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IN THE DISTRICT COURT IN AND FOR NO
STATE OF OKLAHOMA
TA COUNTED
couRT CLERK, NOWATA co, OK
\
TERRANCE JOHNSON, ) | NOV 02 2018
) Ly RGER
Petitioner, ) sona PRRGE
)
vs ) Case No. FP-2'
) Judge Gibson
JASMINE WALTON, )
)
Respondent. )
MOTION TO DISQUALIFY JUDGE AND
STAY ENFORCEMENT OF TEMPORARY ORDER
COMES NOW, the Respondent, Jasmine Walton, by and through her attorneys of record,
Joseph W. Lang and Stephen B. Riley of Riggs, Abney, Neal, Turpen, Orbison & Lewis, The
Defendant, Jasmine T. Walton, by and through her attorney Joseph Lang, hereby respectfully
moves the Honorable Carl G. Gibson, District Judge, assigned judge in the above captioned matter,
to disqualify, remove himself and transfer the case to another judge, pursuant to Rule 15 of the
Rules for the District Courts of the State of Oklahoma, Rule 2.11 of the Code of Judicial Conduct
as adopted in the State of Oklahoma, Article II § 6 of the Oklahoma Constitution, and Okla. Stat.
tit. 12 § 1401. The Respondent further requests this Court stay enforcement of the temporary order
granted on October 30, 2018 until a ruling has been made on this Motion to Recuse. In support of
her Motion, the Respondent states as follows:
1. On August 21, 2018, the Petitioner filed his Petition and Application for Temporary
Orders with this Court. A hearing on the Application for Temporary Orders was set on October
30, 2018.2. Counsel for Respondent was contacted by Respondent on October 14, 2018, and
informed counsel for Respondent that she had received a letter in the mail from counsel for
Petitioner regarding a Temporary Order Hearing, which was to be held on October 16, 2018.
3. On October 15, 2018, counsel for Respondent communicated with counsel for
Petitioner regarding the October 16 hearing and challenges to the purported service on Respondent,
and stated that he would accept service on October 15, 2018. The October 16, 2018 Temporary
Order Hearing was continued to October 30, 2018.
4, Subsequently, counsel for Respondent was further apprised of a possible conflict
of interest with the Honorable Judge Carl Gibson and the Petitioner. Specifically, Respondent and
her father allege the following with respect to the relationship between the Petitioner and Judge
Gibson:
a. Approximately February or March, 2017, Judge Gibson contracted with
Petitioner, who owns a trucking company in Nowata County, to perform
work on Judge Gibson’s property.
db. The work on the property allegedly began before the parties’ housing cases,
Nowata County case numbers SC-2017-38 and CV-2017-7 (“Housing
Cases”) commenced, and potentially lasted throughout the entirety of the
Housing Cases’ proceedings and/or after they were concluded.
c. During that time, Petitioner made statements to Respondent and her father,
J.T. Walton, that:
i. Petitioner received voluntary bonus compensation from
Judge Gibson;ii. Petitioner held discussions regarding the Housing Cases
with the Judge during their pendency; and
iii. Petitioner had made payments to Judge Gibson.
d. Further, before the final ruling on the Housing cases, Respondent alleges that
Petitioner had informed her that the house deeded in her name would be ordered
to be deeded in the name of Petitioner, which is what eventually occurred. See
Nowata County Case Number CV-2017-17 Journal Entry of Judgment,
attached as Exhibit “A”
5. On October 30, 2018, counsel for Respondent formally entered their special
appearance in the above-styled case, and the Respondent filed her Motion to Quash Service and
Dismiss Petition. Before the Temporary Order Hearing, counsel for Respondent requested an in
camera conference with Judge Gibson.
6. Counsel for Respondent, during the in camera conference, first addressed the
jurisdictional issues raised in his Motion and requested that there be a continuance on the
Temporary Order Hearing while the Court determines the issue of proper venue. Counsel for
Respondent offered a willingness to enter into a short, two-week visitation order before a new
hearing date on the Temporary Order.
