EMERGENCY MOTION FOR ORDER TO SHOW CAUSE · PDF file · 2014-09-23William Todd...

William Todd Overcash’ Emergency Motion for Order to Show Cause 1

IN THE FIFTH DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

William Todd Overcash, Petitioner, 5th DCA CASE #: 5D-14-2079 v. Re: 5th Judicial Circuit, in and Lori A. Foultz, for Marion County, Case #: Respondent. 2002-4655-DR-FJ

EMERGENCY

MOTION FOR ORDER TO SHOW CAUSE Pursuant to Florida Rules of Appellate Procedure,

Rules 9.100 (e), (f) and (h), and 9.300 COMES NOW the Petitioner, William Todd Overcash, “Former

Husband” of Lori A. Foultz, in propria persona and pro se, pursuant to

Florida Rules of Appellate Procedure 9.100(e)(f) and (h) and 9.300, with this

EMERGENCY MOTION FOR ORDER TO SHOW CAUSE, to divest

Senior Judge Barbara Gurrola of all jurisdiction and thus from presiding in

any part of this case now pending in the Fifth Judicial Circuit Court in and

for Marion County, Florida, Case Number 2002-4655-DR-FJ, or any related

proceedings involving William Todd Overcash.

An emergency exists because Judge Gurrola has scheduled a hearing

for 10:00 am Friday 13 June 2014 on Lori A. Foultz’ motion, inter alia, to

terminate Petitioner’s right to represent himself pro se, in propria persona,

without an attorney, in violation of Petitioner’s rights under Faretta v.

California, 422 U.S. 806 (1975)1. (Motion Appendix: Order of 9 May 2014

1 “…forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so. . . . The counsel provision supplements this design. It speaks of the "assistance" of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing


setting hearing; 9 May 2014 was the same day as Judge Gurrola’s denial of

the final disqualification in Petition Appendix R2).

In support of this Emergency Motion, Petitioner William Todd

Overcash will show that new facts have come to light only since 16 April

2014, unquestionably mandating recusal and justifying a review of all Judge

Gurrola’s orders. On 16 April 2014, a transcript of a 2 April 2014 hearing

was released, indicating that Judge Barbara Gurrola has had ex parte (and

entirely social) communications with Respondent and “Former Wife” Lori

A. Foultz and her attorney and, even more shockingly, had accepted gifts

from the minor child in whose interests this case is (allegedly) largely being

litigation, within a case history and circumstantial matrix as follows:

I. Jurisdiction

Judge Gurrola has denied a long series of Petitioner’s Motions to

Disqualify (Petition Appendix K-R), but her latest denial (Appendix R)

simply cannot stand, as a matter of due process of law and all appearances of

judicial fairness and propriety, in light of the outrageous facts revealed in the

transcript of the 2 April 2014 hearing. And for that reason Petitioner

herewith moves and requests immediate entry of an Order to Show Cause

from this Florida Fifth District Court of Appeal.

A Writ of Prohibition is the most generally approved avenue

appropriate for relief in challenging the denial of a motion for judicial defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the [Sixth] Amendment. In such a case, counsel is not an assistant, but a master…” Faretta, supra, at 806 U.S. 815 & 820. 2 William Todd Overcash incorporates his 10 June 2014 Appendix to his Petition for Writ of Prohibition, especially but not limited to the Transcripts of Hearings held before Judge Gurrola on 2 April 2014 and 30 October 2013) and incorporates the same by reference as if fully copied and restated herein, as part of this Motion and/or this Motion’s Appendix.


disqualification. Bundy v. Rudd, 366 So.2d 440 (Florida 1978); Pierce v.

State, 873 So.2d 618 (Florida 2nd DCA 2004); Frengel v. Frengel, 880

So.2d 763 (Florida 2nd DCA 2004); Puckett v. State, 591 So.2d 326 (Florida

5th DCA 1992); and Rollins v. Baker, 683 So.2d 1138 (Florida 5th DCA

1996). Only in very unusual circumstances is a Petition for Certiorari

required to review a judge’s denial of disqualification. Barber v.

Mackenzie, 562 So.2d 755 (Florida 3rd DCA 1990), review denied 576

So.2d 288 (Florida 1990), see also Doe ex rel. Doe v. Publix Super

Markets, Inc., 814 So.2d 1249 (Florida 2nd DCA 2002).

II. Statement of the Facts

Judge Barbara Gurrola was assigned to the Overcash case not by

random reassignment order of the Marion County clerk or Marion County

Administrative Judge David B. Eddy, but by Judge Daniel D. Merritt, Sr.,

Chief Judge of the 5th Circuit, sitting in Hernando County. Chief Judge

Merritt’s judicial assistant Patricia Kodetsky, specifically stated that because

of “local conflicts”, Judge Eddy expressly and precisely requested that Judge

Barbara Gurrola be assigned to this case. (Petition Appendix C: 5).

This was just the beginning of the long saga leading to the present

Motion for Order to Show Cause. William Todd Overcash’s made his first

Motion to Disqualify Judge Barbara Gurrola on Monday, 15 October 2012,

but Judge Gurrola denied it on 17 October 2012 as “legally insufficient.”

