Disqualifying the Court

My name is Mark Stephen Burke, my date of birth is June 20, 1967, and my address is 46 Kingwood Greens Dr., Kingwood, TX, 77339. I am the Plaintiff as named in the foregoing instrument. I have read the Motion to which this Declaration is attached, and the recitations of facts stated therein that are not stated upon information and belief are true and correct.

Furthermore, I hereby declare under penalty of perjury that the following is true and correct to the best of my knowledge and belief in support of the attached motion to disqualify Judge Reeder:

I am a party in the above-captioned case.

On March 16, 2023, I noticed two ORDERS appear onto the court docket in the afternoon, and which were not present on the docket on March 15, 2023, nor when I checked during the morning of the 16th.

First, ORD SGND DENYING EXTENDING DISCOVERY DEADLINE, Image No. 107106189, signed and dated March 15, 2023 and incorrectly added to the docket backdated to March 15, 2023 when it was actually docketed on March 16, 2023.

Second, ORD SGN GRNTNG PROTECTION FROM DISCOVERY REQUEST / ORDER SIGNED QUASHING SUBPOENA Image No. 107105961, signed and dated March 15, 2023 and incorrectly added to the docket backdated to March 15, 2023 when it was actually docketed on March 16, 2023.

As stated, these orders were signed and dated March 15 and added to the online docket showing the same date. However, as per my given word herein  and under the penalty of perjury, these two Orders have been backdated on the docket (See screenshot below. Click image to enlarge).

I hold the opinion this was an intentional act to harm me and the judiciary in Texas endorses my claim.

See; Public Reprimand for Hon. Denise V. Pratt, former Judge, 311th Judicial District Court, Houston, Harris County, Texas before the State Commission on Judicial Conduct;

(“Starting in October 2013, the Commission began receiving complaints filed by attorneys, litigants, and confidential sources alleging numerous incidents of misconduct against Judge Pratt, including malfeasance by backdating court orders and judgments (emphasis added), excessive and unreasonable delays in issuing decisions, a lack of diligence in attending to the business of the court, and incompetence in performing the duties of office”),

http://www.scjc.texas.gov/media/787/pratt-denise-v-cjc-nos-14-0102-di-et-al-public-reprimand-wwebsite.pdf, last visited March 17, 2023.

Furthermore, the intent to harm is a calculated act. By back-dating the time the order was released onto the docket, this effectively reduces the time I have to respond to the court ORDERS, particularly in this critically time-sensitive period of filings.

Indeed, this declaration is being filed as part of an “all-nighter” to ensure that it can be filed expeditiously with this court (not to be confused with a St. Patrick’s Day “all-nighter”).

In relation to the First Order, the denial of an extension of time by one business day and which was beyond the control of myself, and the Second Order, Quashing the Court Reporters required attendance as a witness at the upcoming sanctions hearing by Judge Lauren Reeder’s proves irrefutable bias and prejudice against me, including but not limited to;

(a) My constitutional and due process right(s) have been violated by Judge Reeder – because my case will be slated for dismissal prior to the hearing on the erroneous and repetitive argument by defendant(s) that I will have failed to provide a medical liability expert report within the allowed 120 days (which is due by today, Friday, March 17, 2023);

(b) This will trigger and unconscionable dismissal of my civil action, and/or relevant and material parts of my civil action, with prejudice, along with mandatory attorney fees under the false premise it is a medical liability claim, and without being able to be heard on my arguments, including examination of the all-important witnesses;

(c) I maintain this is premeditated and targeted abuse by the Judge and the court, relying in part upon my limited legal understanding based on being a pro se, non-prisoner litigant – in this my first civil action in Harris County District Court – for example, intentionally reducing my time to prepare and respond to Orders such as those discussed here;

(d) I agreed with opposing counsel two dates for the upcoming sanctions  hearing, either March 13 or March 20, 2023, and the proposed dates were presented to the court who selected the later date, and as such was (i) beyond the control of the Plaintiff , and; (ii) required filing of the Motion for an Extension of time (EXTENDING DISCOVERY DEADLINE).

The judicial bias by Judge Reeder is compounded by the fact I submitted a timely request by the now denied motion to extend the deadline by one business day until the scheduled sanctions hearing on Monday, March 20, 2023 for the reasons explained in the motion and related pleadings.

Judge Reeder’s inexcusable abuse of power by her ORDER denying me this one business day extension due to a hearing date that was beyond my control and decided by the court mandates disqualification on its own.

