v. Jenks (1995) 657 A.2d 1107, 232 Conn. 750, on remand 663 A.2d 1123, 39

Conn.App. 139).

19. Consequently, from my being denied the right to testify it ensured the status quo, of

acknowledgment of plaintiffs fraudulent claims to be legitimate, by the records absence of any

rebuttal to contest the veracity of their fabrications to deceive the tier of facts. Thus, the judges

interference continued to ensure my position was not heard. This was after all the past lost

opportunities caused by my lawyers intentional neglect to expose the criminal conduct of the

adverse party. As where Brown told plaintiff he could not raise any issue besides the lease and

my rental payments in the eviction action, such as with fraud and other misconduct.

20. As a result up until now, I have never been able to contradict plaintiffs outrageous

falsehoods, which are the very antithesis of the truth; such as where they testify to being the

aggrieved party . . . that should have been identified as outrageous lies that could have readily

been refuted by evidence. Whereas, instead of my lawyers impeaching the lies of the opposition,

they would explain to me that it wasnt the time nor place; and other ridiculous reasons to justify

them being ineffective representation.

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21. In effect, I was finally ready to have my day in court, after all my lawyers interfered

with my request that they bring forth for the courts consideration my rebuttals. Unfortunately,

for a reason, yet to be explained, the court did more of the same. Insomuch as, I was about to

give testimonial evidence to clarify what were the true facts contradicting the oppositions

perpetration of a hoax upon the court. This is where I could refer to unimpeachable evidence in

support that would contradict their brazen lies. (See attachment exh. which contains a detailed

compilation of the extensive false declarations of defendants on record and the material facts in

contradiction).

22. However, for a reason that is yet to be explained, Judge Grogins refused to allow me to

testify (exh. ). Rather, instead the judge ruled against me in an arbitrary and capricious manner,

as if I had no right for my argument to be heard as to why my relief of vacating the final

judgment stipulation was justified. Insomuch as if it appears the court felt it was a foregone

conclusion I was to be evicted from my own property. Thus, it didnt matter if I was afforded an

opportunity to plead my position because it would only create dissidence with the justification of

the Courts decision of my eviction.

23. My court experience constituted unfair treatment in a court of equity, as a demonstration

of the courts ill will against me and extending favoritism towards the plaintiffs. Consequently, I

am complaining that my guaranteed rights to justice through a fair trial have been usurped by the

Judge Grogins refusal to allow me to plead my cause and defense. Insomuch as I was blocked

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not only from presenting what my case was about, but I was denied the opportunity to bring to

bear the evidence that would substantiate the veracity to my claims of legal entitlement.

24. Rather, Judge Grogins misuse of his discretionary authority had effectively

circumvented my receiving due process guaranteed by the fourteenth amendment to the

constitution. Thus, the judge denying me of my right to be heard is blatant act of judicial

misconduct and is a violation of his official duty and the publics trust. Essentially, by Judge

Grogins refusal to allow me to plead my position was a decision ofultra vires and a violation of

canons of judicial conduct in section 100.3 that says:

A judge shall perform the duties of judicial office impartially and diligently, (B)

Adjudicative Responsibilities.(6) A judge shall accord to every person who has a legal

interest in a proceeding, or that person's lawyer, the right to be heard according to

law. ( 100.3)

The landmark US Supreme Court decision in Fuentes v. Shevin 407 U.S. 67 (1972) on a State

depriving a citizen of his right to due process in violation of the 14 th Amendment; stated:

For more than a century, the central meaning of procedural due process has been clear:

"Parties whose rights are to be affected are entitled to be heard." Baldwin v. Hall, 1 Wall.

223, 233. See Windsor v. McVeigh, 93 U.S. 274;Hovey v. Elliott, 167 U.S. 409; Grannis

v. Ordean, 234 U.S. 385. It is equally fundamental that the right to . . . an opportunity to

be heard "must be granted at a meaningful time and in a meaningful manner."Armstrong

v. Manzo, 380 U.S. 545, 552.

