IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

GENERAL CIVIL DIVISION
NEIL J. GILLESPIE,
Plaintiff, CASE NO.: 05-CA-7205
vs.
BARKER, RODEMS & COOK, P.A., DIVISION: C
a Florida corporation; WILLIAM
RECEIVED
J. COOK,
MAY 20 2010
Defendants.

PLAINTIFF'S MOTION TO Fl
Plaintiffpro se, Neil J. Gillespie, moves to disqualify the Honorable James M.
Barton, II, as trial judge in this action pursuant to chapter 38 Florida Statutes, Rule 2.330,
Florida Rules of Judicial Administration, and the Rules of Judicial Conduct. Plaintiff fears
that he will not receive a fair trial because of specifically described prejudice or bias of the
judge. Among other things, last year the wife of Judge Barton received almost $2,000
through her court reporting business from the Defendants, and the law firm representing
Defendants, which are the same entity. The specific grounds in support of this motion are:
Disqualification Standard
I. Canon 3E(I) of the Florida Code of Judicial Conduct provides a judge shall
disqualify himself or herself in a proceeding in which the judge's impartiality might
reasonably be questioned. The Commentary to 3E(I) states that under this rule, a judge is
disqualified whenever the judge's impartiality might reasonably be questioned, regardless
of whether any of the specific rules in Section 3E(I) apply. The question whether
disqualification of a judge is required focuses on those matters from which a litigant may
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reasonably question a judge's impartiality rather than the judge's perception of his ability
to act fairly and impartially. A judge has a duty to disclose information that the litigants
or their counsel might consider pertinent to the issue of disqualification. A judge's
obligation to disclose relevant information is broader than the duty to disqualify. Stevens
v. Americana Healthcare Corp. of Naples, 919 So.2d 713, Fla. App. 2 Dist., 2006.
2. Recusal is appropriate where one of the parties or their counsel had dealings with
a relative of the court, or whenever a modicum of reason suggests that a judge's prejudice
may bar a party from having his or her day in court. The function of the trial court on
motion to recuse the trial judge is limited to a determination of the legal sufficiency of an
affidavit, without reference to its truth and veracity. McQueen v. Roye, 785 So.2d 512,
Fla. App. 3 Dist., 2000.
Disclosure under Rule 2.330(c)(4), Fla.R.Jud.Admin
3. Pursuant to Rule 2.330(c)(4), a motion to disqualify shall include the dates of all
previously granted motions to disqualify filed under this rule in the case and the dates of
the orders granting those motions. In this case two judges previously recused themselves.
There was one prior motion to disqualify Judge Barton.
The Honorable Richard A. Nielsen, Circuit Court Judge
4. Plaintiffs motion to disqualify Judge Nielsen was filed November 3, 2006. Judge
Nielsen denied the motion November 20, 2006 as legally insufficient because it was not
filed in a timely manner. Judge Nielsen recused himself two days later sua sponte stating
that it is in the best interest of all parties that this case be assigned to another division.
5. Misconduct by Defendants counsel Ryan Christopher Rodems is responsible for
the recusal of Judge Nielsen. On March 6, 2006 Mr. Rodems made a verified pleading that
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falsely named Judge Nielsen in an exact quote attributed to Plaintiff, putting the trial
judge into the controversy. The Tampa Police Department recently determined that the
sworn affidavit submitted by Mr. Rodems to the court about an exact quote attributed to
Plaintiff was not right and not accurate.
6. Initially Plaintiff had a good working relationship with Judge Nielsen and his
judicial assistant Myra Gomez. Plaintiff attended the first hearing telephonically
September 26, 2005 and prevailed on Defendants Motion to Dismiss and Strike. After
Rodems stunt Judge Nielsen did not manage the case lawfully, favored Defendants in
rulings, and responded to Plaintiff sarcastically from the bench.
The Honorable Claudia Rickert Isom, Circuit Court Judge
7. This lawsuit was reassigned to Judge Isom effective November 22, 2006. A notice
on Judge Isoms official judicial web page advised that the judge had a number of
relatives practicing law in the Tampa Bar area and If you feel there might be a conflict in
your case based on the above information, please raise the issue so it can be resolved prior
to me presiding over any matters concerning your case. One of the relatives listed was
husband Mr. A Woodson Woody Isom, Jr.
8. Plaintiff found a number of campaign contributions between Defendant Cook and
witness Jonathan Alpert to both Judge Isom and Woody Isom. This lawsuit is about a fee
dispute. The only signed fee contract is between Plaintiff and the law firm of Alpert,
Barker, Rodems, Ferrentino & Cook, P.A. Plaintiffs Motion To Disclose Conflict was
submitted December 15, 2006 and heard February 1, 2007. Judge Isom failed to disclose
that husband Woody Isom is a former law partner of Jonathan Alpert. Mr. Rodems
represented Defendants at the hearing and also failed to disclose the relationship. Plaintiff
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only recently learned (March 2010) of the relationship in the course of researching
accusations contained an offensive letter from Rodems to the Plaintiff.
9. Subsequently Judge Isom did not manage the case lawfully, ignored her own law
review on discovery matters, favored the Defendants in rulings, and was prejudiced
against the Plaintiff. A motion to disqualify Judge Isom was submitted February 13, 2007.
A Court Order Of Recusal And Directing Clerk To Reassign To New Division was
prepared and signed by Judge Isom February 13, 2007, and stated the following:
THIS CAUSE came before the court on the plaintiff's motion to disqualify judge.
Although the motion is procedurally sufficient, is it insufficient as a matter of law
in that it appears to have been filed in response to adverse rulings of the court. At
the same time, however, the plaintiff has filed a motion to voluntarily dismiss his
cause leaving pending a counterclaim filed by the defendants. In an abundance of
caution and in an effort to generate confidence in the integrity of the judicial
system in terms of the plaintiffs future court appearances, the court on the court's
own motion on the matter of disqualification has determined that reassignment is
appropriate in this cause. The court having reviewed the file and pleadings filed
therein, does hereby enter this order of recusal, it is therefore,
ORDERED and ADJUDGED the undersigned circuit judge hereby recuses
Division H, the division over which she currently presides, from all matters which
may arise in the future concerning the above-styled cause.
The Clerk of Court is directly to randomly reassign this matter by blind rotation
pursuant to the established administrative procedures and certify below the
division to which this case is reassigned.
DONE AND ORDERED February 13, 2007, in Tampa, Hillsborough County,
Florida. Hon. Claudia Rickert Isom, Circuit Judge
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The Honorable James M. Barton, II, Circuit Court Judge
10. This case was reassigned to Judge Barton February 14, 2007. Plaintiff retained
attorney Robert W. Bauer of Gainesville to represent him. Plaintiff could not find an
attorney in the Tampa Bay area to litigate against Barker, Rodems & Cook, PA because
of their bad reputation and the general professional courtesy not to sue another lawyer.
Judge Barton was pleased with Mr. Bauer, and stated so on the record:
THE COURT: It is a good thing for Mr. Gillespie that he has retained
counsel. The way in which Mr. Gillespie's side has been presented today
with - with a high degree of professionalism and confidence reflects the
wisdom of that decision. (Transcript, hearing July 3, 2007, p. 21, line 6)
11. Nonetheless, Judge Barton made disparaging comments on the record about the
Plaintiff, did not manage the case lawfully, and was prejudiced against the Plaintiff.
Judge Barton provided copious hearing time to Defendants to obtain sanctions for a
discovery error and a misplaced defense to a counterclaim. Judge Barton sanctioned
Plaintiff the extreme amount of $11,550 and allowed Defendants to garnish Plaintiffs
bank account and client trust fund with Mr. Bauer.
12. During hearings on October 30, 2007, and July 1, 2008, Judge Barton allowed
Mr. Rodems to misrepresent that there was a signed written fee agreement between
plaintiff Neil Gillespie and defendant Barker, Rodems & Cook, PA when none exists.
Judge Barton accepted Rodems false testimony as true and dismissed three of the four
counts of Plaintiffs original pro se complaint. This necessitated Plaintiffs Motion for
Rehearing submitted by Mr. Bauer July 16, 2008. The motion still remains unheard.
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13. Judge Barton issued an Order Adjudging Contempt against Plaintiff July 7, 2008
for allegedly failing to comply with the Final Judgment of March 27, 2008, failing to
complete the Fact Information Sheet under oath, failing to serve a copy on Defendants
and provide notice of service of the completed Fact Information Sheet with the clerk of
court. In fact Plaintiffs counsel Mr. Bauer failed to inform Plaintiff of this requirement.
Mr. Bauer notified Judge Barton of his error by letter July 24, 2008 as follows:
Dear Judge,
After speaking with my client, making a thorough review of our files and
computer records I must regretfully inform the court and opposing counsel that I
inadvertently made misrepresentations at our last hearing. In that hearing I stated
that my office had forwarded the Information Fact Sheet to Mr. Gillespie. I also
stated that my office had called him to tell him to fill it out. I now understand that
was not correct. Because of my assertions the Court found Mr. Gillespie to be in
contempt. I wish at this time set the record straight.
While I did truly believe that those things had happened at the time I advised the
court of such, I now know that I was in error in not having personally confirmed
such. I take full responsibility for the error and I wish to clarify this to insure that
the court realizes that Mr. Gillespie did not ignore the courts directive.
I apologize both to the court, opposing counsel and Mr. Gillespie for my error.
Sincerely,
Robert W. Bauer, Esq. (Exhibit 1)
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Even though Mr. Bauer admitted his error, Judge Barton failed to reverse the contempt
finding, and continues to retain jurisdiction on the contempt to impose additional
sanctions, as necessary, and to tax attorneys' fees and costs against Plaintiff.
14. Attorney Bauer complained about Mr. Rodems on the record: Mr. Rodems
has, you know, decided to take a full nuclear blast approach instead of us trying to work
this out in a professional manner. It is my mistake for sitting back and giving him the
opportunity to take this full blast attack. (transcript, August 14, 2008, emergency
hearing, the Honorable Marva Crenshaw, p. 16, line 24). Mr. Bauer moved to withdrawal
October 13, 2008. Judge Barton took no action and allowed the case to languish with no
