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SUPERIOR COURT DISTRICT COURT
KENNEBEC
,
ss, .· . ~ ~ ; _ ; _ f ; \ ' E D MI FILED
Location
_________
Docket No. _A_P _14_ s_e -
n, l:.:;c.C SUPER10H COURT
Docket No.
_
_R_EG_R_o_Y
________
;_:ZG_:_:_Iq
SEP 22
A <q: 02
NOTICE OF
APPEAL
_:_·IN_A_T_UR_c_o_n_E
\:;f i_ri::
_ ; _ ~ L E L UH 8 E T 6
g ~ i n a l
~ t K i \ OF
COURTS
I, GINA TURCOTIE (name
of
party appealing), appeal from the judgment, order
or ruling entered in this proceeding on SEPTEMBER
18,2014
(date of order appealed from).
0
f
this is a civil appeal, the Statement of the Issues (reasons for appeal) are
(as-:fu.U@w-s)
(attached)
pursuant to M.R. App. P. 5 (b)(2)(A).
SEE ATIACHED STATEMENT OF ISSUES
ON
APPEAL
D This case arises from the Maine Tort Claims Act requiring the clerk to send a copy of this
Notice
of
Appeal to the Office
of
the Attorney General.
D
f
this is a criminal appeal, check one
of
the following:
D
The defendant is presently confined
a t
0
The defendant is not in custody. The defendant s address is
CHECK APPLICABLE
BOX:
D
The Transcript Order form is attached.
Ill
No transcript will
be
ordered.
D
No electronic or other recording of the proceedings can be prepared for this civil case.
Therefore, a statement in lieu of transcript will be ? ' p ~ d pursuant to M.R.App .P. 5 (d).
Date:
SEPTEMBER 22,
2014
~ f < 4 ~ C 4 2 { ; { 1 :
Signature
of
Appellant or Appellant s Attorney
Address of Appellant or Attorney:
GINA
TURCOTIE
GINA
TURCOTIE
32 COURT
STREET
APT 1
Printed name of Appellant or Appellant s Attorney
· AUGUSTA
MAINE
If attorney, bar number:
_N_IA________
THIS
NOTICE OF APPEAL MUST BE FILED
IN
THE COURT THAT ISSUED THE
ORDER APPEALED FROM.
IT WILL NOT BE ACCEPTED OR DOCKETED UNLESS
(1) IN
A CIVIL
CASE.
IT
IS
ACCOMPANIED
BY
THE REQUIRED FILING FEE OR A
MOTION
TO
WAIVE THE
FILING
FEE,
AND
2) IF THE APPELLANT IS
REPRESENTED, IT CONTAINS THE
BAR
NUMBER OF APPELLANT S ATTORNEY.
NOTICE: If this
is
an appeal from
a civil case
or
a
criminal
case involving
an adult
defendant,
this notice must be filed within 21 days of the entry of the judgment
in
the docket.
f
this is
an appeal from
a case involving
the extradition of
a fugitive
to another
state,
this
notice must
be
filed
within
7
days of
the
entry of
the
judgment
in the docket.
Warning: Small Claims, Forcible Entry Detainer and Juvenile
matters have differing
time
limits
for
filing a Notice of Appeal.
f this
i,s
an
appeal from a
Small
Claims, Forcible
Entry and
Detainer or Juvenile matter,
another
form
must be used
which
is available
from
the clerk.
CV/CR 162, Rev. 08/09
Page 1 ofl
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DEFENDANT’S STATEMENT of ISSUES
on APPEAL to the LAW COURT
STATE OF MAINE
SUPERIOR COURT DISTRICT COURT
KENNEBEC, ss LOCATION: AUGUSTA
DOCKET: AP-14-56 DOCKET: SA-14-453
GREG ROY *
PLAINTIFF *
v *
GINA TURCOTTE *
DEFENDANT *
Defendant, GINA TURCOTTE, attaches Defendant’s Statement of Issues on
Appeal to the Law Court to her Notice of Appeal dated September 22, 2014. This statement of issues is for initial guidance in developing the record and does
not preclude Defendant from raising other properly preserved issues on appeal.
The following are questions of the issues the Defendant intends to present on
appeal pursuant to MRAppP 5(b)(2)(A).
1.
Do tenancies-at-will violate Constitution of the State of Maine Article 1, Section
1: “acquiring, possessing and protecting property” and Sec. 11 “law impairing the
obligation of contracts” ?
2.
Do tenants have a right to demand a “tenancy-for-a-term” of 6 months or longer?
3.
Do tenancies-at-will constitute unconscionable contracts for landlords’ benefit?
4.
Do tenants have a right to trial by jury de novo in Superior Court to determine
genuine issues of material fact regarding fraudulent rental leases?
5.
Do District Court judges have authority to preside over civil claims of fraud when
alleged during forcible entry and detainer actions?
6.
Does 14 MRSA §6008 violate tenants’ rights under the Constitution of the State
of Maine Article 1, Section 6-A: “nor be denied the equal protection of the laws” ?
7.
Do parties have a right to subpoena pre-trial discovery of admissible evidence
prior to District Court forcible entry and detainer trials?
