Affidavit of Disqualification regarding Judge Peter I. Breen
(filed June 9, 2005, served June 10, 2005)
Summary:
|
CODE: 2180 Patrick Christopher, Lear 1805 North Carson Street #120 Carson City, Nevada 89701 775-721-9643 In Propria Persona
IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE
AFFIDAVIT OF DISQUALIFICATION FOR ACTUAL BIAS, PREJUDICE AND CONFLICT OF INTEREST COMES NOW Patrick Christopher Lear, Affiant, in Propria persona, to present this AFFIDAVIT OF DISQUALIFICATION FOR ACTUAL BIAS, PREJUDICE AND CONFLICT OF INTEREST. In accordance with N.R.S. 1.230(1), Affiant requests the disqualification of Judge Peter I. Breen, as judge in case PR78-2800 on the basis that the aforementioned Peter I. Breen entertains actual bias and prejudice against Affiant and has a conflict of interest in the matters in litigation. BACKGROUND Affiant is a remainderman beneficiary, as defined in part by NRS 165.020(d), under the William Powell Lear and Moya Olsen Lear Trust Agreement (LFT). Affiant is involved in a controversy with James L. Murphy, as LFT Trustee and Grant Thornton, LLP accountant. Affiant is also involved in a controversy with Tommy L. Tucker as successor LFT Trustee. Since 1983, the LFT Trustees have been represented by Cooke, Roberts and Reese, Ltd. and/or David J. Reese, Esq and Petitioner has also filed a complaint against Cooke, Roberts and Reese, Ltd and David J. Reese, Esq. for malpractice, breach of contract and other violations. See Petition to Set Aside Accountings, filed April 26, 2005, in particular sections 3.3, 7.2 and 7.3. Affiant is also involved in a controversy with Grant Thornton, LLP over accounting irregularities, double-billing for LFT Trustees' duties, wrongful assumption of Trustees' duties and other violations of law. See in particular Petition to Set Aside Accountings, filed April 26, 2005, particularly sections 3.4, 5.1 and §142 through §456, inclusive. Affiant is also involved in a controversy with Richard B. Rowley (recently deceased LFT Trustee), Harold P. Dayton (recently deceased LFT Trustee), and Dunham Trust Company over non-conforming accountings, gross negligence and failure, neglect and refusal to perform fiduciary duties. See Petition to Set Aside Accountings filed April 26, 2005, particularly sections 3.2, 7.1 and 7.3. Affiant also has matters before the Court wherein the City of Reno and the Airport Authority of Washoe County may have liability and which includes but is not limited to environmental litigation (see U.S. District Court case #CV-N-94-494 & CV-N-98-34) and joint land ownership. Affiant also has matters before the Court which pertain directly to his right to due process of law and equal protection of the law, namely the failure of the LFT Trustees to provide legal notice to particular class of beneficiaries and as required by NRS 165.030 through NRS 165.120 for a period which exceeds twenty years. Since Affiant has entered the instant case on March 18, 2004, Judge Peter I. Breen has 1) been contumacious in his duties and obligations, 2) has been dilatory in all respects, 3) has refused to enforce the laws of the State of Nevada, 4) has refused to enforce this Court's own Orders, 5) has abused his discretion, 6) has failed, neglected and refused to rule upon matters Affiant brought and are pending before the Court, 7) has been seen leaving his office in a state of intoxication, 8) has refused to rule on multiple acts of malpractice that have occurred in his Court despite voluminous documentation and multiple requests for corrective action, and 9) has participated in preventing the Nevada State Bar from taking action in a matter of malpractice and then refused to take action himself when such action was justified and required. FACTS 1. On January 6, 1997, Peter I. Breen swore an oath to support, protect and defend the Constitutions and governments of the United States of America and the State of Nevada against all enemies and that he would bear true faith, allegiance and loyalty to the same, any ordinance, resolution or law of any state notwithstanding and that he would faithfully perform all the duties of the office of Second judicial District Court Judge, Department No. 7. Exhibit 1. 2. On March 16, 2005, District Judge Peter I. Breen filed his Judicial Financial Disclosure Statement for the year ending December 31, 2004. In said Financial Disclosure Statement, under item 11 "Business Entities" "List each business entity in which you .... [are] involved as a .... Director, officer, owner (in whole or in part), limited or general partner, or holder of any class of stock ..." Peter I. Breen responded "None". Exhibit 2. 3. Peter I. Breen responded to item 11 of the Financial Disclosure Statement in the exact same manner for the years ending December 31, 1999, 2000, 2001, 2002 and 2003. Exhibit 2. 4. On October 7, 1999, the Lee F. Delgrande Foundation was formed. Exhibit 3. 