The personal (non-random appointment) irregularity of Judge

Gurrola’s assignment to the case, together with all the matters which

William Todd Overcash raised in the above and foregoing motions and

petitions, filed both with and without representation, should at the very least

alert the objective and dispassionate observer that there might be something


highly irregular about Judge Gurrola’s behavior in this case. Again, even

when Attorney Beth Gordon no longer represented the Petitioner, she wrote

a letter supporting William Todd Overcash’s allegations and inferences of

bias against Judge Gurrola. Appendix D: Letter of 17 January 2014.

The prior proceedings regarding recusal or disqualification

documented in Appendix K-Q, all antedated William Todd Overcash’s latest

“Motion to Recuse Judge Gurrola and the Marion County 5th Judicial

Circuit,” filed 2 May 2014. Overcash supplemented his initial filing by

affidavits and further legal briefing on 5 May, 6 May, and 7 May (all 2014),

and (by now predictably) denied by Judge Barbara Gurrola on 9 May 2014.

During most of the past two years, but not all of it, William Todd

Overcash has represented himself pro se, in propria persona, although he

has been consistently supported in his efforts by his attorney Beth Gordon

(Letter of Beth Gordon, Appendix D; see also Affidavit of Carolyn Torrey,

Appendix E, along with Petitioner’s own affidavits, Appendix I).

III: Petitioner’s 2 May 2014 Motion to Recuse: New Facts Requiring Mandatory Disqualification of

Judge Barbara Gurrola by Disclosures in Transcript of 2 April 2014 (Appendix F)

William Todd Overcash has never believed he would be treated fairly

by Judge Barbara Gurrola. Petitioner Overcash realizes that he risks the fate

of “the boy who cried wolf” because of his multiple filings.

However, the transcript of a hearing held on Wednesday, 2 April

2014, shows beyond reasonable doubt that grounds exist for immediate

and mandatory disqualification. No reasonable person would trust Judge

Barbara Gurrola to maintain the “cold neutrality of an impartial judge”

(Hayslip v. Douglas, 400 So.2d 553 [Florida 4th DCA 1981); quoting State


ex rel. Davis v. Park, 141 Florida 516, 194 So. 613 [1938]) “whose

neutrality is indifferent to every factor in trial but that of administering

justice.” State ex rel. Brown v. Dewell, 131 Florida 566, 179 So. 695 (1938).

See also Crosby v. State, 97 So.2d 181 (Florida 1957) and Brown v. St.

George Island, Ltd., 561 So.2d 253 (Florida 1990).

“[A] litigant may reasonably question a judge’s impartiality” from the

transactions and occurrences revealed on page 16 of the 2 April 2014

transcript. Appendix F: 16. The complete text of the exchange in question

on 2 April 2014 ran and is recorded as follows on page 15, line 17 through

page 16, line 17:

THE COURT: Ms. Foultz, how is Natasha? MS. FOULTZ: She’s doing good. THE COURT: Is she? MS. FOULTZ: Yes. THE COURT: Good. How is school? Does she like school [sic] MS. FOULTZ: She’s liking school, all her friends. THE COURT: She got new friends? MR. SHELNUTT: She’s very extroverted. She makes friends. MS. FOULTZ: Thank you for asking. THE COURT: Oh, I did love her little bracelet she sent me. MR. SHELNUTT: The only happy thing in this case that I missed because I was down somewhere else. THE COURT: I know. And then they pointed out that your wife was – I didn’t know your wife. MR. SHELNUTT: Yeah. Well, you know, this has been going on ten years. Lori’s like family. THE COURT: Well, I’m glad she’s doing well and has friends. Does she like living up there?


MS. FOULTZ: Yes, and it’s close to the beach. MR. SHELNUTT: Your Honor, while – and I don’t mean to interrupt. Does the Court contact you by Judicial assignment, so to speak?

(See Appendix F, bold emphasis added by Petitioner).

The mere fact that Judge Barbara Gurrola acknowledges

receiving and that she “did love her little bracelet she sent me”, thus

accepting a gift from the minor child, articulates and admits an act of

such impropriety that her impartiality must seriously be brought into

question. Petitioner’s 2 May 2014 Motion to Recuse Judge Gurrola was

legally sufficient on its face, and should have been granted. Petitioner did

not verify the Motion but executed two affidavits (Appendix I) in support of

his Motion---which is also supported by the substance of Attorney Beth

Gordon’s 17 January 2014 letter, as well as Beth Gordon’s prior Petition for

Writ of Prohibition.

The above-entitled exchange appears to refer to a social event that

was planned, between Lori A. Foultz, Mark Shelnutt, and Judge Barbara

Gurrola, at a hearing held on 30 October 2013, to finalize the adoption of the

minor child, Natasha, by Lori A. Foultz and her new husband. See

Appendix G, relating to proceedings in a separate but closely related case:

CASE NO: 2013-4392-DR-FK IN RE: The Matter of the

Termination of Parental Rights for the Proposed Adoption of

a Minor Child. During the 30 October 2013 hearing, Judge Gurrola also objectively

appeared to confirm not merely her personal bias against Petitioner William

Todd Overcash, but her ongoing (and entirely social, extra-judicial) secret ex


parte communications with the minor child Natasha and her mother, a party

to ongoing, pending litigation, beginning on page 13, line 25: THE COURT: She’s 12 years old. She needs to have a celebration with family members. And I recall speaking with her prior to the summer vacation, how excited she was for your family, Mr. Paton, her, I guess she calls -- does she call your – her sister? She referred to as her sister – MR. PATON: Yes. THE COURT: -- and she was going to go see the new baby for the summer. And I told her, don't worry about anything, have a good time. So she already had, at that time, you were your family [sic] or your family was her family. So I just want to let you know that. I don't know if she ever mentioned that to you or not. And maybe you shouldn't tell her that I told you. MS. CRAGGS: Your Honor, I had – THE COURT: But anyway, she was excited about it.

