cpf_banner_small.gif (2059 bytes)
The
Fatherhood

Coalition

Mike Franco case file

Motion for Recusal of Judge Fuller


 

From the desk of Mike Franco                                                                     ____

7 Primrose Lane, Holyoke, Mass. 01040   Tel. No. (413) 533-6597; e-mail: mv-franco@juno.com

                                                                                                     Wednesday, September 10, 2003

VIA HAND DELIVERY\

Registrar, Probate & Family Court

Attn:  Thomas P. Moriaty, Jr./Assistant

50 State Street

Springfield, MA 01103

 

 

RE:  Michael Franco, Plaintiff/Movant, Motion to Recuse (Fuller, J.); Docket No. 98D 1058

Dear Sir or Madam:

Please find attached Affidavit in Support of Motion to Recuse, which was heard Sept. 5 before this court.  Judge David Fuller instructed me to write and file, for the record, this affidavit for his review in consideration of the motion pursuant Complaint for Modification dated July 9, 2003.

 

Thank you for your assistance.

Sincerely,

 

Michael Franco

Plaintiff/Movant, Pro Se

Encl:  Affidavit In Support of Motion to Recuse


 COMMONWEALTH OF MASSACHUSETTS

THE TRIAL COURT

                      

HAMPDEN, SS.                                            PROBATE AND FAMILY COURT DEPARTMENT

 

                                                                                                            DOCKET NO.  98D1058

 

___________________________________________

MICHAEL FRANCO,                                                )                                              

                                    PLAINTIFF/MOVANT          )                       PLAINTIFF’S

                                                                                    )                     

                              v.                                                   )                       AFFIDAVIT IN        

                                                                                    )                                  

LORNA L. HORN,                                                     )                       SUPPORT OF HIS   

F/K/A  LORNA L. MUDFORD,                                 )                      

F/K/A  LORNA L. FRANCO                                     )                       MOTION TO RECUSE       

                                    DEFENDANT                         )

 

I, Michael Franco, being duly sworn according to law, do hereby depose and say:

            1.  I am Plaintiff/Movant in this case, residing at 7 Primrose Lane, Holyoke, Mass, and I am presently pro se in the matter of recusal now before Judge David Fuller at this Court.

2.  Plaintiff’s Motion to Recuse was first heard Friday, September 5, 2003 by Judge Fuller.  At the close of the hearing, after a presentation of the law and facts relevant to the case, Judge Fuller instructed the Plaintiff to write and file an Affidavit in Support of his Motion to Recuse pursuant a Modification of Complaint that was filed July 9, 2003.

            3.  Plaintiff asked Judge Fuller to hear the Motion to Recuse only after he requested that the written “advocacy” on behalf of Defendant by an Attorney Thomas P. Vincent, Northampton, be stricken from the record for reasons to include that neither the Defendant, nor her “advocate” (Attorney Vincent) were present for the hearing.  Hence, there was no party for Attorney Vincent to advocate on behalf of, and further, he was instructed by Defendant not to appear on the matter.

4.  During the hearing, Plaintiff presented law relevant to his Motions to Recuse.  Such that, in Duro v. Duro, 392 Mass. 574, 467 N.E. 2d 165 (1984), the Court urges the Judge to take into account that “here the Judge is the trier of fact, he must be most scrupulous both to avoid losing his impartiality and to maintain his unfamiliarity with disputed matters which may come before him and with extraneous matters which should not be known to him.”  This logic and analysis also supported by Furtado v. Furtado, 380 Mass. 137, 151-152 (1980).

5.  In addition, the law “allows a Judge to disqualify himself if a reasonable person would have factual grounds to doubt the impartially of the court… even though the Judge himself may subjectively be confident of his ability to be evenhanded.” as defined in Blizard v. Frechette, 601 F.2d 1217, 1220 (1st Circuit, 1979) with regard to discussing Federal disqualification statute, 28 U.S.C. Sec. 455(a) (1976).

6.   Furthermore, Blizard v. Frechette states that recusal is valid if the “… Judge’s conduct during prior judicial involvement in a case can conceivably provide a factual basis for doubting impartiality.”  Specific to this jurisprudence and the case at hand, Judge David Fuller, had found in favor of opposition to Plaintiff at least three consecutive previous hearings and issues -- once on a contempt action in Fall 2001 and two incidences related to jurisdiction during Spring 2003; one instance a contempt action and the other a motion to dismiss counter claim.