5. The Honorable Peter I. Breen has been a member of the Board of Directors since the inception of the Lee F. Delgrande Foundation and to the best of Affiant's knowledge, President of said Foundation since at least October 2000. Exhibit 4. 6. Brian Wallace has been a member of the Board of Directors of the Lee F. Delgrande Foundation since inception and Treasurer since at least October 2000. Exhibit 4. 7. Brian Wallace is also the Managing Partner of Grant Thornton, LLP, and is a respondent in the instant case. Exhibit 5. 8. This Affiant has been involved in continuing litigation for transparency in the accountings of the Lear Family Trust since March 18, 2004 which directly involves Grant Thornton, LLP. James L. Murphy as LFT Trustee, accountant and partner of Grant Thornton, LLP, as well as Grant Thornton, LLP as de facto Trustee of the LFT, as well as Trustees Richard B. Rowley (deceased) and Harold P. Dayton (deceased), successor Trustee Tommy L. Tucker, Dunham Trust Company have opposed transparency and timely disclosure of LFT records, documents, and true, correct and complete accountings to Affiant. 9. Judge Peter I. Breen, among numerous other things, has stated that he will not review anything regarding the LFT management and accounting prior to the year 2000. Judge Peter I. Breen has shown bias, prejudice and bent of mind against Affiant and in favor of James L. Murphy and Brian Wallace as Grant Thornton, LLP accountants and partners, and others. SEQUENCE OF EVENTS 10. On March 18, 2004 Affiant entered the instant case and brought certain matters about lack of notice and other egregious violations of due process and equal protection of the law to Judge Breen's attention who recognized during the March 18, 2004 hearing that a problem with regard to notice existed. 11. On March 18, 2004, at the end of the Court Hearing Probate Commissioner Pam Gullihur who is under the supervision of Judge Peter I. Breen and Department 7, displayed hostility toward Affiant which was confirmed by lack of cooperation with a simple request to file Affiant's statement in the case and which necessitated a written reminder of what occurred in open Court and with a copy of the transcript as an exhibit. 12. On or about June 4, 2005, Judge Peter I. Breen substituted Probate Commissioner Lynne K. Simons for himself in the instant case. 13. On June 9, 2004, LFT Trustees and their Attorney David J. Reese, Esq. filed a petition which among other things requested that the rights to information regarding the LFT by LFT beneficiaries be withheld or restricted. 14. On June 15, 2004, Affiant filed a Motion for Declaratory Relief. 15. On June 17, 2004, Affiant appeared in Court before Lynne K. Simons who exhibited bias, prejudice and hostility toward Affiant. See Court Transcript of June 17, 2004. 16. On June 29, 2004, LFT Trustees by and through their attorney David J. Reese, Esq. opposed Affiant's Motion for Declaratory Relief and not only made numerous misrepresentations of material fact and law but contained bad faith pleading. 17. On July 8, 2004, Affiant filed a Reply to Opposition to Motion for Declaratory Relief which described at length the multiple acts of bad faith pleading and misrepresentations of fact and law by LFT Trustees' attorney David J. Reese, Esq. 18. On July 14, 2005, Affiant filed an Affidavit of Disqualification for Actual Bias against Probate Commissioner Lynne K. Simons. 19. On July 15, 2005 Lynne K. Simons recused herself from the case, recognizing a conflict of interest and stated to this Affiant that her reason for recusing herself was not the reason brought forth in Affiant's Affidavit of Disqualification. 20. On July 21, 2005, Judge Peter I. Breen entered an order that reads in pertinent part: "All further proceedings in this matter, until and unless otherwise ordered by this Court, shall be heard by The Honorable Peter I. Breen, District Judge, Department 7." 21. On July 30, 2005, Judge Peter I. Breen heard the LFT Trustees' Petition for Instructions (June 9, 2004). 22. On August 30, 2004, Affiant's brother, Christian William Lear filed a Response and Memorandum to Court Order of July 30, 2004 regarding Adoption with regard to the issue of his rights and the effect of his adult adoption, as directed by Judge Peter I. Breen on July 30, 2004. LFT Trustees filed their Trustees' Points and Authorities Regarding Legal Effect of the Adoption of a Remainder Beneficiary on the same day, as directed by Judge Peter I. Breen. 23. On September 3, 2004, Affiant filed a Motion for Immediate Disposition to Motion for Declaratory Relief. 