(e) The back-dating on the docket these orders as discussed above;

(f) The court intentionally turning off my e-serve notices at court level and denying they did so, contrary to the investigation and claims made by Tyler Technology support at efiletexas.gov, (See screenshot below. Click image to enlarge);

and as discussed directly in email communications with this court and clerk Ms. North, (See screenshot below. Click image to enlarge);

(g)  Holding the January 9, 2023 hearing when it should have been abated in law;

(h) Holding the January 9, 2023 in-person hearing, and then continuing after the court reporter ceased recording – which is determined in law as ex parte communications with opposing counsel without me present – and then preventing me from examining the court reporter by quashing the subpoena, including her attendance and for other reasons as provided in my response to the motion to quash and for protective order;

(i) Allowing Serpe Andrews, PLLC (“HCA Lawyers”) to substitute appointed counsel Nicole Andrews with Ben[jamin] Hamel without notice and despite my objections.

(j) HCA Lawyers have maintained a baseless counterclaim (with the now denied applications for injunctive relief and which was the subject of the January 9, 2023 in-person hearing).

This is malicious, and a further calculated and orchestrated scheme of sequential retaliation. In this instance, I am effectively prevented from non-suiting this civil action without prejudice, if I elected to do so.

See; Bain v. Capital Senior Living Corp., No. 05-14-00255-CV, at *8 (Tex. App. June 30, 2015) (“Section 74.351(b) states that a trial court “shall” award reasonable attorney’s fees and costs of court incurred by a health care provider when a health care liability claim is dismissed with prejudice and the defendant requests fees and costs. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b). Statutes providing that a court “shall” award attorney’s fees are not discretionary.”).

However, this counterclaim is both willfully malicious and frivolous at the same time, as there are zero affirmative claims remaining.

See; Thumann v. Cooper Land Co., 405 S.W.2d 791, 793 (Tex. Civ. App. 1966) (“In this case the defendant’s pleading is defensive only…. The court did not err in granting plaintiff’s motion and dismissing plaintiff’s case without prejudice.”).

(k) Judge Lauren Reeder did not respond to initial Findings of Fact and Conclusion of Law request and I had to submit a timely and formal reminder at further expense and unnecessary time, which she would deny, depriving me of her reasoning.

(l) Many other reasons as to the misconduct of the opposing parties, counsel and witnesses, which were due to be examined at the sanctions hearing, now diluted and/or terminated by this court’s unconscionable ORDERS and lawlessness.

CONCLUSION

Based on my statements, I believe that Judge Lauren Reeder was mandated to self-recuse. I have intimated as much in prior pleadings and in the hopes as a Harvard graduate, married into the law, she would comply without the need to file this motion.

Sadly, for myself and other citizens of the State of Texas who wish to have a fair and impartial judge in this court, this has certainly proven to be impossible in my case, and where Judge Lauren Reeder has elected to violate the rules and laws by not self-recusing, and hence commands my formal request to disqualify Judge Reeder.

See; Bettwieser v. Jeffery, No. 05-18-01266-CV, at *8 (Tex. App. Aug. 3, 2020)

(“The method for seeking the disqualification or recusal of a judge in any trial court other than a statutory probate court or justice court is set out in Texas Rule of Civil Procedure 18a. The permissible grounds for either disqualification or recusal of a judge are contained in Texas Rule of Civil Procedure 18b”).

Judge Reeder, by her own actions is now a [hostile] witness to these proceedings, (See; TRCP, 18b.) and a judge who holds a personal bias and/or prejudice against me, one which will prevent me from receiving a fair trial in this case. As such, disqualification is mandatory.

I have not previously filed a motion to disqualify Judge Lauren Reeder in this case. The motion with this declaration in support should be GRANTED.

RESPECTFULLY submitted this 17th day of March, 2023.

I declare under penalty of perjury that the foregoing is true and correct. This declaration under Chapter 132, Civil Practice and Remedies Code.

During the mid-afternoon of March 16, 2023, Plaintiff noticed movement on the online docket in the above styled case, namely two ORDERS were released by the court onto the docket.

First, ORD SGND DENYING EXTENDING DISCOVERY DEADLINE, Image No. 107106189, signed and dated March 15, 2023 and incorrectly added to the docket backdated to March 15, 2023 when it was actually docketed on March 16, 2023.

Second, ORD SGN GRNTNG PROTECTION FROM DISCOVERY REQUEST / ORDER SIGNED QUASHING SUBPOENA Image No. 107105961, signed and dated March 15, 2023 and incorrectly added to the docket backdated to March 15, 2023 when it was actually docketed on March 16, 2023.