8.
Do parties have a right to thoroughly examine any admissible evidence intended
to be entered into the record by the other party?
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9. Do Maine Rules of Civil Procedure Rule 80D violate Constitution of the State of
9
Maine Article 1 Section 6-A: no person sh ll be
deprived
of life, liberty or
property
without due
process
of law)),
nor
be denied the equ l
protection
of
the
laws , inter alia?
10 . Do District
and
Superior Court
judges
and justices have lawful authority
to
decide
the constitutionality
of
state
laws
statutes
codes
rules
and
procedures?
DATED: September 22 2014
GINA TURCOTTE
32 COURT STREET APT 1
AUGUSTA MAINE
CERTIFIC TE
O
SERVICE
GINA TURCOTTE certifies that a copy of
the
foregoing
document
has been served
by
first class postal
on this day upon GREGORY ROY at 389 Costello
Road
Gardiner
Maine.
7
7
DATED: September 22 2014
GINA TURCOTTE
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STATE OF MAINE
_G_R_E_G_R_O_Y cPlaintiff
v.
D I S T R I C T ~ T 1 . _
Location k ~ 1
Gil
Docket No. -
4 q5
NOTICE OF APPEAL
and
AFFIDAVIT
Forcible Entry and Detainer
14 M.R.S. § 6008
G=- - -1
= A ~ T = U , _ , _ R ' C - - ' O ~ T _ , _ T - ' E = - - - - - - - · D e f e n d a n t
1.
I, GINA TURCOTTE
this proceeding dated AUGUST
20, 2014
, appeal from the judgment, order or u l i ~ g entered in
2.
Check all boxes that apply:
~ I appeal to the Superior Cour t on the following questions of law:
SEE ATTACHED ADDITIONAL PAGES
attach additional pages as needed)
I appeal to the Superior Court for a jury trial de novo.
The specific facts that show that there is a genuine issue regarding a right to trial
by
jury are:
SEE ATTACHED
ADDITIONAL PAGES
,-- attach additional pages as needed)
IF YOU ARE THE DEFENDANT, YOU
MUST
PAY YOUR
CURRENT
MONTH S RENT
OR THE
RENT ARREARAGE,
WHICHEVER
IS LESS, BEFORE FILING THIS APPEAL. 14 M.R.S. § 6008(2)
3. Check the box
that
applies:
K I have paid to the Pla inti ff any unpaid portion of the current month s rent or the rent arrearage; or
0
I have paid the District Court any unpaid portion
of
the current month s rent or rent arrearage, because
there is a dispute about the rent; or
0
Not applicable, I am the Plaintiff.
4.
Check the box
that
applies:
TRANSCRIPT
HAS BEEN
PREVIOUSLY ORDERED.
0
The Transcript Order form is attached.
0
No transcript will be ordered.
0 No electronic or other recording of the proceedings can be prepared for this case. Therefore, a statement
in lieu oftraru;cript will be prepared pursuant to M.R. Civ.
P.
76F(c) . J2 -_
Date: SEPT 22 2014 Signature: ~ ~
Printe<;l nan::e:
GINA TURCOTTE
Address: 32 COURT ST APT 1
AUGUSTA MAINE
Personally appeared the above named _IN_A_T_U_R_c_o_TT_E
and signed
and
made oath to the truth of the statements in the above affidavit, and att
before me.
Date:
SEPT 22 2014
otary
Public/Atto?
at Law /
h/ -c : 2 ~ 5 ~
THIS MUST BE FILED IN
THE
COURT WHERE THE ORDER WAS ISSUED. YOU MUST PAY
THE FILING
FEE
OR FILE AN APPLICATION
TO
PROCEED
WITHOUT
PAYMENT
OF
FEES
AT THE SAME TIME YOU FILE THIS NOTICE OF APPEAL.
NOTICE: This notice
must
be filed within 30 days
of
the
entry of judgment in the
docket
or
before the
issuance of the writ of possession, whichever occurs first.
CV-206, Rev. 04/14 Page 1
of
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NOTICE OF APPEAL AND AFFIDAVIT ADDITIONAL PAGES Page 1 of 3
NOTICE OF APPEAL AND AFFIDAVITFORCIBLE ENTRY AND DETAINER
ADDITIONAL PAGES
STATE OF MAINE
SUPERIOR COURT DISTRICT COURT
KENNEBEC, ss LOCATION: AUGUSTA
DOCKET: AP-14-56 DOCKET: SA-14-453
GREG ROY *
PLAINTIFF *
v *
GINA TURCOTTE *
DEFENDANT *
1.
I, GINA TURCOTTE, appeal from the Forcible Entry and Detainer judgment entered
in this proceeding dated AUGUST 20, 2014 in District Court on both questions of law and fact to be determined by a jury as guaranteed by Constitution of the
State of Maine Article 1, Section 4 which states, “the jury, after receiving the
direction of the court, shall have a right to determine, at their discretion, the law and
the fact” .
2.
