Stephen D. Chamberlain * In the Appellant, * COURT OF SPECIAL APPEALS v. * No. 2594 Judith C. Chamberlain * September Term, 2014 Appellee. * MOTION FOR RECUSAL, Comes now the Appellant, Stephen D. Chamberlain, pro se litigant, files this Motion for Recusal, and in support of such motion, states the following: 1. Pursuant to Md. Rule 16-813, and to preserve due process protections found in the Fourteenth Amendment to the United States Constitution, the Appellant respectfully requests the Honorable Judge Alexander Wright, Jr. recuse himself from participation in any discussion pertaining to Appeal #2594 September Term 2014 which is currently before this Court, the Consent Order entered by the Circuit Court on June 5, 2014, ot any other matters related to this case. 2, The question of recusal, at least in Maryland, ordinarily is decided first by the judge whose recusal is sought, Surratt v, Prince George’s County, 320 Md. at 439, 578 ‘A.2d at 745 (1990).3. The decision to recuse is a discretionary one unless the basis asserted provide the grounds for mandatory recusal. 4, The standard to be applied is an objective one — "whether a reasonable member of the public knowing all the circumstances would be led to the conelusion that the judge's impartiality might reasonably be questioned.” In re Turney, 311 Md. at 253, 533 A.2d at 920 (1987); Md. Judicial Ethics Handbook (1989), Judicial Ethics Committee Opinion No. 107, B-193, B-194 (1985). 5. “The obligation of a judge with respect to recusal does not end with the mandatory provisions of a constitution, statute or rule. The judge must also consider whether it would otherwise be improper to preside in the case, or if not improper, whether participation would give the appearance of impropriety.” Inxe Tumey, 311 Md. at 253, 533 A.2d (1987). (emphasis added) 6. The Appellant respectfully submits that Judge Wright’s opinion in Appeal #719 September Term 2014, which is directly intertwined with questions presented in Appeal #2594 currently before this Court, and his position as Chair of the Maryland Commission on Judicial Disabilities, mandate recusal. 7. On April 14, 2014, the Plaintiff (Appellee here) in Case #02-09-139690 filed a Request for Voluntary Dismissal. The basis for this request was explicit: “Given that the relief requested in Plaintiffs Complaint to Enforee is now moot and the issue involving each parties’ future obligation to contribute towards college tuition payments has yet to mature, there is no longer any need for the hearing currently set on April 18, 2014.” Furthermore, the Appellee stated “Pursuant to Rule 2-506, the Plaintiff requests this Court enter an Order ofPlaintiff"s voluntary dismissal of the Complaint to Enforce so that the hearing on April 18, 2014 may be cancelled . . . .” (#719 September Term 2014 Record Extract Pg. 113). 8. On April 17, 2014, the Defendant (Appellant here) filed a Response which was also hand-delivered to the Honorable Judge Paul F. Harris’s chambers. The Defendant concurred that the controversy before the Court had become moot: “That, while the Defendant does not dispute that John’s decision to file for admission to colleges before receiving the assent of his parents does render the issue upon which the Plaintiff sought a declaratory judgment to be a ‘moot’ issue, the dispute has been moot for several months but has nevertheless been carried forth by the Plaintiff at considerable expense to both parties in attorney’s fees and legal expenses, including both parties’ preparation for and attendance at a Motion for SummaryJudgment hearing held on January 9, 2014.” (#719 September Term 2014 Record Extract Pg. 116). 9. During preliminary issues at the commencement of the Merits Hearing the following day, the opening dialogue provides irrefutable evidence (a) the trial judge was aware formal pleadings had been filed by both parties that declared the only issue before the Court to be moot, (b) both parties had requested a dismissal, (c) the issue was proven to be moot, and (d) no evidence was presented which would explain how the issue which had been declared moot by the Plaintiff just 3 days earlier could become “un-moot” by withdrawing the motion requesting dismissal. (E-130-145) 10. Judge Wright’s unreported opinion of Appeal #719 September Term 2014 does not appear to be reconcilable with law. (#2594 E-163-169, E-1921-193, F-212-220) When a reasonable person reviews the evidence and legal argument presented in the Appellant’s briefs and contrasts that with Judge Wright’s opinion, it is difficult to conclude that the justifications provided in his opinion which affirmed the lower court’s jurisdiction to hear the matter could be mere error, (Appellant's Brief and Reply Brief case #719 September Term 2014), 11, Judge Wright acknowledged the “initial issue” brought before the Court was moot. And it was proven to be so. (See citations above) However, Judge Wright’s 3characterization that this was only the “initial issue” is factually incorrect. The declaratory judgement action only concerned college applications. (5-15; see Plaintiff's Declaratory Judgment ad damnum clause). The record is replete with evidence that the declaratory