(Appendix G: 13-14, bold emphasis added by Petitioner).

Judge Barbara Gurrola, never officially interviewed the minor child,

and never asked or was otherwise authorized to do so, in court or in

chambers, had more than a single passing conversation, with Natasha

Overcash. Judge Gurrola’ plain, pervasive, and extrajudicial bias (Liteky v.

United States, 510 U.S. 540, 546 [1994]) can be demonstrated by the fact

that Petitioner himself has been judicially forbidden to speak to his daughter

since January of 2013, and Barbara Gurrola was the judge who fixedly

maintained this injunction against parental contact during the summer of

2013 and afterwards.


Attorney Beth Gordon’s Appendix D letter to the Florida Bar,

affirming that “I personally feel that he [Petitioner William Todd Overcash]

could not get a fair trial in front of Judge Gurrola, from what I have seen and

experienced.” William Todd Overcash submits that, although he submitted

both his 2 May 2014 Motion to Recuse and this Petition for Writ of

Prohibition pro se, in propria persona, that Attorney Beth Gordon’s 17

January 2014 Letter to the Florida Bar constitutes an adequate and

sufficient substitute for the required attorney’s certificate of good faith.

IV. NATURE OF RELIEF SOUGHT

Petitioner William Todd Overcash yesterday (10 June 2014) filed his

Petition for a writ of prohibition prohibiting Senior Circuit Judge Gurrola

from sitting as the trial judge in Case Number 2002-4655-DR-FJ.

Because irreparable injury is likely, as soon as Friday 13 June 2014, in

the form of further proceedings and deprivation of Petitioner’s rights to due

process protections of his liberty and property interests, William Todd

Overcash here and now also respectfully moves this Court, on an

emergency basis, to issue an order to show cause, directed to Judge

Barbara Gurrola, why she should not immediately recuse herself and to

cease and desist all proceedings in this case until the Fifth District Court

of Appeals has entered a final ruling on this Petition for Writ of

Prohibition.

At least three further hearings, all relating to criminal contempt, are

set before Judge Gurrola during the next two months, and Petitioner submits

that he reasonably believes he has no chance whatsoever of obtaining a fair

trial, fair hearing, or even a fairly swift and painless hanging (or, more

seriously, a safe incarceration) from this judge. Indeed, Petitioner suffered


actual bodily injury during his brief incarceration in Marion County (per

Judge Singbush, on Shelnutt’s false representations) in December 2013.

V. Argument

Standard of Review (h) Order to Show Cause. If the petition demonstrates a preliminary basis for relief, a departure from the essential requirements of law that will cause material injury for which there is no adequate remedy by appeal, or that review of final administrative action would not provide an adequate remedy, the court may issue an order directing the respondent to show cause, within the time set by the court, why relief should not be granted. In prohibition proceedings such orders shall stay further proceedings in the lower tribunal.

Rule 9.100(h), Florida Rules of Appellate Procedure, 6 March 2014.

Legal Argument

The facts revealed in the transcript of the hearings held on 30 October

2013 (Petition---Appendix G) and 2 April 2014 (Petition---Appendix F),

admitting, confirming, and detailing ex parte communications of a social

nature between Judge Gurrola on the one hand with Lori A. Foultz and her

daughter Natasha Overcash on the other, strikingly parallel the facts of

Frengel v. Frengel, 880 So.2d 763 (Florida 2nd DCA 2004): In this case, the appearance of impartiality was destroyed by the alleged surreptitious nature of the trial facts communications with the children. … the surreptitious nature of the communications together with the conspiratorial tone used by the children in those communications would prompt a reasonably prudent person to fear that the judge was no longer neutral because she had entered into a confidential relationship with the children… Accordingly, we grant the petition and issue the writ of prohibition disqualifying Judge Sierra from further participation in this matter.

Frengel v. Frengel, 880 S.2d at 764-5 (Appendix J).


Another case from 2004 involved ex parte communications initiated

by this same Judge Monica Sierra. In Pearson v. Pearson, the Florida

Second District Court of Appeal quoted the canons of Judicial Conduct: The motion to disqualify states that Judge Sierra had the parties removed from the courtroom during the hearing. She then had the child brought into the courtroom and, after speaking with the child, had Respondent brought into the courtroom as well. Neither the attorneys for the parties nor Petitioner were present during the meeting between Judge Sierra, the child, and Respondent. Judge Sierra's order on the motion for contempt explains that the purpose of the interview with the child was to "determine whether a change of custody was an appropriate sentence/punishment" for contempt, but it offers no insight into the purpose of the ex parte communication with Respondent. The Code of Judicial Conduct in Canon 3(B)(7) states that:

[A] judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. 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." "Nothing is more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant.