First, in order to establish all relevant true facts for future appeals of constitutional
law , I appeal to the Superior Court for a trial by jury de novo. The specific facts that
show there are genuine issues of material fact to which I have a right to trial by jury
de novo are listed below and incorporated from Defendant’s attached Affidavit of
Prejudice and shall be considered part of this notice as if fully set forth herein:
a.
Landlord breached the rental contract and violated his ongoing common law
legal duty to disclose all elements of a rental contract that would impair or alter
either party’s performance, use or enjoyment of the property;
b.
Landlord has failed to perform his legal duty under the federal Fair Housing
Act, 42 U.S.C. §§3601 et seq. (1999) to continuously offer and provide
reasonable accommodations for Defendant’s known and documented special
medical housing needs as a disabled homeless woman of which Landlord was
entirely informed prior to signing the rental contract;
c.
Landlord knowingly and intentionally discriminated against tenant because of
her homelessness and medical disability status by recklessly, knowingly and
maliciously omitting pertinent material facts from the unconstitutional and
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NOTICE OF APPEAL AND AFFIDAVIT ADDITIONAL PAGES Page 2 of 3
unconscionable ‘at will’ rental contract which was offered with the intent to
defraud tenant and which in fact directly impacted tenant’s decision to enter
the contract and legal use and enjoyment of the property,
d.
Landlord intentionally and repeatedly retaliated by maliciously breaching
Clause #9 of the rental contract with daily loud construction work,
e.
Landlord intentionally retaliated by having tenant’s guest’s automobile towed
on August 13, 2014 from the tenant’s assigned private parking space;
f.
Landlord knowingly locked tenant’s medical therapy device (cat) and other
personal property in the basement on August 13, 2014 without permission or
authority and without giving tenant any access with intent to deprive tenant of
her personal property provoking immediate police intervention;
g.
Landlord retaliated against Defendant for being associated with a tenants
association, namely MAINE TENANTS JUSTICE LEAGUE, by bringing this frivolous action under 30-day notice to quit without citing any rental arrearages
under 14 MRSA §6002 effectually barring most of tenant’s legal defenses,
possessory rights and remedies,
h. Landlord constructively evicted tenant by breaching the covenant of quiet
enjoyment during tenant’s weekly religious worship violating her freedom of
religion, speech and assembly,
i.
Landlord commenced a retaliatory eviction with full awareness that tenant’s
medical disability and special housing needs make finding suitable housing
extremely difficult , which include:
i.
easy walking to local essential community services,
ii.
provisions for indoor/outdoor emotional therapeutic animals (cats),
iii.
safe and uninterrupted provisions for uninhibited possession, use and
cultivation of legally recommended and documented medical cannabis
products, devices and equipment.
There is an ominously high probability Defendant will be physically homeless
and living on the street during winter months if a writ of possession is issued.
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I AFFIRM THERE IS NO UNPAID PORTION OF
ANY
PAST, CURRENT, OR FUTURE RENT
· PURSUANT TO
14
MRSA 6008(2) BECAUSE ALL RENT
HAS
BEEN DISCHARGED
UNDER 11 MRSA §2-1407, ... a lessee, on notifying the
lessor
ofthe lessee s intention to
do so, may
deduct
all or any
part of
the
damages
resulting from any default
under
the
lease
contract from
any
part
of
the
rent
still
due under
the
same
lease
contract.
[See Sept. 3 2014 Exhibits A-D attached to Defendant s Affidavit in Support
of
Motion for
Stay
of
Writ
of
Possession for Full Time ofAppeal]
3. I have
unrebutted credit
for work
performed
for
Plaintiff of
4727
payable
in
rent;
4. I
assert no
future
rent
is accruing
by virtue of my invoking 49 Am Jur 2d Pt
2
Landlord and Tenant, §35 and §36, 11 MRSA §2-1407
and
serving a proper Notice
of
Fraud and
Nonpayment
of
Future
Rent
on
Plaintiff
on August
4
and
8,
2014
as
evidenced
within
this record.
5. 14 MRSA §6008(2) requiring payment of rent is inapplicable to this case.
6. The transc ript was ordered on August 21st
but not
yet
delivered
in written form.
DATED:
September
22, 2014
GINA TURCOTTE
32 COURT STREET APT 1 AUGUSTA
~ e r s o n l l y appeared
the
above named GINA TURC<?TTE
on this
day
who signed and
made oath
before me
to
the truth of
the
statements
in
the foregoing attached pages.
DATED:
September
22, 2014
~ ; Y J ~
clerk /Notary
Public/Attorney at Law
£...t? .P.
< l · t ? S : O J I ~
NOTICE OF APPEAL AND AFFIDAVIT ADDITIONAL
PAGES
Page
3
of
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STATE OF MAINE
SUPERIOR COURT
· KENNBEC, ss
DOCKETNO:
GREG ROY
PLAINTIFF
v
GINA TURCOTTE
DEFENDANT
DEFENDANT S
AFFIDAVIT
IN COMPLIANCE WITH
14 MRSA §6008(6)
NOW COMES DEFENDANT, GINA TURCOTTE, upon her own knowledge,
information and
belief,
and so
far as
upon her information and
belief,
she believes this
information
to
be
true
and
correct,
submits this
Affidavit
In
Compliance with
14
MRSA
§6008 6) affirming
that
she
has
complied with
the requirements of
subsection 2
regarding
the
payment of rent.