judgment involved the singular issue of college applications. (E-58, F-130-145) The totality of the action was to determine whether one, single unambiguous sentence in a contract which explicitly stated that three parties needed to agree where to send college applications could interpreted by the Court to say the son could “apply to the schools of his choice in order to determine whether or not he qualifies for admission and may be entitled to any scholarships.” (It is important to remind the Court that at the time the underlying litigation was initiated, all three parties to the contract had agreed to send an application to Aubum University. An application was sent, the Mother paid the application fee and the son was subsequently accepted. After Auburn offered him a full four year academic scholarship, he rejected it and opted to apply to Virginia Tech without the Consent of his Father.) (E-17 Motion for Summary Judgment Exhibits B and C) 12. _ In addition, after conceding that both parties had declared the issue moot, Judge Wright then incorrectly stated that the “Mother withdrew that contention at the hearing”. No evidence can be pointed to in support of such a statement. While the Mother did seek the Court's permission to withdrawal her Request for Voluntary Dismissal (E-133), the record is devoid of any contention that the issue which had been brought before the Court more than 200 days earlier, and declared to be moot by herself just 3 days earlier was again “live”. (E-133-145) As there is no evidence in the record which could lead Judge Wright to believe that the “contention” of mootness was withdrawn, it appears he is suggesting that the Plaintiff could withdraw her Request for Voluntary Dismissal and confer jurisdiction on the lower Court to hear the moot case. It is well settled, though, that a party cannot confer jurisdiction on a court.13. Judge Wright’s declaration that “the circuit court determined that there was a controversy upon which the court could provide an effective remedy” wrongly suggests the Court can confer jurisdiction on itself. Only a party can bring a controversy before the court for adjudication. The Court cannot introduce its own controversy to adjudicate. Both parties declared in writing that the only controversy before the court had become moot and sought dismissal. (E-15 Declaratory Judgment Pg. 3 Ad Damnum Clause; E-25 Plaintiff's Request for Voluntary Dismissal and E-25 Defendant's Response to Plaintiff's Request for Voluntary Dismissal; also see E-130-145 for transcript of Mr. Kevin Schaeffer, the Appellant's then attomey, directly pointing out the singular issue before the Court and why no other controversy existed). And while it is true the Court makes the egal determination of mootness, it must make that determination only based on the facts and evidence before it. (Md. Rule 16-813 Rule 2.9(c)). It is inarguable the evidence before the lower court showed the only issue before it to be moot. (E-15 Plaintiff's Request for Voluntary Dismissal, E-15 Defendant’s Response to Plaintiff's Request for Voluntary Dismissal, E-130-145 Transcript Excerpt showing proof of mootness and complete absence of any evidence refuting this fact). The court has no authority to introduce additional questions for which the Plaintiff did not seek answers or additional issues for which the Plaintiff did not seek relief. The law clearly requires dismissal of a case whenever there is an appearance of a lack of subject matter jurisdiction. (Md. Rule 2-324(b)). In this case, there was not just an appearance of a lack of subject matter jurisdiction; it was proven. (See citations above), 14, Judge Wright further suggested the lower court had jurisdiction because “the issue of whether the Father's consent would be required in order to pay for college was a lingering outstanding controversy.” The Plaintiff herself, in the court below, unequivocally declared the “issue involving each parties’ future obligation to contribute towards college tuition payment has yet to mature.” (E-25 Plaintifl’s Request for Voluntary Dismissal) And as the son had not yet begun to attend college, and no collegepayments were due, this “issue” cannot be considered ripe. A reasonable person would find it difficult to understand Judge Wright's reasoning that a future, hypothetical issue which had been declared as “not mature” by the Plaintiff herself could be considered a “lingering outstanding controversy” and within the jurisdiction of the court to make a declaratory judgment. (For voluminous citations, please see Appellant's Brief #719 Pgs. 13-18; also see Md. Court’s and Judicial Proceedings 3-409(a)(1) where it states a court may grant a declaratory judgment if it will serve to terminate the_uncertainty or controversy giving rise to the proceeding . . . and an actual controversy exists between contending parties.) (emphasis added) 15. Judge Wright’s opinion is also devoid of comment on the specific issue raised on appeal that the agreement in question was voidable because it was missing essential terms and had been modified by the trial judge. (B-169-180) While it is common for an appellate court to re-word the issues presented for review, it has no authority to completely ignore issues presented, and the substantial evidence provided to Support those issues, as was done here. (Appellant's Brief Pgs. 19-30). 