Rose v. State, 601 So.2d 1181, 1183 (Fla. 1992). It is because of its effect on the appearance of impartiality that an allegation of an ex parte communication is legally sufficient to require recusal. See, e.g., Robbins v. Robbins, 742 So.2d 395 (Fla. 2d DCA 1999) (holding that an ex parte communication alone is legally sufficient to require recusal); Rollins v. Baker, 683 So.2d 1138, 1139 (Fla. 5th DCA 1996)(holding that the ex parte communications together with certain comments made by the judge were sufficient to require recusal); Brake v. Murphy, 693 So.2d 663 (Fla. 3d DCA 1997) (holding that evidence of ex parte


communication between the judge and the opposing party necessitated recusal). Thus, Petitioner's allegation of an ex parte communication alone adequately established a reasonable basis to fear that she would not receive a fair hearing in subsequent proceedings. That incident taken together with the trial court's expressed desire to "punish" Petitioner with a change of custody that was not sought by Respondent makes an even more compelling basis for a reasonably prudent person to fear that she would not receive a fair hearing. Accordingly, we grant the petition and issue the writ of prohibition disqualifying Judge Sierra from further participation in this matter.

Pearson v. Pearson, 870 So.2d 248, 249-250 (Florida 2nd DCA 2004).

The contrast between Judge Sierra’s conduct in Pearson and Frengel

illustrates how much more serious is the Frengel and present Overcash

pattern of judicial manipulation. In Pearson, at the very least, the Judge’s

contact with the minor child was announced to both parties and their

attorneys in open Court, while in Frengel and Overcash herein (at least with

regard to one party, namely the complainant for recusal) the Judge’s ex parte

communications were completely secret. Further, Judge Sierra at least tried

to justify one of her actions in an order, made part of the record in this case.

In Frengel, it is unclear how Judge Sierra’s conduct was discovered.

In regard to Judge Barbara Gurrola, Petitioner William Todd

Overcash might never have discovered the ex parte communications (or

gifts) between his daughter and the Court had Judge Gurrola not been so

cooperatively garrulous on the record, perhaps imagining that Petitioner

himself would never both to read the transcripts (she elsewhere in the record

opined that Dr. Overcash never read the orders).

So in Petitioner’s present case, it is the judge’s comments herself, on

the record and in (more-or-less) open court (the case is “sealed” but a record


was made available to the Father – albeit efforts seem to have been made to

avoid disclosure), which establish the surreptitious nature of the

communications, when Judge Gurrola stated (on 30 October 2013, Petition

Appendix G: l4, lines 8-14): And I told her, don't worry about anything, have a good time. So she already had, at that time, you were your family or your family was her family. So I just want to let you know that. I don't know if she ever mentioned that to you or not. And maybe you shouldn't tell her that I told you.

Judge Gurrola judicially admitted, 2 April 2014, on the record in

“sealed proceedings” in open court, to receipt of interested-party gifts.

The fundamental principles protecting the judicial process from any

tinge of bias or prejudice was initially stated by the Florida Supreme Court

in Dickenson v. Parks, 104 Florida 577, 140 So. 459 (1932): [p]rejudice of a judge is a delicate question to raise, but when raised as a bar to the trial of a cause, if predicated on grounds with a modicum of reason, the judge against whom raised should be prompt to recuse himself. No Judge under any circumstances is warranted in sitting in the trial of a cause whose neutrality is shadowed or even questioned.

Dickenson, 140 So. 149 at 462.

The Fourth District Court of Appeal echoed this sentiment: The judiciary cannot be too circumspect, neither should it be reluctant to retire from a cause under circumstances that would shake the confidence of the litigants in a fair and impartial adjudication of the issues raised.

Hayslip v. Douglas, supra, 400 So.2d 553, 555 (Florida 4th DCA 1981).


Florida Rule of Judicial Administration 2.330(f) provides that the: Judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action.

“[A] motion for disqualification must be granted if the facts alleged

would prompt a reasonably prudent person to fear that he could not get a fair

and impartial trial from the judge.” Nunez v. Backman, 645 So.2d 1063,

1064 (Florida 4th DCA 1994); see also Valdes-Fauli v. Valdes-Fauli, 903

So.2d 214, 216-217 (Florida 3rd DCA 2005).

In the present case, William Todd Overcash relies on Judge Barbara

Gurrola’s pronouncements from the bench, in open court, plainly and

unambiguously admitting that she (a) engaged in extensive ex parte and

entirely extra-judicial, social, communications concerning the subject

matter of litigation with litigant Lori A. Foultz and the minor child Natasha

Overcash/Foultz, and received and accepted and “loved” at least one gift

from the minor child. No question of the truth of the factual allegations

underlying the Motion of 2 May 2014 and the present Petition for Writ of

Prohibition can exist or doubt be raised.

All allegations of ex parte communications with parties and counsel

and gift-receiving are documented by official court transcripts.

It is thus beyond reasonable doubt that, “the facts alleged….would

cause the movant to have a well-founded fear that he … will not receive a

fair trial at the hands of that judge”. Parker, 3 So.3d at 982.

Petitioner is entitled not merely to a Writ of Prohibition, but to the

issuance, on an emergency basis, of an immediate Order to Show Cause to


divest this Court of jurisdiction prior to infliction of any further irreparable

injury on the life, liberty, or property interests of William Todd Overcash.

Generally, a statement by the judge that he feels a party has lied in a

case indicates bias against the party. See Brown v. St. George Island, Ltd.,

561 So.2d 253, 257 (Florida 1990); Campbell Soup Co. v. Roberts, 676

So.2d 435, 436 (Florida 2nd DCA 1995): Deauville Realty Co. v. Tobin, 120

So.2d 198, 202 (Florida 2nd DCA 1960); and Tallahassee Memorial

Healthcare, Inc., v. Alexander, 51 So.3d 644, 645 (Florida 3rd DCA 2011).