DATED: September 22,
2014
GINA TURCOTTE
KENNEBEC, SS.
Personally appeared on this day the above-named
GINA TURCOTTE and
made
oath that
she
has read the foregoing,
knows the
contents thereof and that
the same are
.
true
to the
best of
her knowledge, information
and
belief.
~ / ; J ~
Notary Public ~ 7 0
·
?f--0 5-;;zo;:;)-/
DATED: September 22, 2014
Before me:
CERTIFIC TE OF SERVICE
GINA TURCOTTE certifies
that
a copy of
the
foregoing document has been served
by
first class postal
mail on
this day upon
GREGORY ROY
at 389
Costello Road
._k k c£ttU
Gardiner Maine.
DATED:
September
22,
2014
GINA TURCOTTE
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DEFENDANT’S WRITTEN OBJECTIONS
with INCORPORATED MEMORANDUM OF LAW
STATE OF MAINE
SUPERIOR COURT DISTRICT COURT
KENNEBEC, ss LOCATION: AUGUSTA
DOCKET: AP-14-56 DOCKET: SA-14-453
GREG ROY *
PLAINTIFF *
v *
GINA TURCOTTE *
DEFENDANT *
Defendant, GINA TURCOTTE, submits Defendant’s Written Objections with
Incorporated Memorandum of Law in support of Defendant’s formal objections at trial. This list of written objections supplements Defendant’s objections raised during
trial with supporting laws and rules which were not immediately known at trial.
1. Object to Judge Requiring Legal Precision from Unrepresented Defendant
a.
When Judge Stanfill and Justice Mullen both indicated Defendant will be
held to same high standards as licensed BAR attorneys they discriminated
against Defendant for not being an attorney violating Section 3 of Maine
constitution “no subordination nor preference of any one sect or denomination
to another shall ever be established by law” and subsequently violated my
right to equal protection under Section 6-A.
b.
Defendant’s paperwork is legally correct, clear, precise and on point citing
relevant facts, evidence, law and procedure but the court continues to deny
Defendant’s many valid constitutional claims.
2.
Object to Jurisdiction: 28 USC §455(b)(4) “[Judge Valerie Stanfill] knows that
she, individually or as a fiduciary, … has a financial interest in the subject matter
in controversy or in a party to the proceeding, or any other interest that could be
substantially affected by the outcome of the proceeding;”
a.
Judge Valerie Stanfill was properly disqualified and recused for having a
deep personal bias and prejudice by virtue of her paid participation in
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administrative court activities and access to an ‘extrajudicial source’ of
information regarding future physical location of the court adjacent to the
subject property which causes a significant bias against Defendant.
3. Object to Failure to Receive Discovery of Admissible Evidence: MRCivP 26
a.
Defendant was not provided any opportunity to receive copies of nor
thoroughly examine the admissible evidence for fraud, mistakes, or
misrepresentations of fact.
4. Object to Exhibit 1, Rental Lease: MREvid 403. Exclusion Of Relevant
Evidence On Grounds Of Prejudice, Confusion, Or Waste Of Time
a.
Exhibit 1 has erroneous information which was introduced by Plaintiff to
prejudice, mislead or confuse the court
5. Object to Exhibit 2, Notice to Quit: RULE 403. Exclusion Of Relevant Evidence
On Grounds Of Prejudice, Confusion, Or Waste Of Time
a. Exhibit 2 has erroneous information which was introduced by Plaintiff to
prejudice, mislead or confuse the court.
6. Object to Prejudice Shown by Judge Against Unrepresented Defendant
Defendant entered proper affirmative defenses, objections and motions during
trial which Judge Stanfill denied because Defendant did not have direct memory
of pertinent caselaw, rules of evidence or rules of civil procedure.
Judge Stanfill’s prejudice against Defendant due to her of lack of legal knowledge
is a violation of Constitution of the State of Maine, Article 1, Section 6-A: “nor be
denied the equal protection of the laws”, “nor be denied the enjoyment of that
person’s civil rights or be discriminated against in the exercise thereof.”
a.
“The allegations of the complaint, especially a pro se complaint, must be read
in a liberal fashion” , Haines v. Kerner , 404 U.S. 519, 92 S.Ct. 594, 30
L.Ed.2d 652 (1972); Cruz v. Beto , 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d
263 (1972),
b.
“and they must be accepted as true in testing their sufficiency” , Haines v.
Kerner , supra, Cruz v. Beto , supra.
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c.
A
prisoner s
prose
complaint (however inartfully
pleaded must
be
held
to
less stringent standards than
formal pleadings
drafted by lawyers and can
only be dismissed for failure to state a claim
if
it appears (beyond
doubt
that
the plaintiff
can prove
no
set of acts
in
support of his
claim which
would
entitle him to relief Estelle v. Gamble,
429
U.S. 97,
97 S.Ct.
285, 50 L.Ed.2d
251
1976).
See
Williams v. Rhoden,
629 F.2d
1099
5th
Cir.