BACKGROUND

Plaintiff sought Ms Thieme’s testimony at the upcoming hearing on March 20, 2023 as she was the attending court reporter for the January 9m, 2023 hearing.  Plaintiff contacted Ms Thieme to obtain a copy of the transcript of that hearing. Plaintiff paid Ms Thieme her private fee for the report (consideration) and timely received the report in response to the contract consummated by email.

As discussed in prior pleadings and responses, Plaintiff seeks to question Ms. Thieme, to reaffirm her email responses confirming there was ex-parte conversations held between counsel and the Judge at the end of the hearing, to which Plaintiff was not a party as he did not attend and as noticed to the court. Plaintiff will question her about that incident.

See; EXHIBIT “EMAIL THREAD BETWEEN MARK BURKE AND NORMA DUARTE, COURT REPORTER, DATED JAN 17, 2023”, incorrectly labeled on the docket as EXHIBIT H, image no. 106462258, Feb 9, 2023.

Despite the nature and content of these filings by Plaintiff, Judge Lauren Reeder has elected not to self-recuse, but rather she has retaliated. This behavior is both unethical and unconstitutional and she has to be disqualified for the reasons provided herein.

 ARGUMENT AND AUTHORITIES

CONSTITUTIONAL GROUNDS FOR DISQUALIFICATION

Judges may be removed from a particular case either because they are constitutionally disqualified, TEX. CONST. art. V, § 11 or because they are recused under rules promulgated by the Texas Supreme Court. TEX.R. CIV. P. 18b.

If a judge is disqualified under the Constitution or subject to disqualification under Texas Government Code § 74.053(d), she is absolutely without jurisdiction in the case, and any order or judgment rendered by her is void, without effect, and subject to collateral attack.

In re Union Pacific Resources Co.; Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d 556, 559 (Tex. App.—Beaumont 1993, writ denied) (citing Disqualification and Recusal of Judges, 17 ST. MARY’S L. J at 601–02).

The Texas Constitution disqualifies a trial judge from sitting “in any case wherein he may be interested.” TEX. CONST. art. V, § 11.

Any  ex-parte contact in seeking relief for Defendants at their direction is grounds for disqualification. A judge cannot direct the actions and guide the litigation strategy of any party to a lawsuit she is then going to adjudicate.

Judge Reeder engaged in ex parte communications with Defendants, and in fact held an entire ex parte hearing despite the objection of Plaintiff, outside the presence of Plaintiff,

Further, as discussed above, the Court’s website has been altered to the prejudice of Plaintiff, and this creates an interest in the subject matter, and renders the Court and its staff to be witnesses should the case go forward in its present stance.

Pursuant to the Judicial Canon 3(C):

“A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including, but not limited to, instances where:

“(a) S/He has personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

“(b) S/He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

“(c) S/He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or is a party to the proceedings, or any other interest that could be substantially affected by the outcome of the proceeding.”

Canon 3B(8) of the Texas Code of Judicial Conduct prohibits ex parte communications by a judge pursuant to the judge’s obligation to provide “every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.”

The fact of ex parte communications can support a reasonable questioning of a judge’s impartiality.

See, e.g. Duffey v. State, 2014 WL 685560 (Tex. App.—Texarkana 2014, no pet.), which was reversed and remanded when trial judge listened, without comment, to concerns of townspeople in brief meeting with judge following news report of plea agreement;

Abdygapparova v. State, 243 S.W.3d 191, 210 (Tex. App.—San Antonio 2007, pet. ref’d) (“The trial judge’s ex parte communications with the prosecutor suggest there was, at a minimum, a ‘chumminess’ between the prosecutor and the trial court from which the jury could interpret that the trial court was ‘taking sides.’”).

Plaintiff also bring this motion to disqualify Judge Lauren Reeder under Article V, Section 11, of the Constitution of Texas which is referred to by Texas courts as “constitutional disqualification” motions.

Article V, Section 11, is broader than the United States Constitution and disqualifies judges where the judge has any interest in the case.

Our Constitution provides, Section 11, Art. 5, Vernon’s Ann. St., ‘No judge shall sit in any case wherein [s]he may be interested.’

Judge Lauren Reeder is a witness and must be disqualified, given the reasons provided herein and in Plaintiff’s verified declaration.

Due process requires a neutral and detached hearing body or officer. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

The Texas Constitution requires no less. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App.2006).