The best way to illustrate the application of these analytical principles

to the present case is to quote from the 2 April 2014 transcript, wherein

Judge Gurrola states, starting at the bottom, line 24 of page 5: THE COURT: Evidently the doctor has had surgery so--- MR. SHELNUTT: So he says. THE COURT: I understand what you are saying. First of all, there is a motion to strike the former husband’s motion for continuance filed by letter from nonlawyer. MR. SHELNUTT: We filed that, Your Honor, because she’s filed something on his behalf. She’s not a member of the Bar. It wasn’t signed by Dr. Overcash. He certainly could have done it himself. But I’d like to be heard at some point on this issue of the alleged surgery, if you need. We have a lot more information that, perhaps, would assist the Court.

* * * * (Appendix F at 7, line 1) THE COURT: The 28th of March, all right. And I note that in – Dr. Overcash did sign some of these other things and then he proceeds to say that he’s on Class II medications, whatever those might be. And then he proceeds to certify and under penalty of perjury – you know, before you even start, my


thought is this, Mr. Shelnutt. My thought is that this is indirect criminal contempt, correct? MR. SHELNUTT: Correct. THE COURT: I am going to – and you can respond, but I am considering requesting that the state attorney prosecute this. MR. SHELNUTT: Okay. I mean, you can certainly – you have the power to do that. THE COURT: I don’t know whether he will agree to do so, but I’m thinking that that – and if that’s the case, then we – I preside over it and –

* * * * (Appendix F at 8, line 19) MR. SHELNUTT: Well, let me just give you a for instance, if I could, Your Honor. THE COURT: Yes, sir. MR. SHELNUTT: Thursday afternoon, before this alleged surgery on Friday, at 4:30 in the afternoon, and Ms. Guthrie was sitting in my office, he had called me earlier in the day. Would you like to place me under oath? THE COURT: Yes sir. MR. SHELNUTT: Because I guess I’m testifying.

* * * * (Appendix F at 11, line 5) THE COURT: I’ll be honest. When I first saw the letter that the friend or whatever, Ms. Tolly I guess it was – MR. SHELNUTT: Torrey, Ms. Torrey. THE COURT: Torrey, okay. I mean, all I could think of was plain old – you know, I take my grandsons to the orthodontist and the dentist. You know, just a note from the doctor. I mean, that wasn’t there.

* * * * (Appendix F at 13, line 12) MR. SHELNUTT: And he has blown us all off. I mean –


THE COURT: Yes he has. I have to honestly say to you that this is – this morning that this is – and perhaps I should have done this a long time ago. I want to investigate the possibility of requesting the state attorney to prosecute the indirect criminal contempt.

* * * * (Appendix F at 14: line 7) THE COURT: But I would give him the time that – I don’t know – I’m not knowledgeable about drugs, but if he’s taking Class II Medications – MR. SHELNUTT: What evidence is there before the Court that he is, that’s my point. There’s nothing before the Court. THE COURT: Well, he certified and declared under penalty of perjury, but that’s – I know what you’re saying. Okay. I understand.

Petition Appendix F: 2 April 2014, at pages noted, bold emphasis added.

The remainder of the colloquy between Mr. Shelnutt and the Court

speaks for itself in the manner of res ipsa loquitur. Counsel Mark D.

Shelnutt, for Lori A. Foultz, and Judge Barbara Gurrola have, in essence,

decided on a plan to “indict” and try Petitioner William Todd Overcash for

indirect criminal contempt of Court. Judge Barbara Gurrola clearly

expresses more than reservations about the truthfulness of Petitioner William

Todd Overcash’s sworn statements. At the beginning of the passages quoted:

“I understand what you are saying” and at the end, “I know what you’re

saying. Okay. I understand.”

Judge Barbara Gurrola at one points appears on the point of saying

something like, “then we – I preside over it and--” we’ll finally put him

behind bars. That is the clear implication of the discussion above.

The discussion abstracted above and reproduced in full in Petition

Appendix F goes way beyond merely speaking with bias or prejudice against


a litigant: the Judge and Attorney are planning a prosecution for indirect

criminal contempt and they are doing so ON THE RECORD. In Campbell

Soup Co., supra, 676 So.2d at 435, the Second District Court of Appeal

found that a single statement by the trial judge expressing doubt as to the

reliability of Petitioner’s affidavit warranted removal of the trial judge.

The situation here is closer to that in Owens-Corning Fiberglas Corp.

v. Parsons, 644 So.2d 340, 341 (Florida 1st DCA 1994), wherein the District

Court disqualified the Circuit Judge because of the judge’s bias against the

defendant. The trial court in that case also expressed that the defendant’s

credibility with the court is “about as thin as a balloon.” Id.

While Judge Gurrola and Mark D. Shelnutt made no comment more

dramatic than agreeing “he has blown us all off…” “Yes, he has”, in spite

of Petitioner’s sworn statements admittedly submitted to the Court and made

matters of record, it is too plain that the clear “understanding” between

Gurrola and Shelnutt is that Petitioner is a liar who is willing to perjure

himself under oath. Gurrola and Shelnutt reach this “understanding” with

nothing more than Attorney Shelnutt’s voluntarily offered “testimony”

(offered “as a for instance” out of the blue) about conduct admittedly and

obviously referring to other matters on another (albeit not so distant) day as

the basis for such impeachment of Petitioner’s candor, character-for-

truthfulness, honesty on this occasion, and his general honor.