activity for almost one year. Judge Barton failed to fulfill his case management duties
imposed by Rule 2.545, Fla.R.Jud.Admin. Plaintiff also notes that Mr. Rodems failed to
take any action during that one year time period, undercutting his claim that Defendants
are prejudiced by the length of this lawsuit.
15. One year after Mr. Bauer moved to withdrawal, Judge Barton released him from
the case upon Plaintiffs request October 1, 2009. Plaintiff moved to disqualify Judge
Barton October 5, 2009, because he feared that he will not receive a fair trial because of
specifically described prejudice or bias of the judge. Judge Barton denied Plaintiffs
motion for disqualification by order October 9, 2009 and stated:
THIS CAUSE coming before the Court on Plaintiffs Motion to Disqualify Judge
and the Court having considered the motion and being fully advised in the
premises, it is hereby ORDERED AND ADJUDED:
1. Plaintiff has filed a motion pursuant to Fla. R. Jud. Admin. 2.160 (now
renumbered 2.330). The instant motion is Plaintiffs third such motion in this case,
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with two predecessor judges having recused themselves on their own motion upon
being served Plaintiffs Motion to Disqualify.
2. The instant motion is legally insufficient and therefore DENIED.
DONE AND ORDERED this 9
th
day of October, 2009.
Count 1, Plaintiffs Motion to Disqualify Judge Barton
16. Plaintiffs Motion To Disclose Conflict was filed May 5, 2010 with a copy hand
delivered to Judge Barton by the bailiff during an unrelated hearing. The motion asked
Judge Barton to disclose his relationship with Ms. Chere J. Barton, President of Regency
Reporting Service, Inc. of Tampa, and Barton Limited of Annapolis, MD.
17. Judge Barton admitted in open court on the record that Ms. Chere J. Barton is his
wife, that Ms. Barton owned a court reporting business, although the Judge incorrectly
called the business Regency Court Reporting (p. 28, line 22; p. 46, line 1), not Regency
Reporting Service, Inc., and that Ms. Barton maintains a home office for the business.
Judge Barton said there is no relation to Barton Limited of Annapolis, MD or its
principals and relatives of the same last name.
18. Ms. Chere J. Barton and Regency Reporting Service, Inc. took Plaintiffs
deposition May 14, 2001 in the AMSCOT lawsuit which forms the basis of the instant
case. Defendant Barker, Rodems & Cook, PA, paid Ms. Bartons company $417.75 on
May 21, 2001 for the transcript, and $59.60 for a deposition fee on February 7, 2001.
19. Paragraph 10 of Plaintiffs Motion To Disclose Conflict states: If the Honorable
James M. Barton, II, is related to any of the persons or entities listed in paragraph 9,
Plaintiff requests an evidentiary hearing to determine the extent and nature of the
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relationship to determine if there is a conflict of interest. Plaintiff request that copies of
invoices and other business records be produced at the evidentiary hearing.
20. Judge Barton admitted that Ms. Chere J. Barton was his wife, and apparently
under her company name, was the court reporter when Mr. Gillespie's deposition was
taken (p. 28, line 18), but Judge Barton did not offer to have an evidentiary hearing to
determine the extent and nature of the relationship to determine if there was a conflict of
interest. Instead Judge Barton instructed Mr. Rodems as follows: THE COURT: Okay.
Then, if you can go back and do some research and see whether -- if your firm has ever
retained my wife or her firm, Regency Court Reporting (sic). (p. 28, line 20)
21. On Monday, May 10, 2010, Plaintiff received from Mr. Rodems a letter dated
May 6, 2010, copy of a cover letter to Judge Barton, Defendants Notice of Filing,
Affidavit of Ryan Christopher Rodems, and a proposed Order On Plaintiffs Motion To
Disclose Conflict. Rodems affidavit stated, paragraph 5, that he personally conducted a
review of the records of Barker, Rodems & Cook, P.A., which showed that since Barker,
Rodems & Cook, P.A. was formed, five payments were made by Barker, Rodems &
Cook, P.A. to Regency Reporting Service, Inc. Each of these five payments were for
copies of depositions and the dates and amounts of the payments are as follows:
a February 27, 2001, $59.60
b. June 11, 2001, $417.75
c. March 31, 2009, $433.20
d. March 31, 2009, $886.35
e. March 31,2009, $672.60
The above amounts total $2,469.50, of which almost $2,000 was from last year.
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22. Plaintiff fears that he will not receive a fair trial because of specifically described
prejudice or bias of the judge. The Defendants, and the law firm representing the
Defendants, paid almost $2,000 last year to the court reporting business owned by the
wife of Judge Barton. This amount is almost double that allowed for campaign
contributions by attorneys to a trial judge, negating a reference by Mr. Rodems at the
hearing about case law holding that an attorney's legal campaign contributions to a trial
judge are not a legally sufficient ground for disqualification. $2,000 would be an
unlawful campaign contribution under Florida law and grounds for disqualification.
23. In a letter to Plaintiff dated May 6, 2010, Mr. Rodems cited Aurigemma v. State,
964 So.2d 224 (Fla. 4
th
DCA 2007) and quoted this part: The motion to disqualify is
based on Aurigemma's allegation that his trial counsel has hired the trial judge's husband
multiple times as an expert witness for his clients in criminal cases. Aurigemma alleges
that the trial judge's husband has benefited [sic] financially from his relationship with
Aurigemmas trial attorney, whose performance will be evaluated by the judge at the
evidentiary hearing. This ongoing "business relationship" creates the requisite well-
founded fear to support the motion to disqualify. Based on the foregoing, we grant the
petition for writ of prohibition and direct the Chief Judge of the Fifteenth Judicial Circuit
to have this case reassigned to a successor judge. Plaintiff believes now that Judge
Barton is aware that Defendants and the law firm representing Defendants paid almost
$2,000 last year to the court reporting company owned by the his wife, this creates the
requisite well-founded fear to support the motion to disqualify. Furthermore, an
evidentiary hearing was not held. Plaintiff must rely upon Mr. Rodems affidavit. A prior
affidavit of Rodems about an exact quote attributed to Plaintiff was found not accurate
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after investigation by the Tampa Police Department. To more fully ascertain the truth of
this matter Plaintiff must conduct non-party discovery with Ms. Barton.
Count 2, Plaintiffs Motion to Disqualify Judge Barton
24. Judge Barton admitted that Ms. Chere J. Barton was his wife, and apparently
under her company name, was the court reporter when Mr. Gillespie's deposition was
taken (p. 28, line 18). Judge Barton also said Ms. Barton maintains a home office for the
business. Plaintiff believes the transcript prepared by Ms. Barton of his deposition May
14, 2001 is stored in the home office and available to Judge Barton to read at his leisure.
This would prejudice Plaintiff if Judge Barton read about matters and underlying facts in
the instant lawsuit outside the framework of the litigation process. This puts Plaintiff in
fear that he will not receive a fair trial. This is the exchange from the hearing:
(Transcript, May-05-10, page 27, line 5)
5 MR. GILLESPIE: So, that would mean that the
6 transcript, if she has kept a copy of it, is
7 available to you in your home.
8 THE COURT: Well, I also know that she doesn't
9 keep -- if you can imagine -- if she was the court
10 reporter in 2001. If you can imagine, if she kept
11 personal copies of depositions -- all of these
12 hearings and depositions that she has done, we
13 would have to be living in a fifty-room mansion,
25. The size of the transcript is 5 MB. An ordinary storage drive has one terabyte of
space. One terabyte equals 1,048,576 megabytes or enough space for 209,715 transcripts.
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Regency Reporting Service, Inc. was formed in 1997, 13 years ago. Even if 10 transcripts
a day were made every day of the year, that would only amount to 47,450 transcripts. So
all the transcripts could be stored in a small space on ordinary computer hardware. From
there any transcript could be printed in a matter of minutes. So the assertion by Judge
Barton that we would have to be living in a fifty-room mansion (p 27, line 13) to store
all the transcripts made by Ms. Barton is not factual or credible. Even without the above
calculations, an ordinary person knows that many years of data can be stored on a
computer. Judge Bartons wild assertion that we would have to be living in a fifty-room
mansion shows such exaggeration that creates the requisite well-founded fear to support
the motion to disqualify.
26. Plaintiff requested an evidentiary hearing. (Transcript, May 5, 2010, p. 27)
21 MR. GILLESPIE: And that is fine, Judge. And
22 this is why I think we need an evidentiary hearing
23 to find out where this transcript is and who has
24 seen it.
Judge Barton did not allow an evidentiary hearing, casting more doubt on the matter that
in turn creates the requisite well-founded fear to support the motion to disqualify, a fear
that Plaintiff will not receive a fair trial.
Count 3, Plaintiffs Motion to Disqualify Judge Barton
27. Plaintiffs Motion To Disclose Ex Parte Communication With JNC was filed May
5, 2010 and a courtesy copy handed to Judge Barton by the bailiff at the hearing. The
motion asked Judge Barton to disclose ex parte communication with Mr. S. Cary
Gaylord, an attorney and commissioner on the 13
th
Circuit Judicial Nominating
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Commission (JNC). As of today Judge Barton has not responded. The lack of response
creates the requisite well-founded fear to support the motion to disqualify, a fear that
Plaintiff will not receive a fair trial.
28. Defendants attorney Ryan Christopher Rodems has been a perpetual applicant for
every judicial opening in the 13
th
Circuit for the past two years. In an email dated March
15, 2010 Mr. Gaylord contacted Robert Wheeler, General Counsel
1
to the Governor. Mr.
Gaylord wrote I have personally spoken with Mr. Gillespie, with judges presiding over
various cases mentioned in his complaints and with other lawyers who have been involved
in litigation mentioned by Mr. Gillespie and involving Mr. Rodems. Mr. Gaylord stated
that he was convinced that all of Mr. Gillespie's complaints against Mr. Rodemsare
completely without merit. Therefore it is reasonable to conclude that Mr. Gaylord spoke
with Judge Barton and that Judge Barton has already reached a decision in this lawsuit
favoring the Defendants. Therefore Plaintiff fears that he will not receive a fair trial
because of specifically described prejudice or bias of the judge.
29. Plaintiff wrote and asked Mr. Gaylord if he spoke with Judge Barton presiding in
this lawsuit, and if so what was the substance of the conversation. Mr. Gaylord responded
by letter dated April 13, 2010 that I recall that there were judges I talked to but I can't
recall which ones and that he has no notes to refresh his memory.