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http://www.law.cornell.edu/supct-cgi/get-us-cite/93/274http://www.law.cornell.edu/supct-cgi/get-us-cite/167/409http://www.law.cornell.edu/supct-cgi/get-us-cite/234/385http://www.law.cornell.edu/supct-cgi/get-us-cite/380/545http://www.law.cornell.edu/supct-cgi/get-us-cite/93/274http://www.law.cornell.edu/supct-cgi/get-us-cite/167/409http://www.law.cornell.edu/supct-cgi/get-us-cite/234/385http://www.law.cornell.edu/supct-cgi/get-us-cite/380/545


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Fairness can rarely be obtained by secret, one-sided determination of facts decisive of

rights. . . . [And] no better instrument has been devised for arriving at truth than to give a

person in jeopardy of serious loss notice of the case against him and opportunity to meet

it. (Joint Ant-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-172 . . .This

Court has not . . . embraced the general proposition that a wrong may be done if it can be

undone." Stanley v. Illinois, 405 U.S. 645, 647.

25. In fact it can be said that throughout my extensive time before Judge Grogins as a litigant

the instances of his improper treatment towards me compounds its weight upon the other. This is

applicable for the totality of circumstances rule for weighing the weight of evidence that

validates the chronic and extreme persecution of me as an egregiously mistreated litigant.

26. Consequently, the review of the records will establish the cause for disqualification of

Judge Grogins. Since the records would indicate to a detached observer, clear demonstration of

being outrageously bias and unfair during the course of my housing proceeding. This is by his

consistently treating me with personal prejudice and malicious intent, while extending favoritism

towards my opposition; as the record clearly confirms this to be as a material fact. That is

indicated by Judge Grogins palpable gross dereliction of his judicial duty and mindboggling

mishandling of my case; CLEARLY NOT in accordance to the law of the land and standards of

judicial conduct.

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27. Essentially, the cause, for justification of Judge Grogins dismissal from any further

handling of my case is justified by his judicial acts indicating profound partiality to plaintiff.

Such as where he had routinely misapplied the lawand where his fact findingdeterminations are

based on claims of fiduciary facts that he does not believe need to be substantiated by

documentation.

28. Consequently, these inappropriate determinations granted relief to my opposition, even

when they were not legally entitled to as a matter of law, facts, and circumstances. In effect, the

judicial conduct I am identifying herein as being improper was in a pervasive pattern. This is

with Judge Grogins denying me of my rights and serious offenses of violating the judicial rules.

In effect, Judge Grogins desecrated his mandatory compliance obligation to sections of Code of

Judicial Conduct, specifically the Canons 1-3.

29. Wherefore the validating the issues of my grievance would correspond to providing the

relief set forth by Canon 3E of the 1990 Code and Rule 2.11(A) of the 2007 Code; which states

that, as a general matter, a judge must be disqualified from any proceeding in which the

judge's impartiality might reasonably be questioned." Canon 3(E)(1)(a) of the 1990 Code

then identifies four specific situations in which a judge's impartiality might reasonably be

requested and where disqualification is therefore required, but adds that the list is not meant to be

exclusive. Specific to this matter is the first listed situation that indicates disqualification is

justified when:

[(a): judge has a personal bias or prejudice concerning a party..].

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Particular to this matter is with:

(A feeling of ill will or, conversely, favoritism toward one of the parties to a suit is what

constitutes disqualifying bias or prejudice. United States v. Carignan, 600 F.2d 762 [9th

Cir. 1979]; Evans v. Superior Court of Los Angeles County, 107 Cal. App. 372, 290 P.

662 [1930]).

violation of express statutory provisions, bias, prejudice orunworthy motive on the

part of the judge, connected with an interest in the controversy, is cause for

disqualification shown to affect the result (Johnson v Hornblass (1983,1st Dept) 93

AD2d 732, 461 NYS2d 277).

the rules of the Chief Administrator governing judicial conduct require a judge todisqualify himself or herself in a proceeding in which the judge has a personal bias or

prejudice concerning a party. (McKinney's Stds & Adm Policies 100.3(E)(l)(a)(i) [22

NYCRR 100.3(E)(l)(a)(i)]).it is clear that a judge should not be, or appear to be,

aligned with a party appearing before him or her; (Amtorg Trading Corp. v Camden

Fiber Mills (1950) 197 Misc 398, 94 NYS2d 651)therefore, a judge may, and

frequently will, refrain from trying a case even though the claims advanced by the

objecting parties do not show that he or she is legally disqualified. (28 NY Jurs. 2d,

403)....But a perception of such bias must be grounded in good faith and based on

identifiable factors (Chodos v Barresi (1991, 1st Dept) 174 AD2d 359, 570 NYS2d 566).

30. Accordingly, Judge Grogins exercised the degree of "Prejudice" against me that

unequivocally indicates he must be disqualified from any further handling of my case. Since the

amount of prejudice that he extended against me profoundly violated my guaranteed right to fair

treatment in a court of equity. This occurred during the entire course of his official function that

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amounts to a gross dereliction of his professional duty of responsibility. In addition to applying

his discretionary authority to constructively deprive me of my rights to receive due process.