The Florida Supreme Court has clearly held that a statement by the

judge indicating that a party has lied under oath in a case generally indicates

bias against the party. Brown v. St. George’s Island, Ltd., supra, at 257.

Judge Gurrola, in the 2 April 2014 transcript offered and shared her private,

unstated “understandings” with Mark D. Shelnutt concerning William Todd


Overcash’s candor and character. Far beyond anything in Brown or Owens-

Corning Fiberglas Corp. or Campbell Soup Co., Judge Barbara Gurrola has

shown overweening, pervasive, and entirely unwarranted bias against the

Petitioner in her “cooperative understandings” and harsh plans for

prosecution with Lori A. Foultz’ attorney. See, Liteky v. United States, 510

U.S. 540, 546 (1994).

“When the judge enters into proceedings and becomes a participant, a

shadow is cast upon judicial neutrality so that disqualification is required.”

Chastine v. Broome, 629 So.2d 293, 295 (Florida 4th DCA 1993). That is

precisely what Judge Barbara Gurrola did in her above-quoted colloquy with

Shelnutt (on the record) on 2 April 2014. Additionally, the trial judge serves

as the neutral arbiter in the proceedings and as such may not and must not

enter the fray by giving “tips” to either side. Id. William Todd Overcash

submits that Judge Gurrola has gone far past merely giving “tips” to Lori A.

Foultz’ attorney, in making plans to charge or prosecute (and implicitly,

automatically convict) William Todd Overcash of indirect criminal contempt

for swearing under oath to have had surgery on a certain date.

The trial judge’s words or actions “should not lean to the prosecution

or defense lest it appear that his neutrality is departing from the center.”

Riddle v. State, 755 So.2d 771, 773 (Florida 4th DCA 2000)(Citing Williams

v. State, 143 So.2d 484, 488 (Florida 1962). This duty of neutrality does not

just extend to or cover judicial conduct while a judge speaks in the presence

of a jury at trial. The trial court can commit error requiring disqualification

outside the presence of the jury by taking actions that obviously favor one

side or the other. J.L.D. v. State, 4 So.3d 24, 26 (Florida 2nd DCA 2009). In

Lyles v. State, 742 So.2d 842 (Florida 2nd DCA 1999) the District Court of


Appeal held that the judge in a probation revocation hearing committed

fundamental error where he “gave the appearance of partiality by taking sua

sponte actions which benefitted the State.” Judge Gurrola sua sponte took

the initiative of suggesting the appointment of a state attorney to prosecute

Petitioner William Todd Overcash in the absence of any direct or even

circumstantial evidence than he had lied, beyond the mere suspicion

articulated by an obviously interested party’s obviously vengeful attorney.

Judge Gurrola’s suggestions that she saw probable cause to charge

William Todd Overcash with indirect criminal contempt were fully

tantamount to directing Shelnutt in the exact ways and means his

prosecution of Lori A. Foultz’ case. Shelnutt was clearly quite pleased to

follow Judge Gurrola’s suggestions, while even the Petitioner’s non-attorney

friends had been banished from the Courtroom, lest they hear or say

anything inconsistent with the Court’s (and Shelnutt’s) purposes.

William Todd Overcash would be naïve indeed if he did not suspect,

if he were not by this time convinced, beyond all reasonable doubt, that he

cannot get a fair trial on charges of contempt or any other subject from this

trial court. William Todd Overcash certainly may reasonably think that

there may be a prejudged decision of his guilt, and to fear that the trial court

is, at the very least, suggesting to the State (as well as to Lori A. Foultz and

Mark D. Shelnutt) that it would please the court for Petitioner to be

prosecuted and jailed for contempt, over the trial of which charges Judge

Barbara Gurrola clearly expects to preside as a matter of routine course.

While a judge may form mental impressions and opinions during the

course of hearing evidence, he or she may not prejudge the case. Barnett v.

Barnett, 727 So.2d 311, 312 (Florida 2nd DCA 1999). But in the instant


case, this concept has applied where the court indicated pre-judgment in a

case, in matters that were not yet before the court, and could not and would

not be but for the “understanding” shared by Judge Barbara Gurrola with

Attorney Mark D. Shelnutt. Compare Zangi v State, 61 So.3d 1263, 1264

(Florida 4th DCA 2011).

In Zanghi, another marital dissolution case, the trial judge was

disqualified precisely for the reasons suggested here, namely that the judge

made comments that created a well-grounded fear in the petitioner that the

court pre-judged the merits of an indirect criminal contempt case that was

not yet before the judge. The Florida Fourth District Court of Appeal held

as follows: As for legal sufficiency, “[w]hile a trial judge may form mental impressions and opinions during the course of hearing evidence in a case, the judge is not permitted to pre-judge the case.” Kates v. Seidenman, 881 So.2d 56, 58 (Florida 4th DCA 2004)(citations omitted). Here, the circuit judge’s comments in the marital dissolution case, effectively stating that the husband should be convicted in the indirect criminal contempt case, were made before the indirect criminal contempt case was transferred to the judge and go beyond mere impressions and opinions. Instead, the comments created a well-grounded fear of having pre-judged the merits of the indirect criminal contempt case. See Wargo v. Wargo, 669 So.2d 1123, 1124 (Florida 4th DCA 1996)(“[A] party seeking to disqualify a judge need only show “a well-grounded fear that he will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling residents in the affiant’s mind and the basis for such feeling.’”