1980);
Jackson
v Reese, 608
F.2d
159 5th Cir.
1979);
Slavin
v
Curry,
574 F.2d 1256 5th
Cir.
1978);
Cruz
v
Skelton, 543 F.2d
86
5th Cir.
1976), cert.
denied, 433
U.S. 911,97 S.Ct. 2980,53 L.Ed.2d 1096 1977). Covington v. Cole, 528
F.2d
1365 5th Cir.
1976);
See also, Finley
v
Staton, 542
F.2d
250,
5th
Cir.
1976);
Williams
v
McCall, 531 F.2d 1247 5th Cir.
1976);
Taylor
v
Gibson,
529
F.2d
709 5th Cir.
1976);
Go(fv. Jones,
500 F.
2d
395 5th Cir.
1974);
Reed
v
Jones,
483
F .
2d 77
5th
Cir.
1973);
and
Madison
v
Purdy,
410
F.2d
99
5th
Cir.
1969).
DATED:
September 22, 2014
.GINA
TURCOTTE
32
COURT
STREET,
APT 1
AUGUSTA, MAINE
CERTIFIC TE OF
SERVI E
GINA TURCOTTE certifies that a copy
of
the
foregoing
document has
been
served
.by first class postal mail on
this
day upon GREGORY ROY
at
389 Costello Road
Gardiner Maine.
DATED: September 22, 2014
GINA TURCOTTE
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DEFENDANT'S MOTION FOR RECUSAL with INCORPORATED MEMO OF LAW
DEFENDANT’S MOTION FOR RECUSAL
with INCORPORATED MEMORANDUM OF LAW
STATE OF MAINE
SUPERIOR COURT DISTRICT COURT
KENNEBEC, ss LOCATION: AUGUSTA
DOCKET: AP-14-56 DOCKET: SA-14-453
GREG ROY *PLAINTIFF *
v *
GINA TURCOTTE *
DEFENDANT *
Defendant, GINA TURCOTTE, respectfully submits Defendant’s Motion for
Recusal with Incorporated Memorandum of Law and incorporates as if fully setforth herein Defendant’s Affidavit of Bias and Prejudice and Certificate of Counsel
of Record in good faith pursuant to 28 USC §144 and 28 USC §455 and all prior
affidavits, addendums, motions, memorandums of law, evidence, exhibits and any
other facts and paperwork of the record relevant to this recusal.
Defendant acknowledges this is truly a once-in-a-lifetime, highly unusual and
unique situation which provokes many valid constitutional questions requiring
legal precision and great judicial sensitivity.
The merits and outcome of this action are further complicated by Defendant’s
legal status as a member of a class of disabled individuals protected by Americans
with Disabilities Act and other appropriate laws, her documented special medical
housing needs and her proper requests for reasonable accommodations from both
Plaintiff and this court on September 12.
Defendant respectfully asserts all Maine judges and justices have deep
personal bias and prejudice in favor of Plaintiff obtaining a writ of possession in
this case against Defendant and all other tenants at 32 Court Street, Augusta, for
the reasons stated in Defendant’s Affidavit of Bias and Prejudice and other papers.
Defendant asserts that personal bias and prejudice also exists among judges
outside the county of Kennebec because Maine courts routinely rotate judges
through the state’s various courts, at both the district and superior court levels, to
relieve the burden of judges’ vacations, continuing education requirements, sudden
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DEFENDANT'S MOTION FOR RECUSAL with INCORPORATED MEMO OF LAW
illnesses, family duties, professional obligations, and training and education of new
judges creating a very high likelihood that every judge within Maine may at some
time personally preside over a case in the new Augusta courthouse.
The test to be applied in evaluating recusal and disqualification of judges was
clearly stated many years ago in Berger v United States (1921) 255 U.S. 22:
Does the Affidavit of Prejudice give fair support to the charge of a bent of
mind that may prevent or impede impartiality of judgment (225 U.S. at 33-34)?
In Bell v Chandler (10th Circuit, 1978) 569 F.2d 559, the Court observed that
28 USC §144 requires a judge who is the subject of a motion for recusal must cease
to act in the case after determining the legal sufficiency of the motion. The Court
pointed out that no direct relationship between the judge and the party or the caseis required under §144 in order to show bias. (569 F.2d at 569).
28 USC §144 states: Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that the judge before whom the
matter is pending has a personal bias or prejudice either against him or in favor of
any adverse party, such judge shall proceed no further therein, but another judge
shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or
prejudice exists, and shall be filed not less than ten days before the beginning of the
term at which the proceeding is to be heard, or good cause shall be shown for failure
to file it within such time. A party may file only one such affidavit in any case. It
shall be accompanied by a certificate of counsel of record stating that it is made in
good faith
28 USC §455(a) requires Any justice, judge, magistrate, or referee in
bankruptcy of the United States shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned.