1
On March 4, 2010 the Governors General Counsel Rob Wheeler announced that the
Governors Chief Inspector General will conduct an investigation into allegations of
misconduct against Mr. Rodems law partner, Chris A. Barker, a commissioner on the
13th Circuit JNC. For 2009 and 2010 Mr. Barker has been unable to attend to his duties
on the JNC because of a foreseeable conflict that he failed to disclose on his application.
This has left the 13th Circuit JNC with less than the required nine members.
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30. Canon 3(B)(7) of the Rules of Judicial Conduct, states a judge shall not initiate,
permit, or consider ex parte communications, or consider other communications made to
the judge outside the presence of the parties concerning a pending or impending
proceeding. Judge Barton failed to respond to Plaintiffs Motion To Disclose Ex Parte
Communication With JNC. Plaintiff takes this as a tacit admission of ex parte
communication between Judge Barton and Mr. Gaylord. Based on this conduct, Plaintiff
fears he will not receive a fair trial in this lawsuit and this fear supports disqualification.
31. In Coleman v. State, 866 So.2d 209, Fla. App. 4 Dist., 2004, the appellate court
held the judge should have recused himself due to ex parte communications with the
media. Coleman is similar to this case, and Judge Bartons discussion with Mr. Gaylord
certainly had far greater influence than the opinion of the media in Coleman.
Count 4, Plaintiffs Motion to Disqualify Judge Barton
32. Plaintiff filed a Motion For Dissolution Of Writ Of Garnishment April 28, 2010
and provide a copy to Judge Barton. Defendants obtained writs of garnishment from
Judge Barton against Plaintiffs bank accounts and client trust fund with attorney Bauer.
The garnishment was to collect $11,550 Judge Barton imposed as sanctions against
Plaintiff. The garnishment took $598.22 from Plaintiffs bank accounts, all of which is
exempt as Social Security disability income or other exempt money.
33. Plaintiffs Motion For Dissolution Of Writ Of Garnishment set forth that
Defendants failed to comply with the notice requirement under section 77.041(1)
Florida Statutes, and failed to provide the Notice to Defendant required by
section 77.041(2) Florida Statutes. Also, Plaintiff noted that Mr. Rodems made a
bad-faith garnishment of Plaintiffs bank account and social security disability
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benefits. With malice aforethought Mr. Rodems timed the garnishment to
coincide with Plaintiffs automatic deposit of Social Security disability benefits.
Rodems knows the benefits are exempt under 222.18 Florida Statutes. Rodems
knows Plaintiff receives Social Security disability benefits from his firms prior
representation of Plaintiff in a substantially related matter, from discovery in this
lawsuit, and from the Fact Information Sheet.
34. The court is holding $598.22 belonging to Plaintiff. Section 77.07(1) Florida
Statutes states that The court shall set down such motion for an immediate hearing.
Judge Barton failed to set the motion down for an immediate hearing. Because Judge
Barton failed to set the motion down for an immediate hearing, Plaintiff fears that he will
not receive a fair trial in the court where the suit is pending on account of the prejudice of
the judge of that court against the Plaintiff and/or in favor of the Defendants.
Count 5, Plaintiffs Motion to Disqualify Judge Barton
35. During a hearing January 26, 2010, Judge Barton noted communication problems
between the parties and offered to proceed on what he called the federal approach. This
is what Judge Barton said. (Transcript, January 26, 2010, page four, beginning line 10)
10 We do have several motions along with some
11 effort that I think needs to be extended to help
12 you all get through this case just to either figure
13 out a way for you all to communicate effectively or
14 in 20 years there was one occasion where I just
15 took what I have heard referred to as the federal
16 approach where people would just send in their
17 motions and say, Judge, I think I need 15 minutes
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18 or a half hour or an hour or whatever for this
19 motion and then we just set it. I mean so that you
20 all would not have to talk to each other except by
21 written motions and pleadings, that eliminates the
22 problem but as you can imagine, that is only a last
23 resort.
36. Plaintiff agreed to proceed under the federal approach and Judge Barton
explained how the process would work. (Transcript, January 26, 2010 p. 18, line 12)
12 Mr. GILLESPIE: I do. I would like to proceed
13 what you referred to as the federal procedure.
14 THE COURT: Okay. We will do that.
15 MR. GILLESPIE: That is what I would prefer.
16 THE COURT: Now, what that means since I'm
17 aware that both of you have other things going on
18 in your lives, that if somebody sends in a motion
19 and requests, doesn't matter what amount of time,
20 15 minutes or 15 days, I doubt if you will request
21 15 days but you get the idea, that I'm probably
22 going to be setting it in like the next week. I
23 mean it probably would be a couple of weeks out,
24 something like that which has kind of been normal
25 anyway, hasn't it?
(Continued, January 26, 2010 transcript, page 19, beginning line 1)
1 MR. RODEMS: In my experience, yes, sir.
2 THE COURT: So, I just -- you know I don't --
3 by doing this approach the disadvantage, obviously,
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4 is that your alls calendars won't be taken into
5 account or consulted. It is not going to be like,
6 here are three possible dates for your hearing.
7 Like what I'm going to do is I get a motion from
8 you and, Judge, I request a half hour for this
9 hearing, I'll just check my calendar, set the
10 hearing for your half hour or 15 minutes or maybe
11 it will -- you know somebody will request a half
12 hour and say, well, you know, this could take more
13 than that. So, I'm going to leave all my options
14 open. So, I just want you to understand what could
15 happen.
16 MR. RODEMS: Your Honor, may I, if I need to
17 request hearing time then suggest to you what is
18 currently on my calendar so that to the extent
19 possible --
20 THE COURT: And that is not a bad idea when
21 you send in a motion and the amount of time you
22 think you need and I will try to accommodate you
23 but I'm not saying that I can. It is obvious the
24 requesting party could say, and, Judge, I would
25 like this the week of March 1st, assuming that is a
(Continued, January 26, 2010 transcript, page 20, beginning line 1)
1 Monday. Well, I wouldn't have any input from the
2 other side. So, and that is a problem with, you
3 know, the other side request a hearing and I set
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4 it. I'm just going to count on you all to make an
5 adjustment. And, you know, I'm sure your calendar
6 varies from day to day.
7 Mr. Gillespie, what about your calendar? Are
8 there any days of the week that you are just not
9 available at all or any mornings or afternoons?
10 MR. GILLESPIE: Judge, the only request I
11 would make because I'm traveling from a hundred
12 miles away is that the hearings be scheduled later
13 in the day.
14 THE COURT: Afternoons, you mean?
15 MR. GILLESPIE: Yes, Judge.
16 THE COURT: Okay. We can do that. And,
17 again, the odds are I will give you, let's say,
18 rule of thumb, a couple of weeks or more lead time,
19 you know that I get something and I wouldn't set
20 it, the next week, it would be two weeks or further
21 out, something like that.
22 MR. RODEMS: And I have a federal court
23 practice as well, Your Honor and I'm accustomed to
24 when the judges call you over there you make
25 whatever arrangements you need to, to be there.
(Continued, January 26, 2010 transcript, page 21, beginning line 1)
1 So, that is fine. I will certainly be able to do
2 that in this case.
3 THE COURT: And the other thing each of you
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4 needs to take advantage of, if you so choose, is
5 there is another Rule of Judicial Administration
6 that allows appearance by telephone if folks so
7 request it. The only exception to that is if there
8 is going to be any testimony, you couldn't testify
9 in a hearing over the telephone unless the other
10 side agrees. So, if we have a fairly short hearing
11 and somebody wants to appear by telephone in
12 anything, like even today, that would have been
13 allowable.
37. Judge Bartons description of the federal approach on January 26, 2010 was
limited to the purpose of setting hearings, with a provision to appear by telephone.
Otherwise the hearings would be conducted under the Fla.R.Civ.P. Judge Bartons
description of the federal approach on May 5, 2010 was significantly different. Judge
Barton eliminated hearings conducted under the Fla.R.Civ.P. This is what Judge Barton
said: (Transcript, page 48, beginning line 15)
15 THE COURT: You see, under the federal
16 approach -- if you really want that -- I refer to
17 that and as shorthand -- the federal approach is to
18 rule on written motions without oral argument from
19 the parties. And if that is what you are wanting
20 me to do, I am more than happy to do that.
21 The second -- and that's if you wanted me to.
22 And I just want to make sure that you understood
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23 what I meant by the term, quote, the federal
24 approach, close quote. Because federal judges
25 grant hearings not as a matter of right, which,
(Continued, May 5, 2010 transcript, page 21, beginning line 1)
1 under Florida law, for the most part, if somebody
2 wants a hearing on motions -- again, there are a
3 few exceptions, of course, the Court has to afford
4 them one. Under the federal system, in the civil
5 courts, judges have discretion -- as I understand
6 it, it's total discretion on any and all motions as
7 to whether a hearing like this is granted or not.
38. Plaintiff noted the discrepancy between Judge Bartons description of the federal
approach described by him January 26, 2010, and Judge Bartons flip-flop May 5, 2010:
(Transcript, May 5, 2010, page 49, beginning line 8)
8 MR. GILLESPIE: Well, the way I understood the
9 description under the federal approach last time --
10 and we have a transcript that we can go back to --
11 was that the motions would be submitted to you, and
12 then, you would set time for the hearing. Now, you