31. Essentially, Judge Grogins performed his official duty of overseeing the disposition of

my case in a manner constituting numerous examples of professional misconduct. This is where

his performance as a State Judge by its very nature is diametrically opposed to the guidelines and

standards of Judicial Conduct. As of what is stated in the Code and Rules contained in the

Federal and Conn. State Laws of Judicial Practice.

32. It can be said the rulings of Judge Grogins is with overlooking discovering when a

partys right to title is essential to determining his jurisdiction to decide on the relief sought.

Clearly, this is judicial conduct adverse to what the United States Supreme Court says:

The aim of these liberal discovery rules is to "make a trial less a game of blind man's

bluffand more a fair contest with the basic issues and facts disclosed to the fullest

practicable extent". United States v. Proctor & Gamble Co., 356 U.S. 677, 683, 78 S.Ct.

983, 986, 2 L.Ed.2d 1077 (1958). . . ."Civil trialsno longer need be carried on in thedark. (Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947).

33. In fact, it can be said that Judge Grogins performance of his judicial duty was where he

continuously adjudicated my case in a manner averse to the application of jurisprudence. This is

judicial conduct with omission of requiring of my opposition to prove their legal right beyond

going by their unsubstantiated claims to base his rulings upon. Consequentially, the court went

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by the weight of what my opposition said as opposed to them being required to prove what they

say by documentation to verify.

34. Whereby, the court not wanting to view the instruments of title and mortgages, even

though I brought to the courts attention foul play was amidst. In addition, I brought to court a

large stack of copies of checks to show I was paying everything to maintain the property and to

refute their claim that I never paid my $1,000 monthly contribution. Yet, the court constructively

deprived me of my rights to justice in a court of equity. Essentially, only my oppositions rights

to be given relief were addressed by Judge Grogins and ruled in support thereof.

35. In effect through the proceedings Judge Groins demonstrated a degree ofprejudice of ill-

will towards me was extreme and chronic. Since, he performed his official duty in an arbitrary

and capricious manner directed to my detriment. While simultaneously, Judge Grogins extended

extreme preferential treatment of support of my opposition for them to realize their legal goals to

consummate their unlawful activities. In addition, plaintiff was routinely given relief without

having any legitimate justification, which validates my grievance of outrageous favoritism. Such

that is diametrically opposed to Judge Grogins being the fair and impartial magistrate towards his

litigants as by law he is required to be; as is stated:

It is a fundamental principle of our legal system that judges should perform their duties

impartially, free of personal interest or bias. "[L]itigants and the public have the right to a

court free from the shadow of unfitness. 'It is the right of every citizen to be tried by

judges as impartial as the lot of humanity will admit. (Mussman, 113 N.H. 54, 302 A.2d

822, 824 (1973) (citing N.H. Const, pt. 1, art. 35)("It is not enough that a judge be

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honest and impartial; it is essential that he have the reputation in his community for being

a man of absolute integrity, whose judgment is not and cannot be influenced by anything

other than the proofs introduced before him in court.(Yengo, 72 N.J. 425, 371 A.2d41, 46

(1977).

36. Whereby, as a causation of Judge Grogins egregious dereliction of performing his

official duty was the furtherance of my oppositions ability to obtain their illegitimate goals. In

effect, the court supported the oppositions ability to consummate criminal objectives. Albeit

carried out through extrinsic fraud and other unlawful acts of conspiracy and outrageous

misconduct. Yet, by the court neglecting to explore due diligence to determine rights of parties, it

turned a blind eye, and afforded passive support thereof to fraudulent misrepresentations of

material facts.

37. As is stated in: Am Jur 2d, Judges 84; Public Officers and Employees 193:

Removal or discipline of state judge for neglect of, or failure to perform, judicial

duties, as setforth in: 87, ALR, 4

th

, 727.

Thus, the question is whether the conduct at issue establishes that the officer lacks the

requisite ability, knowledge, judgment, or diligence to consistently and capably discharge

the duties of the office he or she holds.In re Baber, 847 S.W.2d 800, 803 (Mo. 1993).