28 USC §455(b)(1) requires “He shall also disqualify himself in the following
circumstances: where he has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the proceeding”
28 USC §455(b)(4) requires recusal if “He knows that he, individually or as a
fiduciary, or his spouse or minor child residing in his household, has a financial
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DEFENDANT'S MOTION FOR RECUSAL with INCORPORATED MEMO OF LAW
interest in the subject matter in controversy or in a party to the proceeding, or any
other interest that could be substantially affected by the outcome of the proceeding”
In United States v Antar , (3rd Circuit, 1995) 53 F.3d 568, the Court pointed
out that the relevant consideration requires that, if a "reasonable man, were he to
know all the circumstances, would harbor doubts about the judge's impartiality "
under the applicable standard, then the judge must recuse. In re Larson, 43 F.3d410, 415 (8th Cir.1994) (quoting Potashnick v. Port City Constr. Co., 609 F.2d 1101,
1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980)).
That Court also explained, “But in determining whether a judge had the duty
to disqualify him or herself, our focus must be on the reaction of the reasonable
observer. If there is an appearance of partiality, that ends the matter .” Haines v.
Liggett Group Inc., 975 F.2d 81, 98 (3d Cir.1992); Lewis v. Curtis , 671 F.2d 779,
789 (3d Cir.) ("Impartiality and the appearance of impartiality in a judicial officerare the sine qua non of the American legal system ."), cert. denied , 459 U.S. 880,
103 S.Ct. 176, 74 L.Ed.2d 144 (1982)”.
The Court also pointed out that the judge does not have to be subjectively
biased or prejudiced, so long as he appears to be so.
The Court held in Webbe v. McGhie Land Title Co., 549 F.2d 1358, 1361 (10th
Cir. 1977), that the "appearance of impartiality is virtually as important as the fact of
impartiality ."
Judge Stanfill’s and Justice Mullen’s conduct as described in the attached
documents and other facts as preserved in the record, combined with public
information that the Maine Judicial Branch, its judges and court employees in
Augusta will occupy a parking lot on Court Street which is planned to be built on
the land of the subject property demonstrating to a reasonable person that there is
grave doubt as to the impartiality of the judges and court employees in this case.
There can be no doubt that the judges and its employees are prejudiced in
this instant case against Defendant because if Defendant was successful on her
appeal and be allowed to legally occupy 32 Court Street, her physical occupation at
the property will significantly delay or permanently modify the preplanned parking
lot specifically chosen by the Maine Judicial Branch to occupy the Perham/Court
Street block after forcibly purchasing the land and removing the inhabitants on the
property, including Defendant and the building’s other tenants.
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Defendant
renews her objection
to
any bench
trial
without a
jury of
her peers.
There can be no question that Defendant s
only
option
to receive
any kind of
fair, legal and constitutional
outcome is
through a tri l
y jury
de novo on questions
of l w nd
genuine
issues of m teri l
f ct
as
guaranteed
by the
Constitution
of
the
State
of
Maine, Article 1, Section 4 and Section 20 in Superior Court which she
twice
previously
demanded
in
her
first
and amended
Notices
of
Appeal.
DATED: September 22, 2014
~ ~ t u f f
GINA TURCOTTE
32 COURT
STREET, APT 1
AUGUSTA, MAINE
NOTICE OF MOTION
If you want to oppose
this motion,
you
must
file a
Memorandum in
Opposition in
accordance with MRCivP 7 c) with the Court Clerk s Office
within
twenty-one 21) days
. of the date of
the
filing of
this
Motion
unless another time is
provided by these rules or
set by
the court. f you fail to file a Memorandum in Opposition to this Motion within
twenty-one
21) days in accordance with the
rules, it
will be deemed a waiver of all
objections, and presumed that you do not
object
to the Motion and the Motion
may
be
granted
by
the
court
without a hearing
and
without further notice to
you.
CERTIFIC TE
O
SERVICE
GINA TURCOTTE
certifies
that
a copy of the foregoing document has
been
served by first
class postal mail on this
day
upon GREGORY
ROY
at
389 Costello
Road
Gardiner Maine.
DATED: September
22,
2014
GINA TURCOTTE
DEFENDANT S MOTION FOR RECUSAL
with
INCORPORATED MEMO OF L W
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DEFENDANT'S AFFIDAVIT OF PREJUDICE SA-14-453/AP-14-56
DEFENDANT’S AFFIDAVIT
of BIAS and PREJUDICE
STATE OF MAINE
SUPERIOR COURT DISTRICT COURT
KENNEBEC, ss LOCATION: AUGUSTA
DOCKET: AP-14-56 DOCKET: SA-14-453
GREG ROY *PLAINTIFF *
v *
GINA TURCOTTE *
DEFENDANT *
Defendant, GINA TURCOTTE, respectfully submits Defendant’s Affidavit of
Bias and Prejudice.Defendant swears under pains and penalties of perjury the statements made
herein are based upon her own personal knowledge, personal information and
belief which are based on her meticulous research of public government records
and newspaper archives as cited herein, and so far as upon her personal
information and belief, she believes this information to be true and correct.
Defendant acknowledges this is truly a once-in-a-lifetime, highly unusual and
unique situation which provokes many valid constitutional questions and which
requires precise legal attention with great judicial sensitivity.
The merits and outcome of this action are further complicated by Defendant’s
legal status as a member of a class of disabled individuals protected by Americans
with Disabilities Act and other appropriate laws, her documented special medical
housing needs and her proper requests for reasonable accommodations from both
Plaintiff and this court on September 12.