13 are telling me something --
14 THE COURT: That is not the federal approach.
15 The federal approach is deciding whether they --
16 the Court thinks it needs a hearing or not, and it
Page - 21
17 would only set hearings on motions that it felt
18 would be beneficial to have a hearing on, as
19 opposed to entitlement to a have a hearing. But if
20 you think that is appropriate, I will be glad to do
21 that, Mr. Gillespie.
22 MR. RODEMS: Your Honor --
23 THE COURT: Mr. Gillespie, is that what you
24 want me to do?
25 MR. GILLESPIE: Well, that is a difficult --
(Continued, May 5, 2010 transcript, page 50, beginning line 1)
1 that is a different standard of what you said last
2 time. So, my ADA request in front of you now is
3 based upon what you said the last time. Now you
4 are saying something different. So, I would like
5 to think about that.
39. Judge Barton has offered two different descriptions for what he calls the federal
approach. This is confusing and disruptive. Because Judge Barton flip-flopped at the
May 5, 2010 hearing and reneged on a procedure agreed to January 26, 2010, Plaintiff
fears that he will not receive a fair trial in the court where the suit is pending on account
of the prejudice of the judge of that court against the Plaintiff.
40. The federal approach as described by Judge Barton May 5, 2010 is a clear
departure from the Fla.R.Civ.P and would fundamentally alter the nature of court
programs, services, or activities, and may impose an undue financial or administrative
Page - 22
burden on the courts. Plaintiff fears that he will not receive a fair trial because Judge
Barton proposed such an extreme and possibly unlawful process.
Count 6, Plaintiffs Motion to Disqualify Judge Barton
41. Plaintiff provided his ADA accommodation request (ADA Request), and ADA
Assessment and Report by Ms. Karin Huffer, MS, MFT, (ADA Report) to Mr. Gonzalo
B. Casares, ADA Coordinator for the 13
th
Judicial Circuit by hand delivery February 19,
2010. Plaintiff also provided Mr. Casares a completed and signed ADA Request for
Accommodations Form for the 13
th
Judicial Circuit. Courtesy copies of the documents
were provided to Judge Barton.
42. ADA is an administrative function. As such copies of the documents described in
paragraph 41 were not provided to Defendants, nor is this considered ex parte
communication. Ms. Huffer noted the following about the ADA Report:
This report is to be kept under ADA Administrative confidential management
except for use by the ADA Administrator revealing functional impairments and
needed accommodations communicated to the Trier of Fact to implement
administration of accommodations. This information is NOT to become part of
the adversarial process. Revealing any part of this report may result in a violation
of HIPAA and ADAAA Federal Law.
43. Mr. Casares notified Plaintiff by email April 14, 2010 (relevant portion) Your
request is not within our means to resolve and was referred to the Legal Department for
the appropriate course of action. In an email to Plaintiff May 4, 2010, Mr. Casares wrote
(relevant portion) The medical file was never within our departments means to help and
Page - 23
was handed over to Legal. Plaintiff assumes the medical file is the ADA Assessment
and Report by Ms. Karin Huffer, MS, MFT, (ADA Report).
44. The online Florida State Courts ADA Information updated Monday, August 24,
2009, describes Accommodations Provided by the Florida Courts (Exhibit 2) and states
the following (relevant portion): As required by the ADA, the determination of whether
an individual has a disability and the accommodation appropriate to a particular situation
is an individualized inquiry and each decision is therefore made on a case-by-case basis.
45. The online Florida State Courts ADA Information updated Monday, August 24,
2009, describes Procedures for Requesting an ADA Accommodation (Exhibit 2) and
states the following (relevant portion): The judge, court ADA coordinator, or other court
representative, as appropriate to the circumstances, may engage in an interactive process
with the individual in order to determine the appropriate accommodation. After analysis,
the judge, court ADA coordinator, or other court representative, as appropriate to the
circumstances, will inform the individual whether the request will be granted.
46. Judge Barton either failed to determination whether Plaintiff has a disability as
required by the ADA, or failed to notify Plaintiff about the determination. Mr. Gonzales
said The medical file was never within our departments means to help and was handed
over to Legal so he was not able to make a determination. That left Judge Barton or his
counsel, David Rowland, to make a determination, and neither notified Plaintiff.
47. Judge Barton failed to engage in an interactive process with the Plaintiff in order
to determine the appropriate accommodation. Judge Barton failed to inform the Plaintiff
whether the request would be granted. Mr. Casares said Your request is not within our
means to resolve and was referred to the Legal Department for the appropriate course of
Page - 24
action. That only left Judge Barton and his counsel, David Rowland, to make a
determination, and neither notified Plaintiff as required by the ADA.
48. Because Judge Barton failed to determine whether Plaintiff has a disability, or
failed to notify Plaintiff as required by the ADA, Plaintiff fears that he will not receive a
fair trial in the court where the suit is pending on account of the prejudice of the judge of
that court against the Plaintiff.
49. Because Judge Barton failed to engage in an interactive process with the Plaintiff
in order to determine the appropriate accommodation, and failed to inform the Plaintiff
whether the request would be granted, Plaintiff fears that he will not receive a fair trial in
the court where the suit is pending on account of the prejudice of the judge of that court
against the Plaintiff.
50. Federal case law interpreting the ADA is applicable to claims arising under the
Florida Civil Rights Act (FCRA). Americans with Disabilities Act of 1990, 101 et seq.,
42 U.S.C.A. 12111 et seq.; West's F.S.A. 760.01 et seq. Moore v. Hillsborough
County Board of County Commissioners, 544 F.Supp.2d 1291. Because Judge Barton
violated Plaintiffs rights under the ADA, Judge Barton violated the Florida Civil Rights
Act (FCRA). Plaintiff fears that he will not receive a fair trial in the court where the suit
is pending on account of the prejudice of the judge of that court against the Plaintiff.
Count 7, Plaintiffs Motion to Disqualify Judge Barton
51. On May 5, 2010 Plaintiff arrived for the hearing set by Judge Barton. The Order
Scheduling Hearing (Exhibit 2) set the hearing for one hour, beginning a 3:00pm, and
listed 12 items. This is contrary to Plaintiffs ADA request.
Page - 25
52. Judge Barton sandbagged Plaintiff at the hearing with a new plan. This is what
Judge Barton said: (Transcript, May 5, 2010, page 4, line 12)
12 We do have an hour scheduled today, which may
13 or may not be sufficient to cover all of the
14 motions that we have. The Court's plan is to
15 proceed forward with the hearing, taking these
16 motions one at a time.
17 If we are finished by 4:00, fine; if we are
18 not, I have one motion scheduled at 4:00 o'clock in
19 my chambers in another case, which, if we haven't
20 taken a break before then, we will take a break and
21 then reconvene after that short hearing and finish
22 up.
53. Judge Barton further explained his plan later in the hearing: (Transcript, May 5,
2010, page 18, line 15)
15 THE COURT: Well, I am going to give you -- as
16 I have indicated, I am going to give you -- we can
17 be here until 7:00 or 8:00 o'clock tonight.
18 MR. GILLESPIE: Well, that is nice of you,
19 Judge, but I can't be here that long. I have
20 diabetes.
54. Judge Bartons plan was to set a hearing for one hour, beginning at 3:00 PM,
and when Plaintiff arrived, sandbag him and announce the hearing would continue until
Page - 26
7:00 to 8:00 oclock tonight. This would amount to a 4 or 5 hour hearing, and is
contrary to Plaintiffs ADA request for hearings limited to 1 hour or so. Plaintiff told
Judge Barton that diabetes prevented him from staying 4 or 5 hours instead of one hour
as previously schedule. Plaintiff did not bring diabetes medicine to the hearing. Other
disabilities also prevent Plaintiff from attending a hearing for 4 or 5 hours. All of this
must be addressed under the provisions of the ADA, not in open court on an ad hoc basis.
55. It appears Judge Barton intended to deliberately inflict harm upon Plaintiff based
on his disability instead of making an ADA accommodation. Plaintiff cannot tolerate a 4
or 5 hour hearing due to his disability. In addition, a 4 or 5 hour hearing that extends into
the night would fundamentally alter the nature of court programs, services, or activities,
and may impose an undue financial or administrative burden on the courts. This
marathon hearing would also unnecessarily burden defense counsel and the court
reporter, who, like Plaintiff, planned for a one hour hearing. Also, a marathon hearing
lasting into the night would incur overtime costs for bailiffs and other court personnel.
56. Plaintiff fears that he will not receive a fair trial because Judge Barton proposed a
process that would inflict harm upon him and was not an ADA accommodation.
57. Judge Bartons plan is retaliation against the Plaintiff for making an ADA
accommodation request. Pro se plaintiff's disability retaliation claims brought under Title
VII and Florida Civil Rights Act (FCRA) would be construed as ADA retaliation claim.
Civil Rights Act of 1964, 704(a), 42 U.S.C.A. 2000e-3(a); Americans with
Disabilities Act of 1990, 503(a), 42 U.S.C.A. 12203(a); West's F.S.A. 760.10(7).
Moore v. Hillsborough County Board of County Commissioners, 544 F.Supp.2d 1291.
Page - 27
Because Judge Barton retaliated against the Plaintiff for making an ADA accommodation
request, Plaintiff fears that he will not receive a fair trial.
Count 8, Plaintiffs Motion to Disqualify Judge Barton
58. Judge Barton announced at the hearing May 5, 2010 that he would not follow the
Florida State Courts ADA procedure described in paragraphs 44 and 45 and Exhibit 2.
Plaintiff asked about his pending ADA request at the hearing May 5, 2010 and Judge
Barton responded: (Transcript, May 5, 2010, page 4, line 23)
23 MR. GILLESPIE: Judge, may I speak?
24 THE COURT: About what?
25 MR. GILLESPIE: Judge, as you know, I