16. Judge Wright also appears to have completely overlooked substantial evidence proving duress, including the trial judge’s failure to comply with simple and clear law (Md. Courts and Judicial Proceedings 3-405, E-169-180), taking of parole evidence prior to interpreting the contract language (Record Extract Appeal #719 September Term 2014 Pgs. E179-211), and circumstantial evidence of serious judicial overreach during an in chambers discussion (E-175, E-270-275). Instead, Judge Wright appears to have completely relied on one moment in the trial and one sentence from the trial judge. No reasonable mind could overcome the appearance of partiality after reviewing the extensive record substantiating the duress present at the time of the voir dire and comparing that evidence to Judge Wright’s absolute reliance on the trial judge’s ability to judge the credibility of a witness. Simply put, it borders on impossible to suggest, as Judge Wright did, that a lower court which allegedly acted in the clearabsence of jurisdiction by proceeding to hear a moot case, that failed to apply clear and settled law by not joining the third party beneficiary to the action as required by law (read twice to him on the record, explained at length, and with agreement of opposing counsel), that failed to interpret a contract prior to taking parole evidence, and that judicially overreached during an in chambers discussion was “in the best position to evaluate whether the parties were under duress.” Of signal importance is this Court’s denial of a request to consider an audio transcript of the voir dire process (E-123, E-125) which showed intonation and pauses corroborating the Defendant's assertion he was under duress when the voir dite occurred. To suggest the trial judge was in the best position to judge the credibility of the witness, while ignoring the clear and substantial evidence of duress present in the record, and after rejecting the opportunity to hear an audio excerpt of the voir dire which corroborated the duress present at that moment, surpasses the threshold of the “appearance” of partiality 17. Judge Wright also provided a purported statement made by the Appellant, in quotations, in his opinion. (Unreported Opinion #719 September Term 2014 Pg.8) Yet the letter pointed to by Judge Wright, which is indeed not part of the record, will reveal this quoted statement to be inaccurate. This, by itself, is disturbing conduct by any officer of the Court. 18, Judge Wright’s opinion provides more than sufficient evidence that his impartiality might reasonably be questioned. Disqualification is mandatory pursuant to Ma. Rule 16-813, Maryland Code of Judicial Conduct, Section 2. Rule 2.11(a): “A judge shall disqualify himself or herself in any eee in which the judge's impartiality might reasonably be questioned . . 19. Judge Wright's position as Chair of the Commission on Judicial Disabilities and his association with attomeys investigating a lengthy misconduct complaintregarding the actions of the lower court judge in this case, specifically allegations the judge had acted in the clear absence of jurisdiction, concurrently with his participation as an appellate judge making legal determinations over the exact same issue is an unmistakable and substantial conflict of interest. Disqualification is mandatory pursuant to Md. Rule 16-813, Maryland Code of Judicial Conduct, Section 2. Rule 2.11(a)(5): (A) served as a lawyer in the matter in controversy, or was associated with a Lawyer who participated substantially as a lawyer in the matter during such association. (emphasis added) 20. — Inhis position as Chair of the Commission on Judicial Disabilities, it would be implausible to suggest there was no communication between the Commission and the trial judge in response to such a lengthy complaint supported by substantial evidence. This communication would necessarily violate multiple rules. Rule 2.9 Ex Parte Communication (emphasis added): (a) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge out of the presence of the parties or their lawyers, concerning a pending or impending matter . . (©) A judge shall not investigate adjudicative facts in a matter independently, and shall consider only the evidence in the record and any facts that may properly be judicially noticed. (d)[5] The prohibition against a judge investigating adjudicative facts in a matter extends to information available in all mediums, including electronic. a. not a request for discretionary recusal. Pursuant to Md. Rule 16-813, Rule 2.11(c)(a)[1] Under this Rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific provisions ofparagraphs (a) (1) through (5) apply. In this Rule, "disqualification" has the same meaning as "recusal." (emphasis added) 22. Judge Wright’s legally implausible justifications for affirming the lower court’s jurisdiction over the facially moot case is also a violation of Rule 1.1. Compliance With The Law: A judge shall comply with the law, including this Code of Judicial Conduct. 