Defendant asserts that personal bias and prejudice also exists among judges
outside the county of Kennebec because Maine courts routinely rotate judges
through the state’s various courts, at both the district and superior court levels, to
relieve the burden of judges’ vacations, continuing education requirements, sudden
illnesses, family duties, professional obligations, and training and education of new
judges creating a very high likelihood that every judge within Maine may at some
time personally preside over a case in the new Augusta courthouse.
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DEFENDANT'S AFFIDAVIT OF PREJUDICE SA-14-453/AP-14-56
Defendant respectfully asserts all Maine judges and justices have deep
personal bias and prejudice in favor of Plaintiff obtaining a writ of possession
against Defendant and all other tenants at 32 Court Street, Augusta, for the
following reasons:
1.
The subject property is sitting on land targeted for a courthouse parkinglot.
2. On March 3, 2009, the Bangor Daily News published “Funding sought for
court projects” which states, “The favored concept for the Augusta
courthouse is to build an addition onto the back side of the existing county
courthouse, Glessner said…The project would involve the purchase of land
and closure of the street behind the courthouse, he said.”
3.
On July 9, 2012, the Kennebec Journal published “Courthouse expansionhas Tuesday hearing ” which states, “The consolidated courthouse was
proposed in October 2009 by Maine Supreme Judicial Court Chief Justice
Leigh Saufley.”
4. On March 19, 2014, the Kennebec Journal published “Justice: New
Augusta courthouse to boost downtown” which stated “A supreme court
justice … is helping direct the construction of the new court complex in the
city…” and “The city and county lobbied successfully to build the new
complex behind the existing court building.”
5. On June 22, 2014 Kennebec Journal published “Talks continue on
Kennebec courthouse parking area” stating,
a. “With purchase options in hand for three of the properties,
negotiations continue with Gregory Roy, a real estate agent in
Brunswick who owns a multifamily building on the corner of Perham
at 32 Court Street.”
b.
“The city of Augusta is leading those discussions, according to City
Manager William Bridgeo.”
c. “James T. Glessner, state court administrator for the Maine Judicial
Branch, said he appreciated the city’s efforts in the negotiations.”
d. “It’s certainly a benefit to the project.” [James Glessner] said.”
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DEFENDANT'S AFFIDAVIT OF PREJUDICE SA-14-453/AP-14-56
e. “…it was originally going to be…along Interstate 95 [but] the city [of
Augusta], the mayor [William Stokes], the county, particularly the
county, did not like that idea at all.”
f. “It’s the biggest construction project undertaken by the judicial
branch.”
6.
William Stokes was confirmed as a Superior Court justice on July 31,2014.
7. On July 27, 2014 the Bangor Daily News published an article, “$55 million
Capital Judicial Center to unite Augusta courts, judicial offices “ which
stated, “There will be…six courtrooms, nine chambers for judges including
two offices for supreme court justices…”
8. After no less than five years’ of planning, all Maine judges’ should
reasonably know they will be parking their personal automobiles on landof the subject property at 32 Court Street when presiding over all future
cases in Augusta, creating observable personal bias and prejudice:
a. Any knowledge would have reasonably resulted from administrative
court information regarding the location of future work-related
offices and parking spaces thereby constituting ‘extrajudicial’
information.
9. All judges in Maine have a personal bias in support of granting Plaintiff a
writ of possession for 32 Court Street because the preplanned courthouse
parking lot cannot be built until the residential structure is vacated and
removed.
10. After all tenants are evicted and physically removed from 32 Court Street,
the building will be razed, a parking lot will be built and judges will
personally benefit when they park their personal automobiles on the land
of the former subject property during their taxpayer-paid employment
activities inside the new courthouse as government agents.
11. Judge Stanfill and Justice Mullen have shown prejudice in favor of
Plaintiff despite Plaintiff’s continuous violation of laws, court rules and
procedures.
a. Judge Stanfill knowingly:
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DEFENDANT'S AFFIDAVIT OF PREJUDICE SA-14-453/AP-14-56
i. failed to provide proof of impartiality and jurisdiction after
being challenged,
1. Defendant observed a sign posted inside the District
Court Clerk’s office which reads:
a. NEW COURTHOUSE JANUARY 2015
2.
Judge Stanfill stated she has no knowledge of thelocation of the parking lot of her future place of
employment.
ii. ignored Defendant’s affirmative defenses of:
1. breach of contract,
2. breach of warranty of habitability,
3. malicious retaliation,
4.
violation of rules of civil procedure,5. violation of rules of evidence,
6. fraudulent inducement,
7. fraudulent concealment
iii. failed to provide findings of fact and conclusions of law in
support of her judgment for forcible entry and detainer on
8/20
iv. requiring Defendant to display the same legal precision
required by BAR licensed attorneys in violation of:
1. Art. 1, Sec. 6-A “equal protection of the laws” and
2. Art. 1, Sec. 3 “no subordination nor preference of any one
sect or denomination to another shall ever be established
by law” .
b. Justice Mullen knowingly:
i. failed to rebut Defendant’s claims of personal bias and
prejudice,
ii. failed to provide proof of impartiality and jurisdiction,
iii. ignored genuine issues of material fact within the record,
iv. dismissed first appeal for trial by jury de novo without cause,
v. failed to provide reasonable accommodations upon request,
vi. dismissed second appeal on questions of law without cause,
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DEFENDANT'S AFFIDAVIT OF PREJUDICE SA-14-453/AP-14-56
vii. failed to provide findings of fact and conclusions of law in
support of both of his dismissals of Defendant’s appeals,
viii. requiring Defendant to display the same legal precision
required by BAR licensed attorneys in violation of:
1. Art. 1, Sec. 6-A “equal protection of the laws” and
2.