(continued, Transcript, May 5, 2010, page 5, line 1)
1 submitted an ADA request. I have not received a
2 response to it yet. It's my understanding that the
3 ADA coordinator was unable to make a decision and
4 that he has sent the matter to the legal
5 department, and that Mr. Roland is the individual
6 that is to make the decision.
7 THE COURT: Well --
8 MR. GILLESPIE: I have not heard from him.
9 THE COURT: Well, his role is to facilitate
10 the request and to evaluate it. My thinking was
11 that compliance with the request is better than any
12 written or oral response.
Page - 28
59. Because Judge Barton announced in open court May 5, 2010 that he would not
follow the Florida State Courts ADA procedure described in paragraphs 44 and 45 and
Exhibit 2, Plaintiff fears that he will not receive a fair trial in the court where the suit is
pending on account of the prejudice of the judge of that court against the Plaintiff.
Count 9, Plaintiffs Motion to Disqualify Judge Barton
60. Judge Bartons proposed 4 or 5 hour marathon hearing failed to account for
Plaintiffs auditory disability. During an earlier hearing before Judge Isom on February 5,
2007, Plaintiff informed Judge Isom that he had a problem hearing what was being said.
MR. GILLESPIE: Right now, Judge, my head is swimming to the point where I'm
having a hard time even hearing you. (Transcript, February 7, 2007, p. 45. line 7)
61. In a letter to Mr. Casares dated April 7, 2010 Plaintiff requested a response to his
ADA accommodation request and informed Mr. Casares that Judge Bartons Order
scheduling 12 motions for one hour did not comply with his ADA accommodation
request. Plaintiff also wrote the following: Also, on March 29, 2010 I submitted a
Motion For Leave to Amend Americans with Disabilities Act (ADA) Accommodation of
Neil J. Gillespie to the Court. As shown on the Transcript, hearing before the Honorable
Claudia Isom, February 5, 2007 (p45, line 7) I had difficulty hearing and need
accommodation for that disability.
62. Mr. Casares responded to Plaintiff by email April 14, 2010 Your difficulty-in-
hearing was not known to me until your latest correspondence. On this matter, we can
help you. We will provide the hand-help amplification device upon your request.
63. Plaintiff notified Mr. Casares by certified letter dated April 26, 2010 that Many
years ago I was diagnosed with hearing loss and prescribed a hearing aid which is
Page - 29
available to me. Plaintiff informed Mr. Casares I believe my difficulty in hearing is due
to Post Traumatic Stress Disorder (PTSD). This is because on February 5, 2007 before
Judge Isom Plaintiff could hear okay until about two hours into the hearing. So the
auditory deficit appeared related to the stress of the extended hearing time. Plaintiff
thought real-time transcription services might help, and made that request with the
understanding it would include a written transcript to refer to at the hearing.
64. On April 28, 2010, Plaintiff wrote to Judge Barton As of today the Court has not
responded to my ADA accommodation request. On April 14, 2010 Mr. Casares notified
me Your request is not within our means to resolve and was referred to the Legal
Department for the appropriate course of action. As of today the Legal Department has
not responded. Judge Barton did not respond to Plaintiff about his ADA request.
65. On April 28, 2010, Plaintiff submitted Plaintiffs Motion to Consider Prior ADA
Accommodation Requests. This replaces Motion For Leave To Amend Americans With
Disabilities Act (ADA) Accommodation of Neil J. Gillespie submitted March 29, 2010.
Plaintiff provided Judge Barton a courtesy copy. Judge Barton did not respond.
66. On May 4, 2010, Plaintiff received an email (12:13 PM) from Anita Ellababidy,
Circuit Court Reporters, (813) 307-3597. Ms. Ellababidy wrote (in part), Tomorrow
afternoon, a member of our staff will be in Judge Bartons courtroom to assist you with
Computer Aided Realtime Translation (CART) of the proceedings in your case. The
court reporter will sit near you, and you will be able to view her computer to see what is
being said and by whom. It is much like the closed captioning you see on TV.
67. Plaintiff responded to Ms. Ellababidy by email May 4, 2010 (2:05 PM) in part:
Page - 30
While I appreciate your offer of CART reporting, I am not sure how helpful it
will be relative to my disability. It was my understanding that there would be
some kind of hard copy generated - not an official transcript - but some kind of
hard copy to read and refer to during the hearing. If your service is like closed
captioned TV, that may be more distracting than helpful.
I have anatomically based hearing loss and have a hearing aid. However in my
opinion, which is not a medical opinion, my difficulty in understanding during a
stressful hearing is related to other disabilities. Short term memory is one issue,
and if words move off a screen in CART reporting that would not be helpful.
Ms. Ellababidy did not respond to Plaintiffs email.
68. Court Reporter Tamara White appeared at the hearing May 5, 2010 and provided
CART Reporting. CART Reporting not useful for the reasons set forth above. Also, the
type on Ms. Whites computer screen was too small for Plaintiff to read and
simultaneously move about representing himself. Mr. Rodems made comments on the
record to which Plaintiff concurred:
(Transcript, May-05-10, page 9, line 3)
3 MR. RODEMS: Your Honor, just so the record is
4 perfectly clear. The court reporter sitting at the
5 table with Mr. Gillespie, as I understand it, is
6 taking everything down verbatim as it happens. And
7 there is a screen from which Mr. Gillespie is able
8 to read. So, he clearly has the availability of
9 the words that are spoken being in a written
Page - 31
10 fashion that he can observe.
11 And I would note that during the entire time
12 that you and he spoke just now, which went on for
13 some five or ten minutes, he did not look at that
14 scene one time and he seems to be able to hear you
15 quite clearly.
16 THE COURT: Well --
17 MR. RODEMS: I think that is important to note
18 as well.
19 MR. GILLESPIE: Your Honor, I concur with
20 Mr. Rodems. I don't think this would be helpful.
21 So, we are in agreement on that. Thank you, sir,
22 for bringing that up. I appreciate that.
69. Because Judge Barton failed to follow the Florida State Courts ADA procedure
described in paragraphs 44 and 45 and Exhibit 2, the court-provided CART Reporting
that was not useful in accommodating Plaintiffs disability. It appears that CART
Reporting was provided as a straw man, an excuse for the court to claim that it
provided Plaintiff an ADA accommodation when in fact it did not. Plaintiff fears that he
will not receive a fair trial in the court where the suit is pending on account of the
prejudice of the judge of that court against the Plaintiff.
Count 10, Plaintiffs Motion to Disqualify Judge Barton
70. Judge Barton announced on the record he is not sure he would follow Judge
Isoms law review, even though he admires Judge Isom and also her law review:
Page - 32
(Transcript, May-05-10, page 53, line 5)
5 THE COURT: I am going through the list now.
6 Seven -- while I admire Judge Isom and also her Law
7 Review article that she wrote back in 1998, I am
8 not sure that I am going to apply that.
71. Judge Isoms law review is Professionalism and Litigation Ethics, 28 STETSON L.
REV. 323, 324 (1998). The law review is listed on Westlaw as good law with no negative
citing references. Judge Barton said that while I admire Judge Isom and also her law
review article that she wrote back in 1998, I am not sure that I am going to apply that.
72. Judge Isoms law review has stood the test of time for 12 years. Stare decisis
is the legal principle by which judges are obliged to obey precedents established by prior
decisions. While a law review is not a prior decision in the strict sense, nothing could be
more on point relative to discovery sanctions in this matter.
73. In her law review Judge Isom urges the use of case management instead of
extreme sanctions. In the instant case Judge Barton took the polar opposite view. Judge
Barton neglected his case management duties imposed by Rule 2.545, Fla.R.Jud.Admin.
Judge Barton granted Rodems multiple hearings with plenty of time to establish, award,
and garnish $11,550 in sanctions. At the same time Mr. Rodems has not provided most of
Defendants discovery in this matter. Now Judge Barton wants to restrict Plaintiffs
hearing time, or hold ridiculous marathon sessions into the night. Judge Barton accepted
false testimony from Mr. Rodems about a signed contingent fee agreement when none
existed, and dismissed three of four counts of the original complaint on the basis of that
false information. When Mr. Bauer moved to withdrawal in October, 2008, Judge Barton
Page - 33
again abandoned his case management duties imposed by Rule 2.545, Fla.R.Civ.P, and
let the case sit for one year with essentially no movement. Mr. Rodems also took no
action during this year to move the case forward, undercutting his current complaints that
the case is taking too long to adjudicate. Apparently Judge Barton and Mr. Rodems only
want to move the case forward when Plaintiff is not represented by counsel.
74. On May 5, 2010, Judge Barton reiterated that $11,550 in sanctions was
appropriate, even with the benefit hindsight.
13 MR. GILLESPIE: And that is fine, Judge. You
14 made a decision in this case already. You felt
15 that Mr. Rodems was entitled to $11,500 for some
16 really minor missteps.
17 THE COURT: Well, that is your
18 characterization. That, obviously, wasn't the
19 Court's.
20 MR. GILLESPIE: Yes, that is my
21 characterization. Do you still feel that that was
22 appropriate?
23 THE COURT: Yes.
75. Because Judge Barton still feels that $11,550 in discovery sanctions are
appropriate despite overwhelming evidence to the contrary, Plaintiff fears that he will not
receive a fair trial in the court where the suit is pending on account of the prejudice of the
judge of that court against the Plaintiff.
Count 11, Plaintiffs Motion to Disqualify Judge Barton
Page - 34
76. Judge Barton failed to provide Plaintiff equal hearing time in this matter, or to
conduct hearings in the matter he afforded the Defendants. Judge Barton failed to perform
case management duties imposed on him under Rule 2.545, Fla.R.Jud.Admin.
77. For a period of one year following the motion for withdrawal by Robert W. Bauer
on October, 2008, Judge Barton allowed this case to languish and failed to perform his