Judicial incompetence has been found by courts in other states based on consistent

failures to perform administrative duties,In re Hunter, 823 So.2d 325 (La. 2002), an

intentional disregard of the law,In re Lowery, 999 S.W.2d 639(Tex.Rev.Trib. 1998) or

rulings that "are so far contrary to established law as to demonstrate a lack of

understanding of the law, or an unwillingness to apply it,"In re Baber, 847 S.W.2d 800,

803 (Mo. 1993).

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38. Willful neglect of duty is a crime at common law. State v. Barnett, 69 P.2d 77, 86 (Okla.

Crim. App. 1936). It ordinarily refers to nonfeasance, rather than misfeasance or

malfeasance, in office. Annot,Removal or Discipline of State Judge for Neglect Of, or

Failure to Perform,Judicial Duties, 87A.L.R.4th 727.. It also is found in a variety of

situations where judges fail to schedule hearings promptly,Re Seitz, 495 NW2d 559

(Mich. 1993)-ReMacDowell, 393 NYS2d748 (App.Div. 1977), unduly delay decisions in

casesReLong, 772 P2d

39. Thereby, to support my right to be granted the disqualification sought the law says:

As stated in 28 U.S.C. 455 (1982); This principle of impartiality is embedded in

statutory and common law)(is an aspect of due process of law, Berger v. United

States, 255 U.S. 22, 41 S. Ct. 230, 65 L. Ed. 481 [1921]); (and is a requirement of the

Code of Judicial Conduct. see Richard Flamm, Judicial Disqualification: Recusal and

Disqualification of Judges [2nd ed. 2007]).

40. Further, law on recusal says:

("requires an objective assessment of whether or not it appears that a challenged judge

can act in an impartial manner.; State v. Am. TV and Appliance of Madison, Inc., 151

Wis. 2d 175, 443 N.W.2d 662, 665 [1989])("We must uphold a system that requires

recusal when a reasonable basis exists for a party requesting disqualification to

doubt the judge's impartiality"); York v. U.S., 785 A.2d 651,655 (D.C. 2001) ("to

preserve the integrity of the judiciary...judges must adhere to high standards of conduct");

Baier v. Hampton, 440 N.W.2d 712, 715 (N.D. 1989)The court's primary concern is

the preservation of public respect and confidence in the integrity of the judicial system")("a judge must comply with the law...and act in a manner that promotes public

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confidence in the integrity and impartiality of the judiciary,"K.E.M., 89 S.W.3d 814, 820

[Tex. App. 2002]).

41 Whereas, 22 NYCRR, part 100. states: A judge shall uphold the integrity and

independence of the judiciary Although judges should be independent, they must comply

with the law, including the provisions of this Code. Each judge is personally obligated to

act in accordance with law and standards of judicial conduct., Sardino v. State Com'n

Judicial Conduct, 1983, 58 N.Y.2d 286, 461 N.Y.S.2d 229, 448 N.E.2d 83).

42 (A court's assumption of jurisdiction of a controversy in some situations is dependent

upon an exercise of discretion, the court being empowered to act or to refuse to act inaccordance with the dictates of the judicial conscience; People v. System Properties, Inc., 2

N.Y.2d 330, 160 N.Y.S.2d 859, 141 N.E.2d 429 [1957])(The "conscience" which is an

element of equitable jurisdiction is not, however, the private opinion of an individual court,

but is rather to be regarded as a metaphorical term, designating the common standard of civil

right and expediency combined based upon general principles and limited by established

doctrines to which the court appeals and by which it tests the conduct and rights of suitors. It

is a judicial and not a personal conscience; National City Bank v. Gelfert284 N.Y. 13, 29

N.E.2d 449, 130 A.L.R. 1472 [1940]).

43 Aslong as the demand clause covers all of the possible relief items that the proof may

justify, the ultimate choice of available relief lies with the sound judgment and discretion of

the trial court;Ungewitter v. Toch, 31 A.D.2d 583, 294 N.Y.S.2d 1013 (3d Dep't 1968).

Clearly the aforementioned behavior of Judges Grogins violated Canon 2, which says:

1) A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of

the Judge's Activities

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2) A judge shall respect and comply with the law and shall act at all times in a

manner that promotes public confidence in the integrity and impartiality of the judiciary.

3) The test for appearance of impropriety is whether the conduct would create in

reasonable minds a perception that the judge's ability to carry out judicial responsibilities

with integrity, impartiality and competence is impaired.

4). Integrity of decision-making body must be above reproach and even the appear-

ance of impropriety should be avoided. (DeCamp v. Good Samaritan Hospital(2 Dept.

1978) 66 A.D.2d 766, 410 N.Y.S.2d 671).