7. Judge Gibson stated that he would review the Motion and make his ruling on the
record before the Temporary Order Hearing, if such a hearing would be necessary.
8. Counsel for Respondent noted that he was informed of a potential conflict of
interest regarding Judge Gibson and the Petitioner due to their business relationship and based on
comments Respondent states had been made by Petitioner. Judge Gibson then immediately retortedthat there was one (1) payment for work performed by Petitioner on Judge’s property, that there is
no basis for recusal, and that there was no bias toward the Respondent.
9. Judge Gibson then stated that he was “probably going to deny your Motion to
Dismiss,” and immediately retracted the statement, stating that he would review it and make his
ruling on the record.
10. Counsel for Petitioner and Respondent left Judge Gibson’s chambers, and went on
the record. The parties first made oral arguments on the Motion to Quash Service and Dismiss
Petition, which was denied.
11. Judge Gibson then noted on the record the in camera request for recusal, and asked
counsel for Respondent for an offer of proof. Counsel for Respondent then related the basic points
of what Respondent and her father’s testimony would be, to which Judge Gibson—taising his
voice—dismissed as preposterous. Judge Gibson did note, however, that on one occasion, the
Petitioner had attempted to speak with the Judge about the proceedings ex parte, and Judge Gibson
stated that he told the Petitioner that he would not engage in ex parte communications with him.
12. Judge Gibson then stated his refusal to recuse himself and told counsel for
Respondent that he would need to file his written Motion to Disqualify, pursuant to Rule 15 of the
District Court Rules. The Temporary Order Hearing was then held on the record.
13. Ostensibly uncontradicted testimony during the hearing revealed (though not
exclusively) the following:
a. Minor child stayed primarily with Respondent since the parties separated in
approximately 2016, even when the parties both lived in Nowata;
b. Petitioner has pleaded guilty twice to felony assault and battery, and one as
recently as 2017;&.
While Respondent moved with minor child to Arkansas over the summer,
2018 without noticing Petitioner, such notice was not required and was done
out of fear for her own safety and previous instances of violence and threats
directed toward her;
Petitioner strained to remember the minor child’s teacher’s name from
2017-2018 school year and could not name the child’s doctor—
volunteering that enrollment and medical care was historically the
Respondent’s role;
Petitioner has not lived with his other minor child from an earlier
relationship;
The minor child is enrolled in Arkansas school and has not had disciplinary
issues, despite regularly having such issues in Nowata; and
The minor child has grown accustomed to her environment in Arkansas.
14. That testimony notwithstanding, at the conclusion of the hearing, Judge Gibson
found that Petitioner’s Application should be sustained and the minor child returned immediately
to his sole custody in Nowata by Friday, November 2, 2018 at 7:00 p.m. He further ordered the
child to be enrolled in Nowata Public Schools by Monday, November 5, 2018. No findings of fact
or conclusions of law supporting this ruling were made.
15. Rule 2.11 of the Oklahoma Code of Judicial Conduct mandates that a “judge shall
disqualify himself . . . in any proceeding in which the judge’s impartiality might reasonably be
questioned,” which includes “personal bias or prejudice” or has “more than a de minimis interest
that could be substantially affected by the proceeding.” The Oklahoma Supreme Court has stated
thatWhere there are circumstances of such a nature as to cause doubts
as to a judge’s partiality, it is the judge’s duty to disqualify
notwithstanding the judge’s personal belief that the judge is
unprejudiced, unbiased, and impartial. When such circumstances
exist, the error, if any, should be made in favor of the
disqualification rather than against it. Justice must satisfy the
appearance of justice, even though this stringent rule may
sometimes bar trial by judges who have no actual bias and who
would do their very best to weigh the scales of justice equally
between contending parties.
Miller Dollarhide, P.C. vy. Tal, 2007 OK 58, { 17, 163 P.3d 548. Notably, the Court has often
focused on the mere appearance of impropriety as the standard for disqualification, preferring to
err on the side of caution in the decision to recuse or disqualify a judge from a hearing.