case management duties imposed by Rule 2.545, Fla.R.Jud.Admin. Mr. Rodems also took
no action during this year to move the case forward, undercutting his current complaints
that the case is taking too long to adjudicate. Apparently Judge Barton and Mr. Rodems
only want to move the case forward when Plaintiff is not represented by counsel.
78. The following is a list of hearing times granted by Judge Barton in this lawsuit:
a. July 3, 2007, Judge Barton, 45 minutes on Defendants motion for section 57.105
FS and discovery sanctions.
b. August 15, 2007, Judge Barton, 45 minutes on Defendants motion for
voluntary dismissal.
c. October 30, 2007, Judge Barton, 45 minutes on Defendants motion for judgment
on the pleadings.
d. March 20, 2008, Judge Barton, 60 minutes on Defendants motion on amount of
attorneys fees.
e. July 1, 2008, Judge Barton, 30 minutes on Defendants judgment on the
pleadings, fact information sheet
f. October 1, 2009, Judge Barton, 30 minutes on motion to withdrawal by Robert
W. Bauer.
Page - 35
g. January 26, 2010, Judge Barton, 60 minutes for all pending motions of which
there were 10 or more outstanding.
h. May 5, 2010, Judge Barton, 60 minutes for the following 12 items:
(1) Plaintiffs Motion to Compel Discovery from 12/14/06
(2) Plaintiffs Second Motion to Compel Discovery from 2/1/07
(3) Plaintiffs Motion for Rehearing from 7/16/08
(4) Plaintiffs Claim of Exemption from 8/14/08
(5) Plaintiff's Motion for Contempt
(6) Plaintiffs Motion for Order to Show Cause and Contempt
(7) Plaintiffs Additional Time to Find Counsel
(8) Plaintiffs Motion for An Order of Protection
(9) Plaintiffs Amended Motion to Disqualify counsel
(10) Defendant's Motion to Compel Production and Attend Deposition
(11) Defendant's Request for Inspection
(12) Defendant's Notice for Trial
79. Plaintiff asked for hearing time equal to what was provided Defendants. Judge
Barton has stated on the record that hearing time is precious due to an avalanche of
foreclosure cases. (Transcript, Jan-26-10, p. 15, line 10). the volume of cases that we
have now in this division, which is roughly five thousand cases, rather than the less than
one thousand cases only a few years ago (Transcript, May-05-10, p. 53 line 25). Mr.
Rodems noted, the case load that circuit judges, such as yourself, are carrying is at an all-
time high due to the number of foreclosures. (Transcript, May-05-10, p. 14, line 6).
However a significant number of the foreclosure cases are part of a scheme. As such,
Page - 36
reliance on that excuse to deny Plaintiff the same rights previously given to the
Defendants is prejudicial. Plaintiff must have the same hearing time as Defendants.
80. The Florida Attorney General is investigating one of the nation's largest
foreclosure law firms over allegations it falsified legal documents to expedite foreclosure
cases filed by its lender clients. Tampa-based Florida Default Law Group "appears to be
fabricating and/or presenting false and misleading documents in foreclosure cases,"
according to the AGs Economic Crimes Division. The investigation is based on
allegations that Florida Default lawyers submitted misleading documents to judges
hearing foreclosure cases.
81. Because Judge Barton has failed to perform his case management duties imposed
by Rule 2.545 Fla.R.Civ.P, Plaintiff fears that he will not receive a fair trial in the court
where the suit is pending on account of the prejudice of the judge against the Plaintiff.
Count 12, Plaintiffs Motion to Disqualify Judge Barton
82. Upon information and belief, Plaintiff is being hometowned by Judge Barton.
Plaintiff does not believe he can received a fair hearing from Judge Barton. Plaintiff made
this statement at the hearing: (Transcript, May 5, 2010, page 33, line 19)
19 Judge, I see no way to proceed now in this
20 Court because I am being hometowned. I have
21 discussed this case with other attorneys. They
22 said that your $11,000 sanction was extreme. They
23 never heard of it. It was wildly excessive. And
24 they said, you are being hometowned. And
25 "hometowned", in case you are not familiar with the
Page - 37
(continued, Transcript, May 4, 2010, page 34, line 1)
1 term, means that the Court is granting favor to an
2 attorney from its own district and against a party
3 from out of town. And I am from out of town, which
4 is in another county and in another district.
83. Because Judge Barton failed to deny Plaintiffs statement that he is being
hometowned, Plaintiff takes that to mean it is true and admitted by Judge Barton.
Plaintiff fears that he will not receive a fair trial in the court where the suit is pending on
account of the prejudice of the judge of that court against the Plaintiff.
84. Last year the Florida Supreme Court ordered the state to reimburse $70,000 to
Hillsborough Circuit Judge Gregory Holder for his expenses in successfully defending
against plagiarism charges. Judge Holder attempted to recover $1.77 million in legal fees.
An untoward entry into Judge Holders office by Circuit Judge Robert Bonanno sparked a
grand jury investigation into judicial misconduct in Hillsborough County that resulted in a
presentment December 8, 2000 and the resignation of Judge Bonanno and Circuit Judge
Gasper Ficarrotta. Judge Holder told investigators of conversations he had with bailiff
Tara Pisano. She and Judge Ficarrotta had sex in Ficarrotta's chambers while Judge
Holder conducted jury trials in the next room. Pisano reportedly saw large amounts of
money in Ficarrotta's office, including a cash-filled security box. Pisano saw Ficarrotta
solicit and receive money from lawyers for Sheriff Cal Henderson's 2000 election
campaign. FDLE documents also described a five-year extramarital affair between Judge
Bonanno and his former court clerk, Joan Helms. Misconduct in the 13
th
Judicial Circuit is
not limited to the courts. State Attorney Harry Lee Coe committed suicide on the eve of an
Page - 38
investigation into gambling debts, loans from employees, and thousands of dollars in bad
check charges. The grand jury noted in its presentment that Judge Holder has a reputation
as a forthright man who is willing to speak his mind and takes a dim view of misbehavior
on the part of his colleagues. This made Judge Holder a target to his detractors. Plaintiff
believes he has become a target for speaking out about Defendants wrongdoing, and
wrongdoing of this court, and is being treated in a similar way to Judge Holder.
85. Plaintiff believes Judge Barton and the Thirteenth Judicial Circuit are unable to
lawfully adjudicate this lawsuit. Plaintiff contacted Court Counsel David Rowland about
case management and other issues, but Mr. Rowland did not responded. Plaintiff wrote
Chief Judge Manuel Menendez, Jr. about issues in this lawsuit but he did not respond.
When court officials fail to respond to correspondence it creates a credibility problem for
the court. It is a violation of the public trust, reflects discredit upon the administration of
justice, and suggests partiality in the consideration of litigants.
86. Because Plaintiff believes the Thirteenth Judicial Circuit is unable to lawfully
adjudicate this lawsuit, Plaintiff believes other alternatives must be considered. Section
38.13 provides for a Judge as litem.
38.13 Judge ad litem; when may be selected in the circuit or county
court.--When, from any cause, the judge of a circuit or county court is
disqualified from presiding in any civil case, the parties may agree upon
an attorney at law, which agreement shall be entered upon the record of
said cause, who shall be judge ad litem and shall preside over the trial of,
and make orders in, said case as if he or she were the judge of the court.
Page - 39
Nothing in this section shall prevent the parties from transferring the cause
to another circuit or county court, as the case may be.
The operative part of this option is the last sentence: Nothing in this section shall prevent
the parties from transferring the cause to another circuit or county court, as the case may
be. Plaintiff believes this lawsuit should be transferred to another court.
87. On November 30, 2009, Governor Charlie Crist filed a petition requesting that a
Statewide Grand Jury be convened in order to "examine and evaluate public policy issues
regarding public corruption and develop specific recommendations regarding improving
current laws." On December 2, 2009, the Florida Supreme Court issued an Order to
convene the Nineteenth Statewide Grand Jury for the purpose of investigating crimes,
returning indictments, and making presentments. Attorney General Bill McCollum issued
a statement on the statewide grand jury on public corruption: "Floridians should be able to
be proud of the public officials who serve their state and their communities, not ashamed
of the latest scandal by someone in elected office. We absolutely should expect better of
those we have chosen to lead us. The grand jury will need to examine the blatant theft of
public resources and, perhaps most importantly, the illicit sources of influence upon public
officials and how to lift the cloud of scandal that has been present for far too long.
88. Plaintiff believes aspects of this case should be referred to the Nineteenth
Statewide Grand Jury for prosecution, including, but not limited to, the perjury of Ryan
Christopher Rodems to Judge Nielsen that fatally disrupted this lawsuit. Plaintiff will
forward a copy of Plaintiffs First Amended Complaint and a copy of this motion to the
Florida Attorney General, and to the Florida Supreme Court for consideration and
suggestions how to proceed, either under section 38.13 FS or some other venue.
89. Because Judge Barton has "hometowned" Plaintiff, he fears that he will not
receive a fair trial in the court where the suit is pending on account of the prejudice of the
judge of that court against the Plaintiff.
The undersigned movant certifies that the motion and the movant's statements are
made in good faith. Submitted May 20, 2010.
~ / ' 1 _
.
v ~ - -
Under penalties of perjury, I declare that I have read the foregoing motion and the
facts stated in it are true.
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by mail May 20, 2010 to the office of Ryan Christopher Rodems, attorney for
the Defendants, at Barker, Rodems & Cook, PA, 400 North Ashley Drive, Suite 2100,
Tampa, Florida 33602.
STATE OF FLORIDA
COUNTY OF MARION
The foregoing was acknowledged before me by Neil J. Gillespie,
who is personally known to me.
Page - 40