40. A judges conduct as is defined in NY 101.3-Abusive behavior:

Judge's conduct violated defendants' due process rights, was damaging to the institution

in general, and qualified as truly egregious, causing irretrievable loss of confidence in

judge's ability to carry out his responsibilities.(In re Restaino, 10 N.Y.3d 577, 860

N.Y.S.2d 462, 890 N.E.2d 224 (2008).

41. Whereby, the facts on record give testament to the fact that these Judges adjudication of my

case was with profound prejudice shown against me. This prejudice was to such an extent so as

to indicate their judicial determinations were done with fixed prejudgments; as with considering

the facts and circumstances involved in making his determinations.

42. In fact, it can be said that Judge Grogins, deprived me of my right to receive the required

hearings and further egregiously deprived me of basic due process rights. This is where in an

outrageous manner I was treated unfairly; such as by Judge Grogins unjustified decisions that

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indicated he precluded the fair weighing of the evidence. "what cannot be tolerated is an

unfavorable decision that is seen as not simply wrong, but unfair; (Wise. Steel Corp., 48 B.R.

753, 762 (N.D. 111. 1985).

43 Cause for judicial discipline is to be found not only in the guidelines contained in

the Canons of Judicial Ethics and the Rules Governing Judicial Conduct of the

Administrative Board of the Judicial Conference, but also in the general moral and ethical

standards expected of judicial officers by the community.; Matter of Byrne, 1979, 420

N.Y.S.2d 70; See, also, (Matter of Owen, 1978, 413 N.Y.S.2d815).

44. In addition to conduct that violatedCanon no. 3-A Judge Shall

Perform the Duties of judicial office impartially and diligently, where:

1). A judge shall be faithful to the law and maintain professional

competence in it.

2). A judge shall perform judicial duties without bias or prejudice againstor in favor of any person. A judge in the performance of judicial duties shall

not, by words or conduct, manifest bias or prejudice

3). A judge shall accord to every person who has a legal interest in a

proceeding, or that person's lawyer, the right to be heard according to law.

7) A judge shall dispose of all judicial matters promptly, efficiently and fairly.

"Since an appearance of bias may be just as damaging to public confidence...as the actual

presence of bias, acts or conduct giving the appearance of bias should generally be avoided

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in the same way as acts or conduct that inexorably bespeak partiality"; ( People v.

Bradshaw, 171 111. App. 3d 971, 525 N.E.2d 1098, 1101 (1988)(The integrity of the

judicial system should be protected against any taint of suspicion (McFall, 383 Pa. Super.

356, 556 A.2d 1370, 1376 (1989); State v. Neeley, 748 P-2d 1091 [Utah 1988]).

Fairness can rarely be obtained by secret, one-sided determination of facts decisive of

rights. . . . [And] no better instrument has been devised for arriving at truth than to give a

person in jeopardy of serious loss notice of the case against him and opportunity to meet

it. (Joint Ant-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-172) . . .This

Court has not . . . embraced the general proposition that a wrong may be done if it can be

undone." Stanley v. Illinois, 405 U.S. 645, 647.

44. Wherefore as in accordance to the history of the past judicial performance of Judge

Grogins, I have just cause to believe" that I would again be denied my right to fair treatment.

Specifically, to bar Judge Grogins from any further handling of the action pending for my

eviction and any others thereafter. Since, his past prejudice extended towards me has been so

extreme there is reason to conclude that he will repeat what he did before. Specifically, this is

where he arbitrarily decided the issues of dispute against me and without any legitimate of legal

justification to favor plaintiff. This is with handling my case that was constantly and

continuously adjudicated in a pervasive pattern averse to jurisprudence. Essentially, by

performing his official duty in a capricious manner to my detriment and unjustly favored the

opposition without legitimate justification.

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45. It is established that: Courts have the discretion to disqualify lawyers for violating

ethical rules . (Wolt v. Sherwood, Inc., 828 F. Supp. 1562, 1569 (D. Utah 1993). Palumbo v.

Tele-Comms., 157 F.R.D. 129,131 (D.D.C. 1994). However, the rules violated by defendants

lawyers from the firm Martha Cullina,, Stevan Phillips and their current lawyer Kaelin goes

beyond deviating from adhering to the standards of ethical restraint. Insomuch as the rules of

professional misconduct that they violated corresponds to numerous penal law infractions. Not to

mention some are serious felonies such as bank fraud. Whereby, their criminal activity that

stands out on the surface is their making various false declarations to the court, corresponding to

the central issues in dispute.