During the 2001 contempt action, Judge Fuller found against the Plaintiff in error even though the record was clear that the mother was uncooperative with regard to an exchanged of the minor child (Victoria Anne Franco), and by her own actions, had significantly contributed to the disruption of the exchange schedule.  Additionally, the judge “invented” reasons he believed the child was experiencing feelings of anxiety, attributing the condition to a fear of flying when there was no such evidence or expert witness testimony to support this total fabrication. Yet, it was clearly supported, and confirmed by the mother in her own testimony, that Victoria’s anxiety was due to her desire to spend additional time with her father, the Plaintiff.

The manner in which this hearing was ruled on seemed to indicate that Judge Fuller, and the Court in general, in no way wanted to invalidate the decision that allowed for the removal of the Victoria to the state of Texas.  A ruling to the contrary might give an appearance that it was the wrong decision; a bad decision which is to this very day causing the child harm, anxiety and long-term persistent trauma.

7.  On the jurisdictional issues, Judge Fuller found in favor of the opposing party two times ruling that “custody jurisdiction” no longer belongs to Massachusetts, and in the sophistry of the court process, the law and the judge’s legal writings he stated, that if the father, Plaintiff, had a problem with that outcome he should take the matter up with the court in Texas.  During several custody jurisdiction hearings over more than six months the case first went before Judge Ann Geoffrion, who first agreed to hear the matter, but later reneged, then in the interim, the matter went before Judge David Sacks, who without just cause or request by either party, continued the case and rescheduled it before Judge Fuller.

The Court seemed confused as to how to deal with this serious issue, and later manipulated itself and the case in order to “wash its hands of the matter.”  Here is where the apparent cunning of Judge Fuller “reared its ugly head” once again.  Even though, the Court and the Commonwealth had adjudicated a pattern of exercising and retaining custody jurisdiction, especially at the petitioning of the mother, as well that it was patently clear the divorce order had obligated the mother, in accordance with a “good faith offer,” to return Victoria to Massachusetts on a periodic schedule so she could spend time with her father and family here.   However, Judge Fuller’s bias in favor of the mother is so engrained that he gave little, if no consideration to the child’s needs, the intent of the Court Order or the prevailing pattern of the Court’s previous rulings in which it exercised “custody jurisdiction” in Massachusetts.

Therefore, it is of reasonable mind that the judge’s “inter-judicial knowledge” (prior judicial involvement in the case) of the parties or evidence, which can conceivably provide a factual basis for doubting impartiality, (Federal Disqualification Statute, 28 U.S.C. Sec. 455(a) (1976) and as a result the judge shall recuse himself from the matter in order to not inadvertently harm the case or the parties.

8.   With regard to “extra-judicial knowledge” of the parties or evidence in which a reasonable person could conceivably provide a factual basis for doubting impartiality, we have two problem areas, or sets of facts, of which Judge Fuller would have an obligation to recuse himself.  The first set is the Judge’s indisputable awareness, recognition and knowledge of the Plaintiff’s role as the State Chairman (and devoted activist member) of an organization called the Fatherhood Coalition in which the Plaintiff has served for more than three years.  The second set relates to the Plaintiff’s knowledge of Judge Fuller’s inappropriate ex parte communications with Ms. Suzanne Barnett, formerly of Holyoke, during the pendancy of her divorce.

In reference to the Plaintiff’s activities with the coalition, it is unreasonable to believe that any judge who regularly presides on the bench in the Hampden Division Probate and Family Court would not have knowledge of Plaintiff’s involvement as a fathers’ rights activist and advocate.  This is true because of the numerous news and feature stories via local and regional media coverage ranging from television (including early evening, Live at 5 and 6 news coverage in which on at least on occasion the 1st Justice himself, David Sacks, was interviewed for the benefit of fair and balanced journalism) to radio and newspapers reporting that the Plaintiff, with numerous other activist members, protested and rallied on the sidewalk and streets adjacent the Court building.  The group also garnered numerous news and feature articles in local and regional papers, and participated in talk radio programs and various other news related interviews, as well as having many letters to the editor published that have in fact circulated throughout the Court building among employees to include key managers and administrators, law clerks, assistant registrars, process clerks, guards and custodial staff.

Furthermore, we had performed several series-of-eight early morning protests between the hours of 7:30 a.m. and 9:00 a.m. in all types of weather during 2000 and 2002 in which we greeted Court employees at the entrance of the building from both State Street and East Columbus Avenue to start their workday.  Those employees who parked their cars beneath the Court building in the securing parking area had to drive by our numerous demonstrations on Columbus Avenue since their was no alternative route by automobile.  On several occasions, Judge Fuller drove within a few feet of the Plaintiff while he was holding a protest sign, which probably read, “Probate & Family Court Judges are Petty Tyrants,” (one of Plaintiff’s favorite signs).  The Judge would turn the corner from State Street on to East Columbus Avenue in his German-made car (Volkswagen) in order to access the parking beneath the building.