THE LA W OFFICES OF
ROBERT W. BAUER, P.A.
2815 NW 13th Street, Suite 200, Gainesville, FL 32609
www.bauerlegal.com
Robert w: Bauer, Esq.
Tanya M UhI, Esq.
Phone: (352)375.5960
Fax: (352)337.2518
July 24, 2008
The Honorable James M. Barton, II
...4' ,......
800 E. Twiggs St., Room 512
Tampa, Florida 33602
Manner of delive!1
T
- V.So Mai!
Re: Gillespie v. Barker, Rodems, and Cooke
. 2:

tJ:)
..
Dear Judge:
W
N
After speaking with my client, making a thorough review of our files and computer
records I must regretfully inform the court and counsel that I inadvertently made
misrepresentations at our last hearing. In that hearing I stated that my office had forwarded the
Information Fact Sheet to Mr. Gillespie. I also stated that my office had called him to tell him to
fill it out. I now understand that was not correct. Because of my assertions the Court found Mr.
Gillespie to be in contempt. I wish at this time set the record straight.
While I did truly believe that those things had happened at the time I advised the court of
such, I now know that I was in error in not having personally confirmed such. I take full
responsibility for the error and I wish to clarify this to insure that the court realizes that Mr.
Gillespie did not ignore the courts directive.
I apologize both to the court, opposing counsel and Mr. Gillespie for my error.