Courts have said that disqualification should be ordered only when the nature and

extent of the ethical violation1 are such that the court finds that such a remedy is

absolutely necessary.2

46. Whereas, the record proves that disqualification is necessary because Kaeilins and

Phillipss perjuries were intended not only to deprive plaintiff from receiving a fair decision, butwere dedicated to cheat him and further a criminal enterprise of defendants. Albeit this is an

enterprise based on fraud and extortion that they were not only complicit with put played active

roles to further achieving a common goals. These following declarations of material fact by

Kaelin can be refuted by verifiable material facts to validate the perjury.

Footnotes

1. See FDIC v. United States Fire Ins. Co., 50 F.3d 1304, 1313 (5th Cir. 1995); Palmer v.

Pioneer Hotel & Casino, 19 F. Supp. 2d 1157, 1162 (D. Nev. 1998); Venable v. Keever, 960 F.

Supp. 110, 113 (N.D. Tex. 1997); Smith v. Bd. Of Educ, 650 F. Supp. 44,46-47 (D. Utah 1986)

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(noting that an alleged violation of the law governing the conduct of lawyers requires a careful

analysis of the nature of the violation and its impact upon the trial proceedings); Hoffmann, 533

N.W.2d at 836 ("It is not a time to 'paint with broad strokes,' but to carefully examine the

specific conduct of each particular case").

2. See, e.g., Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir. 1993); City of Youngstown v.

Joenub, Inc., 2001 Ohio App. LEXIS 4438, at *21 ("the party asserting the conflict must prove

[that disqualification] is necessary"); Interactive Coupon Mktg. Group v. H.O.T.! Coupons, 1999

U.S. Dist. Lexis 9004 n.4 (N.D. 111. 1999); Nuri, 5 F. Supp. 2d at 1304. Cf. Norman Reitman

Co. v. IRB-Brasil Resseguros, 2001 U.S. Dist. LEXIS 16073, at *10 (S.D.N.Y. 2001) ("some

courts are hesitant to disqualify counsel until absolutely necessary"); State v. Vumback, 247

Conn. 929, 933, 719 A.2d 1172 (1998) (Berdon J., dissenting); In re Firestorm 1991, 129 Wash.

2d 130, 140, 916 P.2d 411 (1996); Jones v. Am. Empl'rs Ins. Co., 106 Ohio App. 3d.

636,641,666 N.E.2d 1152 (1995)

WHEREFORE, defendant prays for relief of the disqualification and recusal of Judge Grogins

and any other relief that the Court may deem is just and proper.

Dated: February 1, 2010

Defendant, Delmo L. Zanette, pro-se____________________________1353 King StGreenwich, Connecticut 06830914-844-0224

To: Robert Kaelin Defendants residing until April 3, 2009Dena M. Castricone Delmo ZanetteMurtha Cullina LLp c/o Steven GramacyCItyPLace I-185 Asylan Streeet 127 Bird of Paradise

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Hartford, Connecticut 06103 Palm Coast, FL 32137Tel: 860-240-6000 914-844-0224

Case Law Discussion on Justification for Recusal Action

In State Ex Rel. Wesolich v Goeke (Hon.) 794 S.W. 2d 692, the judges established a criteria to

test if a cited judge is being bias in his (or her) handling a case of equity to a divorce proceeding

from the state court, where it says:

1) "Prohibition is an independent proceeding to correct or prevent judicial proceedings

that lack jurisdiction. (State ex rel. Raack v. Kohn, 720 S.W.2d 941, 943 (Mo. banc

1986). If a judge either fails to disqualify himself upon a proper application or denies the

application without a proper hearing, he is without jurisdiction and prohibition lies.

2) "No system of justice can function at its best or maintain broad public confidence if a

litigant can be compelled to submit his case in a court where the litigant sincerelybelieves the judge is incompetent or prejudiced [T]hat is the price to be paid for a

judicial system that seeks to free a litigant from a feeling of oppression. (State ex rel.

McNary v. Jones, 472 S.W.2d 637, 639-640 (Mo.App. 1971). Indeed, the right to

disqualify a judge is "one of the keystones of our legal administrative edifice. (State ex

rel. Campbell v. Kohn, 606 S.W. 2d 399 [Mo.App.1980]). It is vital to confidence in the

legal system that the courts are not only are fair, but also appear fair. Thus, whether the

disqualification of a judge hinges on a statute or on a rule, we adhere to the liberal

construction of that statute or rule in favor of the right to disqualify. A liberal

construction is necessary if we wish to promote public confidence in the judicial system.