Zanghi, 61 So.3d at 1264.

Of course, the parallels between the situation in Zanghi and the

situation faced by Petitioner William Todd Overcash are overwhelming. Of


particular relevance in the present case is the legitimacy of William Todd

Overcash’s belief that the trial judge has prejudged his guilty regarding the

alleged (allegations made and seconded by the trial judge) indirect contempt

of court or even perjury. Also of grave concern to the Petitioner herein is

that neither Judge Gurrola nor Attorney Shelnutt had even a scintilla of

direct or indirect evidence to justify the trial court’s bold conclusions and

understandings that “he has blown us all off…” “yes he has” and “that this is

indirect criminal contempt, correct?”

The trial court has thus made sweeping generalizations about William

Todd Overcash based on limited (or non-existent) information and

disregarded the evidence (William Todd Overcash’s sworn statements) that

contradicts those conclusions. Seemingly, the trial court believes all of

Petitioner’s actions to be disingenuous, self-serving manipulations as well.

And the trial court’s belief and nearly universal realm of “understandings”

with Attorney Mark D. Shelnutt are further confirmed by the substance of

the colloquy (also in William Todd Overcash’s absence, which on this

occasion Judge Gurrola and Attorney Shelnutt entirely approved and

welcomed) from the hearing on 30 October 2013 (Petition--Appendix G).

SUMMARY OF ARGUMENT

The Court, Judge Barbara Gurrola, has (largely, if not entirely,

extrajudicially) formed a pervasively negative opinion of Petitioner William

Todd Overcash. Regarding pervasive and extrajudicial bias see, for

example, Liteky v. United States, 510 U.S. 540, 546 (1994).

The Court has effectively become involved in the case as a party, and

has agreed and planned (with Respondent’s Attorney Mark D. Shelnutt) to

initiate a new prosecution of Petitioner for Indirect Contempt based (in


whole or in part) on Petitioner’s non-appearance on 2 April 2014, deeming

Petitioner’s sworn statements unworthy of belief regardless of his

presentation or the corroborating evidence that would support his testimony.

Judge Barbara Gurrola is entitled to her personal opinion, but she must be

disqualified as a Judge.

EMERGENCY MOTION & REQUEST FOR

ORDER TO SHOW CAUSE

Petitioner William Todd Overcash moves and requests, pursuant Rule

9.100(h) of the Florida Rules of Appellate Procedure, that this Court enter an

Order to Show Cause to divest Judge Gurrola of trial court jurisdiction

immediately. Inphynet Contracting Services v. Soria, 37 So.3d 299

(Florida 4th DCA 2010); Plavnicky v. Deluicia, 954 So.2d 1178 (Florida 4th

DCA 2007); Leslie v. Leslie, 840 So.2d 1097 (Florida 4th DCA 2003);

Brinson v. State, 789 So.2d 1125 (Florida 2nd DCA 2001); Harrell v. State,

721 So.2d 1185 (Florida 5th DCA 1998).

THE PURPOSE OF THE ORDER TO SHOW CAUSE IS TO

ENCOURAGE VOLUNTARY RECUSAL BY THE CIRCUIT JUDGE and

to prevent further irreparable injury by denial of due process of law.

Petitioner files the petition for writ of prohibition to disqualify the

Judge from further proceedings in this case. Because the trial judge made

statements, on the record, (1) admitting to extensive ex parte

communications with litigant Lori A. Foultz and even to surreptitious

contact with the minor child Natasha Overcash/Foultz, in addition to (2)

making comments on the record which clearly indicated she would not give

credit to petitioner’s testimony or case, petitioner’s motion to disqualify is

legally sufficient and ought to be granted.


However, hearings are currently set before Judge Barbara Gurrola for

Friday 13 June 2014, 19 June 2014, and another on the planned Indirect

Criminal Contempt prosecution for 18 July 2014. Petitioner William Todd

Overcash reasonably fears irreparable injury in the form of denial of due

process owing to a pre-judged decision, agreed to and “set up” by Judge

Barbara Gurrola and Attorney Mark D. Shelnutt on to convict him of various

forms of criminal contempt and deny him his right to chose his form of

representation (pro se or through counsel).

The cases cited above and throughout this Petition make clear that

prohibition is a preventive measure designed to protect a petitioner from

incurring irreparable damage should an inferior court continue with the

proceedings. See Sparkman v. McClure, 498 So. 2d 892, 896 (Fla. 1986);

English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977) (a writ of prohibition

will immediately issue when damage is likely to follow the inferior’s court

actions).

William Todd Overcash is entitled to seek this emergency relief (in

the form of an immediate Order to Show Cause) under his Petition for Writ

of Prohibition because he has no adequate remedy at law should Senior

Judge Barbara Gurrola be permitted to hear his case. In light of Judge

Gurrola’s statements examined above, made on the record in open Court,

and in light of Petitioner William Todd Overcash’s sworn statements that he

is in (objectively reasonable) fear that he will not obtain a fair hearing, to

permit any further prosecutions of contempt in this case to proceed without

intervention at this stage would be inefficient, not to mention a violation of

due process. The Florida Supreme Court has, with substantial publicity,

ordered “reform” within the Fifth Judicial Circuit (Petition--Appendix K).