16. Further, “[wJhen a Rule 15 proceeding to seek disqualification of a trial judge is
initiated, the trial court must refrain from presiding over the case until the disqualification ruling
is memorialized and the movant has, at the movant’s option, exhausted the Rule 15 procedure.”
Id. at § 21.
17. Because there was—at the very least—the appearance of impropriety from the
arms-length contractual relationship between Judge Gibson that the Petitioner and the Petitioner’s
alleged statements regarding his relationship with Judge Gibson—even if mere bluster—recusal
was appropriate in this circumstance.
18. Further, because the Rule 15 process had been initiated, the Court should have held
the hearing in abeyance until the process had been completed.
19. Thus, Respondent respectfully requests this Court to stay enforcement of the
Temporary Order until the Rule 15 process is complete.
WHEREFORE, the Respondent respectfully requests that Judge Carl Gibson be
disqualified from hearing this matter and the case be transferred to another judge. Respondentfurther requests this honorable Court enter an order staying the enforcement of the Temporary
Order entered herein on November 1, 2018.
Respectfully submitted,
. RileyfQBA No.
Joseph W. Lang, OBA No. 33019
RIGGS, ABNEY, NEAL, TURPEN,
ORBISON & LEWIS
502 West Sixth Street
Tulsa, OK 74119-1010
(918) 587-3161 - Telephone
(918) 587-9708 — Facsimile
Attorneys for RespondentATTORNEY VERIFICATION
STATE OF OKLAHOMA )
COUNTYOFTULSA)
Joseph W. Lang, being first duly sworn upon oath, deposes and states:
That he is the attomey for the above-named Respondent; that he has read the above and
foregoing; knows the contents thereof and that, to the best of his knowledge and belief, the proof
will show the statements contained therein are true g
SUBSCRIBED AND SWORN to before me this 2.o_day of November, 2018.
Dron. D. Bete 2
NOTARY PUBLIC
My Commission Expires:
{Notary Seal]
Ny
“Aww
CERTIFICATE OF MAILING
I hereby certify that on this___ day of »20___, a true and correct
copy of the above and foregoing was mailed by first class, postage prepaid to:
Thomas J. Brown
Cana B. Mize
Robinett King
117 W. 5" St., Ste. 500
P.O. Box 1066
Bartlesville, OK 74005
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IN THE DISTRICT COURT IN AND FOR NO STATE OF OKLAHOMA TA COUNTED couRT CLERK, NOWATA co, OK \ TERRANCE JOHNSON, ) | NOV 02 2018 ) Ly RGER Petitioner, ) sona PRRGE ) vs ) Case No. FP-2' ) Judge Gibson JASMINE WALTON, ) ) Respondent. ) MOTION TO DISQUALIFY JUDGE AND STAY ENFORCEMENT OF TEMPORARY ORDER COMES NOW, the Respondent, Jasmine Walton, by and through her attorneys of record, Joseph W. Lang and Stephen B. Riley of Riggs, Abney, Neal, Turpen, Orbison & Lewis, The Defendant, Jasmine T. Walton, by and through her attorney Joseph Lang, hereby respectfully moves the Honorable Carl G. Gibson, District Judge, assigned judge in the above captioned matter, to disqualify, remove himself and transfer the case to another judge, pursuant to Rule 15 of the Rules for the District Courts of the State of Oklahoma, Rule 2.11 of the Code of Judicial Conduct as adopted in the State of Oklahoma, Article II § 6 of the Oklahoma Constitution, and Okla. Stat. tit. 12 § 1401. The Respondent further requests this Court stay enforcement of the temporary order granted on October 30, 2018 until a ruling has been made on this Motion to Recuse. In support of her Motion, the Respondent states as follows: 1. On August 21, 2018, the Petitioner filed his Petition and Application for Temporary Orders with this Court. A hearing on the Application for Temporary Orders was set on October 30, 2018.2. Counsel for Respondent was contacted by Respondent on October 14, 2018, and informed counsel for Respondent that she had received a letter in the mail from counsel for Petitioner regarding a Temporary Order Hearing, which was to be held on October 16, 2018. 3. On October 15, 2018, counsel for Respondent communicated with counsel for Petitioner regarding the October 16 hearing and challenges to the purported service on Respondent, and stated that he would accept service on October 15, 2018. The October 16, 2018 Temporary Order Hearing was continued to October 30, 2018. 