24. On September 15, 2004, Affiant's brother, Christian William Lear filed a reply brief on the same day as LFT Trustees. Christian William Lear's reply brief once again showed the bad faith pleading and misrepresentations of material fact and law by Trustees' attorney David J. Reese, Esq. 25. On September 21, 2004, Affiant's brother, Christian William Lear filed a Motion for leave to amend Reply to Trustees' Points and Authorities Regarding Legal Effect of the Adoption of a Remainder Beneficiary and Errata to Correct Grammatical and Spelling Errors along with his Amended Reply to Trustees' Points and Authorities Regarding Legal Effect of the Adoption of a Remainder Beneficiary and Errata to Correct Grammatical and Spelling Errors, for the purpose of including relevant facts and law pertaining to the international implications of his Swiss adult adoption, as requested by Judge Peter I. Breen on July 30, 2004. 26. On October 11, 2004, Affiant filed an Objection to Seventeenth Intermediate Accounting of Trustees of Lear Family Trust "B" and Motion to Vacate October 14, 2004 Court Hearing due to the numerous accounting irregularities. 27. On October 18, 2004, Affiant filed a Request for Submission of Motion for Immediate Disposition of Motion for Declaratory Relief. 28. On October 28, 2004, with regard to the Petition for Confirmation of Settlement Agreement filed by James L. Murphy as Grant Thornton, LLP accountant, partner and LFT Trustee, Judge Breen ordered a conference of the parties, after he determined that he would not confirm the pending Settlement Agreements regarding the liability of the LFT with regard to land contamination near Stead. Further, the Probate Commissioner was not available to act as the mediator in the meeting ordered by Judge Breen, even though a Judge, master/Probate Commissioner is required to be present at such a meeting and no record was taken or kept. WDCR 45 and NRS 155.130 respectively. 29. On October 28, 2004, Judge Peter I. Breen continued the hearing for one week and caused this Affiant to travel to the Court in Reno from Carson City when Judge Peter I. Breen knew he would be on vacation on November 4, 2004 and that, in light of Judge Breen's July 21, 2004 Order, Judge Kosach would not hear the matter. 30. Between October 28, 2004 and November 10, 2004, LFT Trustees, David J. Reese, Esq., John B. Galvin, Esq., Patricia Lear, Esq. and others, unbeknownst to Petitioner had conspired together and with each other to send covert ex-parte communications to Judge Breen with regards to the Settlement Agreements and other matters related to pending LFT litigation. 31. On November 10, 2004, LFT Trustees' attorney David J. Reese, Esq. stated that he was fully aware of the covert, secret and ex-parte communications of Patricia Lear, Esq. and others and admitted in open Court that he had possession of Patricia Lear, Esq.'s and others' covert communications to Judge Breen asking Judge Breen, in part, to approve the Settlement Agreements. Transcript, November 10, 2004, p.3, lines 22-25 and p.4 lines 1-6 (Petition to Set Aside Accountings Exhibit 68). SCR 174(2), SCR 202. Thereafter, without hearing Affiant's objections, Judge Breen entered a judgment, as requested by Respondent Patricia Lear, Esq. in conspiracy with Respondent David J. Reese and others, denying Petitioners' standing to object to a Settlement Agreement which directly affected Petitioners' substantive rights and interests in the LFT and in violation of due process and equal protection of the law. 32. On November 10, 2004, after seven and one half months of refusals by the LFT Trustees and their attorney David J. Reese to produce any documents relevant to the matters before the Court, Judge Peter I. Breen threatened this Affiant with sanctions for filing two motions to compel production of documents and things (pursuant to NRCP 34) and stated that there was "no showing of any irregularities" with respect to the LFT management and accountings. Transcript, page 8, lines 15-18 and page 14, line 6. Judge Peter I. Breen was fully aware that Affiant had not received any notice or accountings for two decades and knew that without access to LFT records Affiant could not protect his rights and interests in the LFT. 33. On November 10, 2004, when explaining his objections to the accountings, Christian William Lear stated "And we believe there's been some Arthur Andersen creative style of accounting in this." Judge Breen stated "I'm sorry, I don't know the name." Court Transcript, November 10, 2004, page 15, lines 24-25 and page 16, line 1. 34. On November 16, 2004, in another ex-parte communication Patricia Lear, Esq. and others expressed their relief and gratitude to Judge Peter I. Breen for his "efforts and decisive action in this regard", and in effect, thanking Judge Breen for considering their covert and secretive communication requests and for issuing an order in accordance with the influences and representations made in their covert, secretive and ex-parte communications which preceded this Court's determinations of November 10, 2004. 