Emergency relief is warranted here. If Petitioner William Todd

Overcash were to wait until the conclusion of the litigation below in Circuit

Court before raising this issue, or even before this Fifth District Court of

Appeal renders its mandate, a set of contempt charges against him would be

litigated in a court which does not meet due process requirements, see

Marshall v. Jerrico, 446 U.S. 238, 242 (1980).

Judge Gurrola, as is apparent from the 2 April 2014 hearing

transcripts, has agreed and cooperated with Lori A. Foultz’ attorney Mark D.

Shelnutt to plan and implement further charges of criminal contempt against

William Todd Overcash. A judge cannot be both a complaining witness,

collaborating prosecuting attorney, and impartial neutral arbiter of the

proceedings which she helped initiate. For all of the above-and-foregoing

reasons, Petitioner moves and requests grant this Emergency Order to Show

Cause issue to Judge Barbara Gurrola.

CONCLUSIONS

Judge Barbara Gurrola, as a matter of record, has agreed and

expressed “understandings” with Attorney Mark D. Shelnutt, to remarks and

inferences disparaging William Todd Overcash’s character for truthfulness,

his honesty on specific occasions, and his honor generally. Judge Gurrola

has further directly injected herself into the proceedings, as a party

collaborating with Attorney Mark D. Shelnutt, advocating for William Todd

Overcash to be prosecuted for additional crimes, offering personal opinions

(or again, agreeing by her private but unexplained “understanding” Mark

Shelnutt’s comments) concerning Petitioner’s sworn evidence, offered under

penalty of perjury, in this case.


All of this evidence of trespassing judicial boundaries in regards to the

prosecution of contempt cases is cumulative, additional to and beyond, the

facts, again admitted as a matter of record, that Judge Gurrola has engaged

in surreptitious, secret conversations with the minor child Natasha, daughter

of litigants Lori A. Foultz and William Todd Overcash. The same

transcripts document that Judge Gurrola has given this child advice and

counseling as well as encouragement, accepted and “loved” this child’s gifts,

and encouraged the family to celebrate and have a party (which Judge

Gurrola appears from her comments to have attended, even though Foultz’

attorney Mark D. Shelnutt did not) to commemorate her father’s (the

Petitioner’s) allegedly “voluntary” (actually, financially, judicially coerced)

relinquishment of his natural parental rights and her adoption by her

mother’s current husband.

PRAYER FOR RELIEF

WHEREFORE, Petitioner William Todd Overcash asks that this

Court affirmatively to recognize that it is more than reasonable for him to

have lost faith in the objectivity of the trial court, and has a reasonable, well-

founded, in fact abundantly well-documented, fear that he will not receive a

fair trial at the hands of Judge Barbara Gurrola. Livingston v. State, 441

So.2d 1083, 1086 (Florida 1983).

It is important to acknowledge and affirm that Petitioner’s fear in this

case is in fact entirely reasonable, that the test for judicial qualification is

whether a reasonable man would be in fear under these circumstances, and

that it is possible, in light of the ex parte communications and gift-giving

and receiving documented above, that any and all men would be in fear.


Such universality or unanimity of reaction is not required to mandate judicial

recusal, but it may be present in this state. Compare Rucks v. State, 692

So.2d 976, 977 (Florida 2nd DCA 1997).

Whether the trial judge’s remarks might or definitely would place a

reasonable person in fear of prejudice, Petitioner William Todd Overcash’s

Motion for Disqualification was and is legally sufficient in that he has stated

grounds, including the trial court’s pre-judging Petitioner’s credibility and

character, her suggestion of prosecution for other offenses, and her general

departure from neutral arbiter to an active participant in this case.

Accordingly, this Court should grant Petitioner’s Emergency

Motion for Order to Show Cause, necessary immediately to divest Judge

Barbara Gurrola of jurisdiction, to prevent further irreparable injury which is

likely if not certain to be inflicted at the hearings scheduled over the next six

weeks in this case, and then to grant his formal Writ of Prohibition,

disqualifying Barbara Gurrola from any further participation in this case.

Respectfully submitted on this Thursday, 12 June 2014,

_________________________________________ William Todd Overcash, Petitioner, pro se 14311 SE 128th Street Oklawaha, Florida 32179 Telephone: 352-812-8812


CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above-and-

foregoing Emergency Motion for Order to Show Cause has been served by

hand delivery and U.S. mail with certified receipt requested on the following

individuals as parties and interested officers:

Counsel for Respondent Lori A. Foultz Mark D. Shelnutt, PA 1404 East Silver Springs Blvd. Ocala, Florida 34470-6820 Judge Presiding whose disqualification is sought: The Honorable Barbara Gurrola Senior Circuit Court Judge Post Office Box 1030 Ocala, Florida 34478 Also Judge David B. Eddy Administrative Judge for Marion County Marion County Judicial Center 110 N.W. 1st Avenue Ocala, Florida 34475 And Judge S. Sue Robbins Administrative Judge, Unified Family Court Division Marion County Judicial Center 110 N.W. 1st Avenue Ocala, FL 34475 And The Florida Fifth District Court of Appeal 300 South Beach Street Daytona Beach, Florida 32114 ___________________________________________ William Todd Overcash, Petitioner, pro se

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