23. Of signal importance is the unambiguous wording within Rule 1.2 which defines the test for the appearance of impartiality as being created in “reasonable minds.” ‘The test is not whether the judge himself, other judges, or anyone in the legal community would perceive the appearance of impropriety or partiality. ‘The test is whether the appearance of partiality could be created in the reasonable minds of the public at large. Rule 1.2. Promoting Confidence in the Judiciary (a) A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary. (b) A judge shall avoid conduct that would create in reasonable minds a perception of impropriety. LI] 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 persons, and must accept the restrictions imposed by this 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, and this Code. 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 competence, impartiality, and integrity is impaired. (emphasis added) 24, Lastly, the Appellant points to the preamble of the Judicial Code of Conduct which begins by stating: ‘An independent, fair, competent, and impartial judiciary composed of men and women of integrity who will interpret and apply the law that governs our society is indispensable to our system of justice. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system. 25. “Impartial” is defined in the Judicial Code of Conduct as the “absence of bias or prejudice in favor of, or against, particular parties or classes of parties, ax well as maintenance of an open mind in considering issues that may come before a judge. Judge Wright has already determined the lower court acted within its jurisdiction. As one of the defenses to the contempt charges currently pending review in Appeal #2594 September Term 2014 relies on law which prohibits the finding of contempt for disobedience to an unlawful order, which the Appellant alleges is the case here based on. the lower court's absence of jurisdiction to proceed with the April 18, 2014 hearing, and the evidence supporting that contention is again presented to this Court for review, it is unreasonable to believe Judge Wright could somehow come to a different conclusion than 10the one he provided in his opinion in Appeal #719. ‘The Appellant is constitutionally guaranteed an opportunity to present his appeal before a fair tribunal. Presenting the same evidence of mootness to a judge who has previously considered the same evidence yet affirmed the lower court’s jurisdiction cannot be classified as having the opportunity to be heard by a fair tribunal. 26. As Judge Wright’s opinion in #719 September Term 2014 cannot be reconciled with the evidence which was before him and the clear and settled law of this state, as well as the significant conflict of interest presented by writing an opinion affirming the actions of a lower court judge while also acting as Chair of the Commission on Judicial Disabilities investigating those specific actions, the Appellant respectfully requests Judge Wright recuse himself from participation in Appeal #2594, as well as any further discussions related to this case. No reasonable person could read the briefs of this case, review the unrefuuted evidence, and come to any conclusion other than an appearance of partiality exists which requires mandatory recusal. 27. The Appellant urges this Court to refrain from an instinctive response to the allegations presented in support of a request for a member of this tribunal to recuse himself. ‘The Appellant respectfully believes his Due Process rights guaranteed by the Fourteenth Amendment, and the Judicial Code of Conduct, require recusal in the present circumstances. A cursory review of the evidence should lead to the inexorable conclusion that regardless of Judge Wright’s actual ability to be fair and impartial, the evidence leads any reasonable mind to see, with clarity, the appearance of partiality "28. While issues such as this as difficult to raise as they are to resolve, the Appellant pleads with this Court to consider an observation made by Judge Smith in his dissenting opinion in In re Diener and Broccolino, 268 Md. 659, 698, 304 A.2d 587 (1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974): “Courts, be they high or low, should and must be like Caesar's wife, above suspicion. Any other standard is one which undermines the trust and confidence of the average citizen in his government.” WHEREFORE, the Appellant respectfully request this Court: a. Order the recusal of Judge Wright should he fail to recuse himself in matters pertaining to Appeal #2594 September Term 2014. b. In the alternative, schedule a hearing on the matter in order for the Defendant to provide additional evidence in support of his request for recusal, c. For such other and further relief as the nature of this cause may require. eae Stephen D. Chamberlain Pro Se Litigant 12CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 23rd day of September, 2015, a copy of the foregoing Motion for Recusal was mailed, first class postage prepaid to M. Evelyn Spurgin, Esquire, 221 Duke of Gloucester Street, Annapolis MD, 21401, Attorney for Plaintiff. Senco Stephen D. Chamberlain 18