35. At the end of the November 23, 2004 morning session hearing, Judge Breen informed Trustees and REESE that these covert communications are sanctionable and that these communications had to "stop". See Transcript, November 23, 2004, morning session, page 22, lines 6-11 & 16-17. Affiant has reason to believe that Judge Peter I. Breen filed the ex-parte communications referred to above under item 30 and 34 above, in the file of the instant case between November 10, 2004 and November 23, 2004. 36. On November 23, 2004, Judge Breen stated that he did not want to review any accountings prior to 2000 despite Affiant citing the fact that he had not received due legal notice for a period of over twenty years. See November 23, 2004 Transcript, Morning Session, p. 22, lines 6-17. 37. On January 20, 2005, Judge Breen entered a capricious ruling about numerous matters. Judge Peter I. Breen failed and neglected to rule on Affiant's Motion for Declaratory Relief which had been filed on June 15, 2004, a Motion for Immediate Disposition of Motion for Declaratory Relief filed on September 3, 2004 and a Request for Submission of Motion for Immediate Disposition of Motion for Declaratory Relief filed on October 14, 2004. Judge Breen also denied Christian William Lear's Motion for Leave to Amend filed September 21, 2004 and declared in a case of circular logic that "Christian William Lear (Hale) is not a beneficiary under this estate by reason of his adoption and therefore it is ordered ... that Christian William Lear (Hale) has no beneficiary interest in this estate" and denied Affiant's and Christian William Lear's motions for reconsideration and in doing so contradicted his own statements in the record of the Court while failing to provide a single conclusion of fact or law on any of the matters ruled upon thereby abusing his discretion. 38. On January 25, 2005, Affiant discovered violations of law and malpractice of David J. Reese and Patricia Lear, Esq. in furtherance of opposing this Affiant. 39. On February 1, 2005, Christian William Lear brought the malpractice of David J. Reese, Esq. and Patricia Lear, Esq. to the attention of this Court. 40. On February 17, 2005, Affiant filed a complaint against David J. Reese, Esq. and Patricia Lear, Esq. with the Nevada Bar Association. 41. On February 2, 2005, Affiant's Motion for Extension of Time was heard in Chambers. During said hearing Judge Peter I. Breen asked Affiant if Affiant had any evidence of ex-parte communications between Judge Breen and David J. Reese or Mr. Martin. 42. On February 1, 2005, March 28, 2005, April 26, 2005 and May 9, 2005 Affiant and Affiant's brother, Christian William Lear brought the malpractice of Trust Attorney David J. Reese, Esq. to the attention of Judge Breen. 43. On February 22, 2005 Christian William Lear filed an Appeal to the Supreme Court of the State of Nevada upon the January 20, 2005 capricious ruling by Judge Peter I. Breen. 44. On February 28, 2005, Affiant and Christian William Lear filed a Supplement to the Complaint to the Nevada State Bar. 45. On March 7, 2005, Affiant filed a REPLY TO OPPOSITION TO MOTION TO CORRECT ORDER AND TO ISSUE ORDER (Nov 23, 2004) and REPLY TO OPPOSITION TO PATRICK CHRISTOPHER LEAR'S MOTION FOR CONCLUSIONS OF FACT AND LAW REGARDING JAN 20, 2005 COURT ORDER and CONTINUING OBJECTION TO CONFIRMATION OF SETTLEMENT AGREEMENT which is relevant to the instant matter and is incorporated and reiterated herein in its entirety, as it documents how LFT Trustees' attorney David J. Reese, Esq. is allowed to draft orders which are subsequently signed by Judge Breen which do not reflect the record and are, at least in part, diametrically opposed to the events as recorded in the instant case in addition to multiple violations of this Affiant's rights to due process and equal protection under the law. 46. Affiant has reason to believe that Judge Breen or the Probate Office under the direction of Judge Breen, caused an entry to be made in the docket on March 7, 2005 which stated "case reopened" and remains to this day a meaningless entry in the docket. 47. On March 17, 2005, the Nevada Bar Association caused a written communication to be sent to Affiant and stated that upon grounds that the Second Judicial District Court had "reopened the case" the Nevada Bar Association refused to act upon David J. Reese's and Patricia Lear, Esq. breaches and violations of the Supreme Court Rules of Professional Conduct, effectively dismissing Affiant's complaint without prejudice. 48. On March 28, 2005, Christian William Lear, Affiant's brother filed a Motion for Leave to Supplement bringing the complaint about attorneys David J. Reese, Esq. and Patricia Lear to the Court's attention once again and requesting their disbarment. 