4, Subsequently, counsel for Respondent was further apprised of a possible conflict of interest with the Honorable Judge Carl Gibson and the Petitioner. Specifically, Respondent and her father allege the following with respect to the relationship between the Petitioner and Judge Gibson: a. Approximately February or March, 2017, Judge Gibson contracted with Petitioner, who owns a trucking company in Nowata County, to perform work on Judge Gibson’s property. db. The work on the property allegedly began before the parties’ housing cases, Nowata County case numbers SC-2017-38 and CV-2017-7 (“Housing Cases”) commenced, and potentially lasted throughout the entirety of the Housing Cases’ proceedings and/or after they were concluded. c. During that time, Petitioner made statements to Respondent and her father, J.T. Walton, that: i. Petitioner received voluntary bonus compensation from Judge Gibson;ii. Petitioner held discussions regarding the Housing Cases with the Judge during their pendency; and iii. Petitioner had made payments to Judge Gibson. d. Further, before the final ruling on the Housing cases, Respondent alleges that Petitioner had informed her that the house deeded in her name would be ordered to be deeded in the name of Petitioner, which is what eventually occurred. See Nowata County Case Number CV-2017-17 Journal Entry of Judgment, attached as Exhibit “A” 5. On October 30, 2018, counsel for Respondent formally entered their special appearance in the above-styled case, and the Respondent filed her Motion to Quash Service and Dismiss Petition. Before the Temporary Order Hearing, counsel for Respondent requested an in camera conference with Judge Gibson. 6. Counsel for Respondent, during the in camera conference, first addressed the jurisdictional issues raised in his Motion and requested that there be a continuance on the Temporary Order Hearing while the Court determines the issue of proper venue. Counsel for Respondent offered a willingness to enter into a short, two-week visitation order before a new hearing date on the Temporary Order. 7. Judge Gibson stated that he would review the Motion and make his ruling on the record before the Temporary Order Hearing, if such a hearing would be necessary. 8. Counsel for Respondent noted that he was informed of a potential conflict of interest regarding Judge Gibson and the Petitioner due to their business relationship and based on comments Respondent states had been made by Petitioner. Judge Gibson then immediately retortedthat there was one (1) payment for work performed by Petitioner on Judge’s property, that there is no basis for recusal, and that there was no bias toward the Respondent. 9. Judge Gibson then stated that he was “probably going to deny your Motion to Dismiss,” and immediately retracted the statement, stating that he would review it and make his ruling on the record. 10. Counsel for Petitioner and Respondent left Judge Gibson’s chambers, and went on the record. The parties first made oral arguments on the Motion to Quash Service and Dismiss Petition, which was denied. 11. Judge Gibson then noted on the record the in camera request for recusal, and asked counsel for Respondent for an offer of proof. Counsel for Respondent then related the basic points of what Respondent and her father’s testimony would be, to which Judge Gibson—taising his voice—dismissed as preposterous. Judge Gibson did note, however, that on one occasion, the Petitioner had attempted to speak with the Judge about the proceedings ex parte, and Judge Gibson stated that he told the Petitioner that he would not engage in ex parte communications with him. 12. Judge Gibson then stated his refusal to recuse himself and told counsel for Respondent that he would need to file his written Motion to Disqualify, pursuant to Rule 15 of the District Court Rules. The Temporary Order Hearing was then held on the record. 