(Kohn, 606 S.W.2d at 401; Ford Motor Co. v. Hess, 73! 148 [Mo.App.1987]).

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3) This case reflects the practice of the informal pretrial conference whereby, prior to

trial, the lawyers confer with the judge and set forth the evidence that might be adduced if

the case were tried as a contested matter. The attorneys then attempt to elicit the judge's

opinion regarding a possible settlement of the case. After the conference, it is customary

for the attorneys to discuss the judge's suggestions with their clients. It is imperative that

the judge not be unduly guarded in these exchanges with the lawyers. Otherwise, the

purposes of the pretrial conference are eviscerated. It is equally important, however, that

the judge avoid a firm expression of prejudgment on the case prior to hearing all of the

evidence. See State v. Lovelady, 691 S.W.2d 364, 367 (Mo.App.1985).

Although we do not speak to the merits of the underlying action in the case before us, it

is likely that in any dissolution proceeding one or both of the litigants emerge feeling that

the final decree entered by the trial judge is erroneous. Frequently, each party leaves the

courtroom feeling that he or she lost. Even in the best of circumstances, a litigant's

confidence in the integrity of the judicial system is shaken. When a litigant's general

disillusionment with the judicial process combines with a litigant's specific perception

that the trial judge was biased or prejudiced in his or her case, the goal of maintaining

broad confidence in our court system is ill-served.

[4] Subject to certain minimal procedural requirements, any party is entitled to one

change of judge as a matter of right. See Rule 51.06. Rule 51.05 governs peremptory

disqualification of a judge in a civil matter. Under that rule, the only prerequisite for

obtaining a change of judge is a timely application and service of a copy of the

application and notice of hearing on the other party. Hess, 738 S.W.2d at 148. No reason

need be alleged for the disqualification under Rule 51.05. Upon presentation of a timely

application for change of judge, the judge shall sustain the application. Rule 51.05(e).

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[5] Any party, his agent or attorney, may present to the court, or judge thereof in

vacation, a petition setting forth the cause of his application for disqualification of the

judge or for a change of venue, and when he obtained his information and knowledge of

the existence thereof; and he shall annex thereto an affidavit, made by himself, his agent

or attorney, to the truth of the petition, and that affiant has just cause to believe that he

cannot have a fair trial on account of the cause alleged.

[6] In addition,..by alleging that judge's comments not merely gave rise to "just cause

to believe" that the trial would not be fair, but actually "demonstrated" bias and prej-

udiceNothing is more fundamental than that the law regards substance rather than

form, so that where the applicant for a change of venue alleges and swears to those facts.

[8] If the facts in the application are to be controverted rather than accepted as true for

purposes of the motion, a hearing on the record must be held. The majority opinion in

Berry v. Berry, 654 S.W.2d 155, 158 (Mo.App.1983) suggested that the challenged judge

is the proper arbiter to hold an evidentiary hearing as to his own fitness to hear the case. 3

The concurring opinion stated, however, that the challenged judge "should call upon

another circuit judge to hear and rule the matter." Id. at 162. Obviously, if the challenged

judge is to testify, a different judge must hear the matter. No matter who decides the dis-

qualification issue, appellate review is limited to deciding whether the trial court's ruling

on the claim of prejudice amounted to an abuse of discretion. Id. at 159.

[9-13] Prejudice is the attitude of personal enmity towards the party or in favor of the

adverse party to the other's detriment. It is not the mere possession of views regarding the

law or the conduct of a party or of his counsel. Prejudice is in the personal sense rather

than in the judicial sense. Prejudice refers to a mental atti tude or a disposition of the

judge towards a party: either a hostile feeling or spirit of ill-will against one of the

litigants, or a favoritism towards one of them. Bias and prejudice to be disqualifying must

stem from an extrajudicial source and result in an opinion on the merits on some basis

other than what the judge learned from his participation in the case. United States v.

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Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). An im-

personal prejudice resulting from background experience is insufficient.4 United States v.

Hollis, 718 F.2d 277, 280 (8th Cir.1983), cert, den., 465 U.S. 1036, 104

In S.Ct. 1309, 79 L.Ed.2d 707 (1984), A judge should withdraw from a case only when

the facts show prejudice to such an extent so as to evince a fixed prejudgment

and to preclude a fair weighing of the evidence. See Lovelady, 691 S.W.2d at 367-368

(judge's recusal compelled because of language and conduct which indicated a fixed

prejudgment of criminal defendant's tendered defense of mental disease or defect).