49. On April 26, 2005, Affiant filed a 169 page Petition to Set Aside Accountings, which covers the years of accountings of the LFT from 1978 through 2004 and once again raised the issue of malpractice by David J. Reese, Esq. and Patricia Lear, the hostility of the LFT Trustees toward Affiant, unaccounted for LFT property and numerous violations of law and rules of accounting. 50. On April 29, 2005, Affiant filed a Petition for ex-parte Order to Appoint a Receiver of the Lear Family Trust (Receiver). 51. On April 29, 2005 Affiant also filed a Petition for Petition for ex-parte Order to Compel Production of Accounting for the Year 2004 (Compel Accountings), as these accountings were in violation of NRS 165.040(2) by being over 55 days late - over 90 days late to date. 52. On April 29, 2005 at 2:45pm, because the parties could not agree upon a date for two petitions filed by LFT Trustees to be heard, Affiant participated in a meeting in Judge's chambers, the purpose of which was to set a date at which the two petitions would be heard. During said hearing Judge Breen once again reiterated that he did not want to address the matter of the accountings prior to 2000. Affiant once again restated the fact that he had not received due legal notice for a period exceeding twenty years and that the accountings did not meet the requirements of the law and there was substantial property unaccounted for from the LFT. At that time, Judge Breen entertained David J. Reese's objection about the length of this Affiant's Petition to Set Aside Accountings. Judge Breen directed the Affiant to file a summary of the Petition to Set Aside Accountings and that the summary was not to exceed twenty pages and be filed with this Court within "ten days". 53. On May 4, 2005 Judge Peter I. Breen issued a capricious order denying Affiant's Petition for ex-parte Order to Appoint a Receiver of the Lear Family Trust (Receiver) without hearing, discovery, and without including conclusions of fact or law. Petitioner did not file a request for submission on the Petition for ex-parte Order Receiver. 54. On May 9, 2005, Affiant timely filed a 20 page summary, as directed. 55. On May 14, 2005 Affiant filed a Request for Submission for Petition for ex-parte Order to Compel Production of Accounting for the Year 2004. 56. On June 2, 2005 Judge Peter I. Breen issued a capricious order denying Affiant's Petition for ex-parte Order to Compel Production of Accounting for the Year 2004 while knowing that the annual accounting was three months late and without providing any conclusions of fact or law and while failing, neglecting and refusing to enforce this Court's Orders of August 13, 1982 and January 17, 1983 requiring LFT Trustees to provide timely LFT accountings pursuant to NRS §165.030 through NRS §165.120, NRS §165.040 specifically. POINTS AND AUTHORITIES 57. By the foregoing acts and omissions, Judge Peter I. Breen has violated numerous provisions of the Judicial Canons, to wit: Preamble to the Nevada Code of Judicial Conduct "Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and highly visible symbol of government under the rule of law. .... The text of the Canons and Sections is intended to govern conduct of judges and to be binding upon them."
58. By the foregoing acts and omissions, Judge Peter I. Breen violated the purposes and policy of the judiciary as clearly expressed in the preamble of the Nevada Code of Judicial Conduct. An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.
59. Judge Peter I. Breen, knew or should have known of his obligation to abide by the Judicial Canons. Judge Peter I. Breen, knowingly and wantonly violated Canon 1 by failing to recuse himself from case PR78-2800. Peter I. Breen is the President and a member of the board of Directors of the Lee F. Delgrande Foundation. Treasurer and fellow board member of that foundation is Brian Wallace. Brian Wallace is the managing partner in Grant Thornton, LPP and effectively a respondent through Grant Thornton, LLP in the case at bar. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
60. On November 19, 2005, Judge Peter I. Breen violated Canon 2 when he was seen by Christian William Lear, at approximately 4:45 pm leaving his office in a state of intoxication. 61. Judge Peter I. Breen also violated Canon 2 by failing to disclose his position as President of the Delgrande Foundation and his relationship to Grant Thornton, LLP managing partner, Brian Wallace. 62. Judge Peter I. Breen also wantonly violated Canon 2 by knowingly accepting to take on the instant case after having accepted the appointment as President of the Delgrande Foundation and knew that Brian Wallace was Grant Thornton, LLP managing partner and that James L. Murphy was a Grant Thornton, LLP accountant and partner and that Brian Wallace is in a position to exert influence and to have ex-parte communications with Judge Breen. A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. ....