/ /Z


Robert W. Bauer, Esq.
cc: Ryan Rodems
Neil Gillespie
1

Fl ori da St at e Court s ADA
I nf or mat i on' s Not es
Florida St at e Court s ADA
I nf ormat ion
Aug 24, 2009
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Monday, August 24, 2009 at 6: 08am
The Americans wit h Disabilit ies Act (ADA) of 1990 was enact ed t o ensure t hat all qualified
individuals wit h disabilit ies enj oy t he same opport unit ies t hat are available t o persons wit hout
disabilit ies. The ADA Amendment s Act of 2008 makes import ant changes t o t he definit ion of
t he t erm "disabilit y." Unit ed St at es Depart ment of Just ice is responsible for issuing ADA
regulat ion f or st at e and local government s ( 28 Code of Federal Regulat ion, Part 35). These
federal laws and regulat ions are collect ively referred t o as t he ADA on t his page.

Equalizing opport unit ies is of paramount import ance t o t he everyday operat ions of t he
j udiciary. The Florida St at e Court s Syst em at t empt s t o make reasonable modificat ions in
policies, pract ices, and procedures; furnish auxiliary aids and services; and afford program
accessibilit y t hrough t he provision of accessible facilit ies, t he relocat ion of services or
programs, or t he provision of services at alt ernat ive sit es, as appropriat e and necessary.
However, t he ADA does not require t he court syst em t o t ake any act ion t hat would
fundament ally alt er t he nat ure of court programs, services, or act ivit ies, or t hat would impose
an undue financial or administ rat ive burden on t he court s.

This page provides an overview of procedures implement ed by t he Florida st at e court t o make
t heir programs and services accessible t o persons wit h disabilit ies. For more informat ion about
implement at ion of t he ADA in t he Florida St at e Court s Syst em, including Tit le I / employment ,
please see ht t p: / / www.f lcourt s.org/ gen_public/ pubs/ adamain.sht ml.
Florida Court ADA Coordinat ors

Each t rial and appellat e court in Florida has designat ed an ADA Coordinat or t o assist
individuals wit h disabilit ies who need access t o court services and programs. Cont act
informat ion f or t he Court ADA Coordinat ors is available at
ht t p: / / www.flcourt s.org/ gen_public/ pubs/ adamain.sht ml. You can also link t o informat ion
about ADA procedures in each court from t hat web page.

Procedures for Request ing an ADA Accommodat ion

Qualified individuals wit h disabilit ies who need an accommodat ion t o part icipat e in a court
proceeding or ot her court act ivit y or service, should cont act t he Court ADA Coordinat or as far
in advance as possible, but pref erably at least five working days before t he dat e of t he
court room proceeding or event . Request s may be present ed eit her orally or in writ t en format .
Request s must include a descript ion of t he disabilit y t hat necessit at es t he provision of an
accommodat ion. The j udge, court ADA coordinat or, or ot her court represent at ive, as
appropriat e t o t he circumst ances, may engage in an int eract ive process wit h t he individual in
order t o det ermine t he appropriat e accommodat ion. Af t er analysis, t he j udge, court ADA
coordinat or, or ot her court represent at ive, as appropriat e t o t he circumst ances, will inform t he
individual whet her t he request will be grant ed.

Accommodat ions Provided by t he Florida Court s

As required by t he ADA, t he det erminat ion of whet her an individual has a disabilit y and t he
accommodat ion appropriat e t o a part icular sit uat ion is an individualized inquiry and each
decision is t herefore made on a case-by-case basis. Accommodat ions t hat are grant ed by t he
st at e court s are made at no cost t o qualified individuals wit h disabilit ies. Examples of Tit le I I
accommodat ions t hat may be provided by t he Florida st at e court s include:

Relocat ing a service t o enable a person wit h a disabilit y t o part icipat e
Obt aining or modifying equipment or devices
Allowing a person wit h a disabilit y t o provide equipment or devices t hat t he public ent it y is not
required t o provide

Addit ionally, t he Florida St at e Court s Syst em will generally, upon request , at t empt t o provide
appropriat e auxiliary aids and services t hat are necessary t o afford eff ect ive communicat ion
for qualified persons wit h disabilit ies t o part icipat e equally in court programs, services, and
act ivit ies. Examples of auxiliary aids or services t hat t he Florida St at e Court s Syst em may
provide for qualified individuals wit h disabilit ies include:

Assist ive list ening devices
Qualified sign language int erpret ers and oral int erpret ers
Real-t ime t ranscript ion services
Accessible format s such as large print , Braille, elect ronic document on disket t e, or audio t apes
Qualified readers

Examples of aids or services t he Florida St at e Court s Syst em is not required t o provide under
Tit le I I of t he ADA include:

Transport at ion t o t he court house
Legal counsel or advice
Personal devices such as wheelchairs, hearing aids, or prescript ion eyeglasses
Personal services such as medical or at t endant care
Readers for personal use or st udy
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Addit ionally, Florida court s cannot administ rat ively grant , as an ADA accommodat ion, request s
t hat impact court procedures wit hin a specific case. Request s for an ext ension of t ime, a
change of venue, or part icipat ion in court proceedings by t elephone or videoconferencing
must be submit t ed by writ t en mot ion t o t he presiding j udge as part of t he case. The j udge
may consider an individuals disabilit y, along wit h ot her relevant fact ors, in grant ing or
denying t he mot ion.

Furt hermore, t he court cannot exceed t he law in grant ing a request for an accommodat ion.
For example, t he court cannot ext end t he st at ut e of limit at ions for f iling an act ion because
someone claims t hat he or she could not make it t o t he court on t ime due t o a disabilit y, nor
can t he court modif y t he t erms of agreement s among part ies as an ADA accommodat ion.

Grievance Procedures

Each t rial and appellat e court in Florida has adopt ed grievance procedures f or t he prompt and
equit able resolut ion of all complaint s alleging a violat ion of Tit le I I . A grievance is a formal
complaint made by a person, or on behalf of a person, alleging t hat he or she has been
subj ect ed t o unlawful discriminat ion, or inaccessibilit y t o facilit ies, programs, services,
benefit s, or act ivit ies on t he basis of a disabilit y. Persons seeking t o file a grievance regarding
a Florida court should follow t he est ablished grievance procedures in t he appropriat e t rial or
appellat e court . The Florida St at e Court s Syst em grievance procedure and complaint form are
available online at ht t p: / / www.flcourt s.org/ gen_public/ pubs/ adamain.sht ml.

Comment s / Quest ions / Suggest ions

Comment s, quest ions, or suggest ions may be submit t ed via email t o ada@f lcourt s.org.
Updat ed about 8 mont hs ago Comment Like
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