Art. 1, Sec. 3 “no subordination nor preference of any onesect or denomination to another shall ever be established
by law” .
12. Any denial of Defendant’s demand for a trial by jury de novo is a clear
violation of Defendant’s rights as protected by the Constitution of the State
of Maine:
a. Article 1, Section 1: “enjoying and defending life and liberty” and
“acquiring, possessing and protecting property” b. Article 1, Section 3 “no subordination nor preference of any one sect or
denomination to another shall ever be established by law ”
c. Article 1, Section 4: “freely speak, write” and “the jury shall have a right
to determine, at their discretion, the law and the fact.”
d. Article 1, Section 6-A: “no person shall be deprived of life, liberty or
property without due process of law” and “nor be denied the equal
protection of the laws” and “nor be denied the enjoyment of that person’s
civil rights or be discriminated against in the exercise thereof.”
e. Article 1, Section 9: “nor cruel nor unusual punishment be inflicted”
f. Article 1, Section 11: “nor law impairing the obligation of contracts”
g. Article 1, Section 20: “in all controversies concerning property, the
parties shall have a right to a trial by jury”
h. Article 1, Section 24: “the enumeration of certain rights shall not impair
nor deny others retained by the people”
i.
Article 10, Section 6: “the Constitution…shall be the supreme law of the
State”
13. Judge Stanfill’s and Justice Mullen’s conduct as clearly described herein
demonstrates to a reasonable person that there is grave doubt as to their
impartiality.
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14. Defendant affirms that her only
option
to receive
any
kind of fair
legal
and
constitutional outcome is through a trial y
jury de
novo in Superior
Court
which
she
twice requested
in
her
first
and amended
Notices
of
Appeal.
15. Defendant renews her objection
to any bench
trial
without
a
jury.
16. Defendant renews her demand and exercises her rights under Constitution
of
the State
of
Maine
Article 1
Section
4
and
Section
20
for a
trial
y
jury
de
novo in Superior Court
where
the
jury sh ll h ve
a right to determine,
t
their discretion,
the l w
nd the fact.
DATED: September
22
2014
~ L L w w
GINA TURCOTTE
32 COURT STREET APT 1
AUGUSTA MAINE
KENNEBEC
SS.
Personally appeared on this
day
the above-named GINA TURCOTTE and
~ d e oath that she
has
read
the foregoing document knows
the contents
thereof
and
that
the same are true to the best of her knowledge information and belief.
DATED: September
22
2014
Before
me:
N<?tary Public
CERTIFIC TE
O
SERVICE
GINA TURCOTTE certifies that a copy of the
foregoing
document
has been
served by first class
postal
mail on this day
upon
GREGORY ROY at 389 Costello
Road Gardiner Maine.
DATED:
September 22
2014
GINA TURCOTTE
DEFENDANT S
AFFIDAVIT
OF PREJUDICE
SA-14-453 AP-14-56
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SUPERIOR COURT
KENNEBEC
ss
DOCKET NO: AP- 14-56
GREG
ROY
PLAINTIFF
v
GINA TURCOTTE
DEFENDANT
STATE OF MAINE
DISTRICT COURT
AUGUSTA
DOCKET
NO: SA-14-453
DEFENDANT S CERT IFICATE
OfCOUNSELofRECORD
Defendant, GINA TURCOTTE hereby certifies that Defendant s Motion for
Recusal
and her
Affidavit
of
Prejudice
are both
filed
in
good faith.
Defendant swears
that
all
facts
are true
and
correct.
28
USC
§
144
and
28
USC §455 requires
an
Affidavit
of Prejudice
((shall be
accompanied
by
a certificate
of counsel
of record st ting th t it is m de in good faith.
Defendant realizes this certificate is normally signed by a licensed attorney, but I
am my own counsel and I am providing this certificate to meet requirements.
Defendant hereby files this Certificate of Counsel of
Record as required.
Respectfully submitted, this 22nd day of Se2tember
2014.
ATED:
September
22, 2014
GINA TURCOTTE
32 COURT STREET APT 1 AUGUSTA ME
Gina Turcotte certifies that a copy
of
the
foregoing document
has beert
served by
first class postal mail
upon
Gregory Roy at 389 Costello Road Gardiner
Maine
on this
day .
DATED:
September
22, 2014
GIN TURCOTTE
DEFENDANT S
CERTIFICATE
OF COUNSEL OF RECORD
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