Much of our activity can be viewed on internet site at www.fatherhoodcoalition.org.  Because of our method of activism and the amount of activity, people from around the nation, and sometimes the world, have come to us seeking involvement, information and advice.

9.  When Judge Fuller denies any knowledge of Plaintiff’s involvement as an activist, he does so at risk of showing a lack of honesty and integrity, or at risk of exposing an apparent inability to be spatially oriented or even moderately perceptive, and perhaps even having serious problems with peripheral vision.  In summary, Judge Fuller, a Harvard Law School Graduate, is either not very “with it” intellectually and intuitively, or he is just extremely cunning and sly.  However, I believe, sincerely, that it is the latter, perhaps to the Judge’s credit.  The truth of the matter is that the Judge knows full well who the Plaintiff is, and the role the Plaintiff has with regard to his responsibility to and for his advocacy and activism.  After all, what kinds of issues or current events would Judge David Fuller and Judge David Sacks talk about (Perhaps:  “How about those protestors this morning?) during lunch together when they occasionally frequent one of the local eating establishments.

What seems very clear here is that the Plaintiff, Michael Franco, has been systematically and politically persecuted by justices in the Hampden Division Probate and Family Court since Judge Anne Geoffrion’s ill-contrived, bias and bigoted divorce and custody decision back in January 2000, and the pattern of adverse rulings and actions against the Plaintiff to date as a result of his efforts in organizing a credible network of activists and a strong coalition of members in Western Massachusetts who have very vocally and publicly opposed the Court and its process related to child custody, as well as the manner in which judges themselves discriminate against men and fathers based on gender.

10.   The second set of facts relates to the Plaintiff’s knowledge of Judge Fuller’s inappropriate ex parte communications with Ms. Suzanne Barnett, formerly of Holyoke, during the open and pending case of her divorce.  Ms. Barnett, by coincidence, appears to be a mutual acquaintance of both Plaintiff and Judge according to statements she made to Plaintiff on at least one occasion in person at Plaintiff’s sister’s home in South Hadley and on two occasions by phone during the summer-fall of 2002 and the winter of 2003.

Ms. Barnett claims to have a familiar and friendly relationship with Judge Fuller explaining that she spoke with him about her own divorce while going through the process, and on at least one of the occasions the Judge told her not to worry about it and that things would be alright.  Ms. Barnett described Judge Fuller as a “really nice man” who had been very helpful to her, so she found it very hard to believe -- especially since she felt the Plaintiff was a good father -- that the Plaintiff was experience a series of problems with judges in the Probate & Family Court while he struggled to gain more meaningful access to his child, Victoria Anne.

If this is the case, which Plaintiff has no reason to believe otherwise since Ms. Barnett lacks motive as it relates to the relationship between herself, the Plaintiff and his family, then how can the Plaintiff or any litigant before Judge Fuller feel confident the their matter will be adjudicated without prejudice and any improper influence.  Because of a clear impropriety and potential for it to have unpredictable adverse effects on the parties, Judge Fuller should most certainly recuse himself from the Franco matter, and further be evaluated for his ability to remain on the bench so that we might prevent harm to the public.  Any judge who has the tendency to have inappropriate ex parte contact with litigants while involved in an open matters before the Court must be stopped before that creates a situation that will inevitably hurt and damage people, sometimes in unforeseeable ways.  It is just that simple.

11.  Lastly, now that Judge David Fuller knows Plaintiff, Michael Franco’s, opinion of the judge, in that Plaintiff believes the Judge is a blatant liar, an inventor and fabricator of ill-logical stories in order to further an agenda and persecute the Plaintiff, the Judge in no way whatsoever can possibly be impartial and objective in matters affecting the Plaintiff’s Civil Case No.:  98D1058, in whole or part, in the jurisdiction of the Hampden Division Probate and Family Court, Springfield, Massachusetts.

            Subscribed under the pains and penalties of perjury this 10th day of September 2003.

 

Dated:  September 10, 2003                                                     SUBMITTED BY,

 

­­­­­­­­                                                                                    ____________________________

                                                                                          Michael Franco, Plaintiff/Movant

7 Primrose Lane

                                                                                                Holyoke, MA   01040

                                                                                                Tel. No. (413) 533-6597


cpf_home.gif