13. Ostensibly uncontradicted testimony during the hearing revealed (though not exclusively) the following: a. Minor child stayed primarily with Respondent since the parties separated in approximately 2016, even when the parties both lived in Nowata; b. Petitioner has pleaded guilty twice to felony assault and battery, and one as recently as 2017;&. While Respondent moved with minor child to Arkansas over the summer, 2018 without noticing Petitioner, such notice was not required and was done out of fear for her own safety and previous instances of violence and threats directed toward her; Petitioner strained to remember the minor child’s teacher’s name from 2017-2018 school year and could not name the child’s doctor— volunteering that enrollment and medical care was historically the Respondent’s role; Petitioner has not lived with his other minor child from an earlier relationship; The minor child is enrolled in Arkansas school and has not had disciplinary issues, despite regularly having such issues in Nowata; and The minor child has grown accustomed to her environment in Arkansas. 14. That testimony notwithstanding, at the conclusion of the hearing, Judge Gibson found that Petitioner’s Application should be sustained and the minor child returned immediately to his sole custody in Nowata by Friday, November 2, 2018 at 7:00 p.m. He further ordered the child to be enrolled in Nowata Public Schools by Monday, November 5, 2018. No findings of fact or conclusions of law supporting this ruling were made. 15. Rule 2.11 of the Oklahoma Code of Judicial Conduct mandates that a “judge shall disqualify himself . . . in any proceeding in which the judge’s impartiality might reasonably be questioned,” which includes “personal bias or prejudice” or has “more than a de minimis interest that could be substantially affected by the proceeding.” The Oklahoma Supreme Court has stated thatWhere there are circumstances of such a nature as to cause doubts as to a judge’s partiality, it is the judge’s duty to disqualify notwithstanding the judge’s personal belief that the judge is unprejudiced, unbiased, and impartial. When such circumstances exist, the error, if any, should be made in favor of the disqualification rather than against it. Justice must satisfy the appearance of justice, even though this stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. Miller Dollarhide, P.C. vy. Tal, 2007 OK 58, { 17, 163 P.3d 548. Notably, the Court has often focused on the mere appearance of impropriety as the standard for disqualification, preferring to err on the side of caution in the decision to recuse or disqualify a judge from a hearing. 16. Further, “[wJhen a Rule 15 proceeding to seek disqualification of a trial judge is initiated, the trial court must refrain from presiding over the case until the disqualification ruling is memorialized and the movant has, at the movant’s option, exhausted the Rule 15 procedure.” Id. at § 21. 17. Because there was—at the very least—the appearance of impropriety from the arms-length contractual relationship between Judge Gibson that the Petitioner and the Petitioner’s alleged statements regarding his relationship with Judge Gibson—even if mere bluster—recusal was appropriate in this circumstance. 18. Further, because the Rule 15 process had been initiated, the Court should have held the hearing in abeyance until the process had been completed. 19. Thus, Respondent respectfully requests this Court to stay enforcement of the Temporary Order until the Rule 15 process is complete. WHEREFORE, the Respondent respectfully requests that Judge Carl Gibson be disqualified from hearing this matter and the case be transferred to another judge. Respondentfurther requests this honorable Court enter an order staying the enforcement of the Temporary Order entered herein on November 1, 2018. Respectfully submitted, . RileyfQBA No. Joseph W. Lang, OBA No. 33019 RIGGS, ABNEY, NEAL, TURPEN, ORBISON & LEWIS 502 West Sixth Street Tulsa, OK 74119-1010 (918) 587-3161 - Telephone (918) 587-9708 — Facsimile Attorneys for RespondentATTORNEY VERIFICATION STATE OF OKLAHOMA ) COUNTYOFTULSA) Joseph W. Lang, being first duly sworn upon oath, deposes and states: That he is the attomey for the above-named Respondent; that he has read the above and foregoing; knows the contents thereof and that, to the best of his knowledge and belief, the proof will show the statements contained therein are true g SUBSCRIBED AND SWORN to before me this 2.o_day of November, 2018. Dron. D. Bete 2 NOTARY PUBLIC My Commission Expires: {Notary Seal] Ny “Aww CERTIFICATE OF MAILING I hereby certify that on this___ day of »20___, a true and correct copy of the above and foregoing was mailed by first class, postage prepaid to: Thomas J. Brown Cana B. Mize Robinett King 117 W. 5" St., Ste. 500 P.O. Box 1066 Bartlesville, OK 74005