[14] In addition, Rule 2, Canon 3 C(l) of the Code of Judicial Conduct provides that

"[a] judge should disqualify himself in a proceeding in which his impartiality might

reasonably be questioned, including but not limited to instances" specified in the rule.

Thus, the canon is broader than the statute. First, the four subparagraphs of Rule 2, Canon

3 C(l), which set forth the circumstances for disqualification, are a clear directive to

disqualify.Berry, 654 S.W.2d at 163 (Dixon, J., concurring). When one of these causes to

recuse appears, a judge must do so. Id. Moreover, the phrase, "including but not limited,"

signifies that a judge's duty to disqualify is not confined to the factors listed in the

subparagraphs, but

[15]. As a result of the disqualification of a judge, it is inevitable that some delay occurs

in the adjudication of the case assigned to that judge. Under Rule 51.05, because of the

time constraints, the delay is minimal. Challenges for cause, under either the statutes or

canon, are rare is much broader. Second, Rule 2, Canon 3 C(l) commands the

disqualification of a judge if "his impartiality might reasonably be questioned." See

Grant v. State, 700 S.W.2d 170, 171 (Mo.App.1985). Thus, under the canon, the test is

not whether actual bias and prejudice exist, but whether a reasonable person would have

factual grounds to doubt the impartiality of the court. Berry, 654 S.W.2d at 164 (Dixon,

J., concurring). If, on the record, a reasonable person would find an appearance of

impropriety, the canon compels recusal. Id.

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It would appear that the alleged facts set forth in wife's motion satisfied the test of

disqualification under the canon even more clearly than under the statutes.

Based upon judge's comments and rulings a reasonable person could have suspected

judge's partiality. A reasonable person could have perceived judge's statements not only

as tantamount to comments on disputed matters in the present action but also as

indicative of an alignment with one of the parties to the action. Clearly, a reasonable

person could have questioned whether the court's judgment would have been tainted by

the emotions and preconceptions that judge harbored as a result of his own dissolution

proceeding. Again, at the very least, wife was entitled to a hearing on the record on the

disqualification issue. We suggest that the procedures for recusal under the canon closely

follow those proposed by the statutes.

5

[15-18] In summary, when a litigant seeks to disqualify a judge for cause, the judge

should adhere to the following procedures. First, the challenged judge should determine if

the motion is procedurally adequate: Does it meet the statutorily prescribed requirements

of time, of notice, and of form? Next, the judge should determine whether the petition is

substantively adequate: Does the petition allege facts which warrant disqualification for

cause, because of the stringent procedural and substantive requirements for such an

application and because of the professional reticence of attorneys to file spurious

motions. Spurious notions can be dealt with under Rule 55.03 relating to sanctions.

If, the motion is procedurally and substantively sufficient, the judge is faced with two

options: either to grant the motion; or, if the facts in the motion are to be controverted, to

hold a hearing on the record, whether requested or not, to determine the disqualification

issue. If the challenged judge is to testify, the hearing must be held before another judge.

These minimal procedures are necessary because, in the face of a proper application for a

change of judge, the judge lacks jurisdiction to proceed in the action in which his

impartiality is questioned.

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3). 28 U.S.C. Section 455(a) provides: "Any justice, judge, or magistrate of the United

States shall disqualify himself in any proceeding in which his impartiality might

reasonably be questioned."

4.). On the face of a petition, the following allegations were held to be insufficient to

show the prejudice necessary to compel recusal: court's rulings in the case. Hanger v.

U.S., 398 F.2d 91, 100 (8th Cir.1968), cert, den., 393 U.S. 1119, 89 S.Ct. 995, 22

L.Ed.2d 124 (1969).

5). The judges offensive conduct rises to a level that is legally sufficient to disqualify a

judge from the duty of hearing a case. In re J.P. Linahan, Inc., 138 F.2d 650, 651-652

(2nd Cir.1943). A judge's idiosyncratic or uniquely personal prejudice deserves no

tolerance.

Joint trials are favored in cases that are asserted under Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 USCS 1961 et seq., because RICO counts are often

intended to allow joinder of separate incidents and defendants into single trial; even if all

defendants are not charged with all predicate acts, joinder is proper to prove existence of

enterprise and by establishing requisite relationship. United States v Megale (2005, DC

Conn) 363 F Supp 2d 359.

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