The ex-parte communications were not simply “[e]xpressions of impatience, dissatisfaction, annoyance, and even anger” toward Plaintiff or their counsel.

See Abdygapparova v. State of Texas, 243 S.W.3d 191 (Ct.App.—San Antonio 2007, writ refused). Liteky, 510 U.S. at 555, 114 S.Ct. 1147.

To the contrary, these comments were examples, inter alia, of the trial court conducting an ex parte hearing excluding Plaintiff. As such, they extended beyond the realm of courtroom administration and etiquette, for which the trial court has control, and became strong evidence of bias and partiality. As other courts have held, in such a case the Judge must be disqualified.

The United States Supreme Court has repeatedly held that a violation of the right to an impartial judge is a structural error that defies harm analysis.

Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Chapman v. California, 386 U.S. 18, 23 & n. 8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); see also Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997) (acknowledging structural errors recognized by Arizona).

The “presence on the bench of a judge who is not impartial” deprives a litigant basic protections and infects the entire trial process from beginning to end.

Arizona, 499 U.S. at 309–10, 111 S.Ct. 1246; see also Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

In Texas, a judge may also be removed from presiding over a cause of action for the following reasons:

(1) S/he is disqualified under Article V, Section 11, of the Constitution of Texas;

(2) Her/his conduct violates Due Process;

(3) S/he is disqualified under Rule 18 of the Texas Rules of Civil Procedure.

Judge Lauren Reeder must be disqualified from this case.

In the Texas adversarial system, the judge is a neutral arbiter between the advocates; she is the instructor in the law to the jury, but she is not involved in the fray.

The advocates have the task of producing the evidence, arguing its significance, and pointing out the logical inferences that flow from that evidence.

“The adversary theory … maintains that the devotion of the participants, judge, juror and advocate, each to a single function, leads to the fairest and most efficient resolution of the dispute.”  Rule 18a Disqualification.

Plaintiff also incorporates by reference the above facts and move to disqualify Judge Reeder under Rule 18b(a) of the Texas Rules of Civil Procedure.

Similarly, Texas Rule of Civil Procedure 18b(1)(b) requires a judge to disqualify herself from any case in which he may have “an interest in the subject matter in controversy.”

There is no time set within which a disqualification motion must be filed, and this issue can be raised for the first time on appeal or collateral attack. See Williams v. State, 492 S.W.2d 522, 524 (Tex. Crim. App. 1973).

Judicial Canon 3(B)(5) states, “A judge shall perform judicial duties without bias or prejudice.”

Canon 3(B)(8) states, in part, “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.”

Similarly, Article I, Section 10, of the Constitution of Texas affords a defendant the right to be heard.

Under the Fifth Amendment to the United States Constitution (Due Process) and/or Article I, Section 19, of the Constitution of Texas (due course of law), the above constitutes grounds for disqualification of Judge Lauren Reeder:

(1)  where a judge has an interest in the case, or;

(2)  where a judge acted as a “one [wo]man grand-jury” to both charge conduct and preside over case.

See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S.Ct. 2252, 2259–2264, 173 L.Ed.2d 1208 (2009).

CONCLUSION

The Fifth Amendment to the United States Constitution states that no person shall be deprived of life, liberty, or property without due process of law. This means that a judge must follow procedural fairness and impartiality when presiding over a case, and that a party has the right to a fair and impartial hearing.

Similarly, Article I, Section 19, of the Texas Constitution provides for the right to due course of law and a fair trial. This includes the right to an impartial judge who is not biased or prejudiced in the case.

Both the federal and Texas constitutions allow for the disqualification of a judge who is biased or prejudiced in a case. This can be done through various means, such as recusal or disqualification motions filed by parties to the case or by the judge themselves. The disqualification process is meant to ensure that judges are impartial and unbiased when presiding over a case, and that parties receive a fair and just outcome.

Here, the Plaintiff reminded Judge Reeder of her own ethical obligation to self-recuse, which was blanked. As such and for the reasons stated in this motion, including the facts of the case as detailed in the Plaintiff’s verified declaration, Plaintiff prays the Court GRANT the Motion to Disqualify, transfers this case to another qualified judge, reset the sanctions hearing so the new judge may reconsider the courts past Orders, grant Plaintiff’s costs incurred in this matter and for such other and further relief at law or in equity to which Plaintiffs may be justly entitled.

RESPECTFULLY submitted this 17th day of March, 2023.

I declare under penalty of perjury that the foregoing is true and correct. This declaration under Chapter 132, Civil Practice and Remedies Code.