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for Writ of Prohibition, respectfully requesting that this Court prohibit the
Honorable John J. Hoy, Judge of the Fifteenth Judicial Circuit in and for Palm
The defendant not only fears she will not receive a fair trial, but also asserts she
HAS ALREADY BEEN treated unfairly in hearings by the judge. In support of her
Procedure, Rule 9.030(b)(3) and also Rule 9.100(e). Prohibition is the proper
remedy to test the validity of the denial of a motion for disqualification of a judge.
Rollins v. Baker, 683 So.2d 1138 (Fla. 5th DCA 1996); State v. Shaw, 643 So.2d
2. During the lengthy 3 years and 8 months, the plaintiffs have filed, heard,
and were denied (3) summary judgment hearings by (3) different judges.
3. The plaintiff was also denied an entry for default as to Mickey Metzgar
4. On September 10, 2010, this court sent notice in the form of an Order
Setting Non-Jury Trial. The calendar call was set for October 22, 2010.
5. This gave the plaintiff 42 days to set any pretrial pleadings, challenge the
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6. October 22, 2010, after both the plaintiff and defendant announced ready,
this case was finally set for trial for November 15, 2010 at 10:30 am by The
operative. The plaintiff informed the court of their intention to call one witness.
They were given (5) days to inform the defendant of their witness’s identity.
8. On Oct. 28, 2010, 6 days later, the plaintiff hired a co-counsel - Michael
unfairly strike the case from the trial docket. The defendant vigorously objected.
foreclosure division, allowed the new counsel to have the case struck from the trial
10. New counsel has since inundated this case with more witnesses,
that was already decided, denied for lack of service, and the case set for trial. At
this recent Dec 02, 2010 hearing, defendant Sharon Metzgar attempted to show the
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12. Judge Hoy asked the defendant if she had a license to practice law in
Florida and used no license as reason to not allow the defendant to speak at all.
13. Judge John J. Hoy has refused to allow Sharon Metzgar, a named
defendant to this foreclosure case, to speak at this recent default hearing. This
action, not allowing the defendant to speak, forms the basis for her fear of bias.
14. Judge Hoy does not afford equal time to the defendant. On December
2, 2010, Judge Hoy allowed the Plaintiff’s lawyer to speak freely, present an
apparent forged service affidavit. The Judge then silenced the defendant, Sharon
Metzgar, preventing her from exposing the forgery. This in effect, prevents the
15. Out of fear that the Judge was not and will not be fair for silencing her,
recuse the Honorable John J. Hoy that same day. (See Exhibit “B”)
16. On January 03, 2011, Judge Hoy denied the Motion to Recuse declaring
17. Because Judge Hoy has allowed the plaintiff’s attorney to speak freely
at a recent default hearing while silencing Ms. Metzgar - a named defendant - the
defendant in good faith fears she will not receive a fair trial.
18. Judge Hoy has since stricken the defendant Sharon Metzgar’s cross
claims of fraud against the plaintiffs without opinion or reason. (See Exhibit “D”)
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19. Judge Hoy has struck this 3-year 10-month old case from the trial
docket without cause, labeled the case as simple, silenced the defendant at a
requirements that it be in writing, “allege the facts and reasons relied on to show
the grounds for disqualification,” include sworn affidavits by the party and
attorney filing the motion, and be filed by the tenth day following discovery of the
information providing grounds for recusal. Fla. R. Jud. Admin. 2.160; Carrow v.
The Fla. Bar, 848 So. 2d 1283, 1285 (Fla. 2d DCA 2003). One of the grounds on
which a motion to recuse can be based is “that a party fears that he or she will not
21. On Dec. 2, 2010, the defendant was silenced by Judge Hoy during a
default hearing. The defendant filed a sworn motion to recuse, that same day,
describing in good faith facts and reasons she feared she would not receive a fair trial.
The critical consideration is not whether the lawyers would question the judge’s
impartiality, or whether this Court would question the judge’s impartiality, but
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impartiality. “A determination must be made as to whether the facts alleged would
place a reasonably prudent person in fear of not receiving a fair and impartial
therein also “would prompt a reasonably prudent person to fear that he could not
get a fair and impartial trial from the judge,” the motion is legally sufficient and
should be granted. Nunez v. Backman, 645 So. 2d 1063, 1064 (Fla. 4th DCA
1994). In such a circumstance, the facts alleged are to be taken as true and their
veracity should not be considered by the judge. State Farm Mut. Auto. Ins. Co.
24. Due process under the federal Constitution also requires that Judge Hoy
be disqualified from deciding this case as well. “A fair trial in a fair tribunal is a
basic requirement of due process.” In re Murchinson, 349 U.S. 133 (1955); see
also Aetna Life Insur. Co. v. Lavoie, 475 U.S. 813, 831 (1986) (impartial
U.S. 163, 178 (1994) (fair tribunal is “basic requirement” of due process); Bracy
v. Gramley, 520 U.S. 899 (1997) (Fair tribunal is “floor” established by Due
Process Clause) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975). Moreover,
a basic component of a fair tribunal is an impartial judge. See Weiss, 510 U.S. at
178. The constitutional requirement of impartiality prohibits not only actual bias,
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“every procedure which would offer a possible temptation to the average manas a
judge. . . . not to hold the balance nice, clear and true . . . denies . . . due process of
law.” Id. (quoting Tumey v. Ohio, 273 U.S. 510, 532) (1927).
CONCLUSION
For the foregoing reasons, Petitioners respectfully request that this Court
grant the writ of prohibition, disqualify The Honorable John J. Hoy from presiding
over the proceedings below, and direct that a new judge be assigned to this case.
Certificate of Service
I Declare that a true and correct copy of this Petition for Writ of
_______________________________
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Sharon Metzgar
301 Henthorne Drive
Lake Worth, FL 33461
Ph: (561) 281-9543