63. Judge Peter I. Breen violated Canon 2B by maintaining a bias and prejudice against Affiant and to the benefit of another member of the Board of Directors of the Delgrande Foundation and co-partner of Grant Thornton, LLP along with Grant Thornton, LLP accountant, partner and LFT Trustee James L. Murphy. Adjudicative Responsibilities. (1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.
64. Judge Peter I. Breen violated Canon 3B(1) when he heard matters as they relate to the accountings and management of the LFT by accounting firm and de facto Trustee Grant Thornton, LLP. Judge Breen should have recused himself from the case upon nomination of Brian Wallace as treasurer of the Delgrande Foundation. Affiant has reason to believe that due to Judge Breen's meetings and conversations with Brian Wallace and probably accountant James L. Murphy Judge Breen has prior knowledge of the facts in the case at bar or a prior interest in an issue arising out of them. (2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interest, public clamor or fear of criticism.
65. Judge Peter I. Breen violated Canon 3B(2) when he refused to enforce the laws of the State of Nevada, particularly, NRS 165.040 and failing, neglecting and refusing to compel the production of the LFT annual accountings for the year 2004 as required by law. 66. Judge Peter I. Breen violated Canon 3B(2) when he refused to enforce this Court's own Orders of August 13, 1982 and January 17, 1983 directing the LFT Trustees to provide accountings pursuant to NRS §165.030 through §165.120 when he refused to compel the LFT Trustees and Grant Thornton to produce the accountings for 2004. (7) 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 except that: (ii) The judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
67. Judge Peter I. Breen violated Canon 3B(7) when acknowledging receiving ex-parte communications from "most of the people who stand, who benefit in any way from the Lear estates urging me, I believe, to approve the settlement." See November 10, 2004 Transcript, p.3 lines 24-25 and p.4 line 1. The secret and ex-parte communications to Judge Breen were provided with the knowledge and consent of LFT Trustees James L. Murphy, Tommy L. Tucker and de facto LFT Trustee Grant Thornton, LLP's attorney David J. Reese, Esq. Said ex-parte communications are prohibited by law. Without providing a copy of said ex-parte communications to Affiant, until after his ruling, without according Affiant with the right to review and respond to said ex-parte communications, and after having been exposed to one-sided argumentation, improper influence if not outright corruption,[1] Judge Breen immediately ruled in the matter to the detriment of and to the damage of Affiant's interests and in violation of Affiant's rights to due process and equal protection of the law. (8) A judge shall dispose of all judicial matters promptly, efficiently and fairly.
68. Judge Peter I. Breen violated Canon 3B(8) when he failed, neglected and refused to rule upon Affiant's Motion for Declaratory Relief. 69. Judge Peter I. Breen violated Canon 3B(8) when failed to rule on the matter of Christian William Lear's adoption for a period exceeding two months after the last Court hearing on the matter. 70. Judge Peter I. Breen violated Canon 3B(8) every time he issued an Order which failed to provide conclusions of fact and law when such an order reasonably required conclusions of fact and law. 71. Judge Peter I. Breen violated Canon 3B(8) every time he issued a capricious Order protecting Grant Thornton, LLP, Brian Wallace and/or James L. Murphy from scrutiny by LFT beneficiaries whether it be this Affiant, Christian William Lear, Shanda Lear-Baylor or any other remainderman beneficiary who might have expressed or claimed an interest. 72. Judge Peter I. Breen violated Canon 3B(8) when he accepted prohibited ex-parte communications and failed, neglected and refused to discipline those who participated in such prohibited ex-parte communications while acceding to and issuing orders in accordance with those covert requests. Said ex-parte communications effectively provided a cover for Judge Peter I. Breen's undisclosed and secret relationship with Brian Wallace, James L. Murphy and Grant Thornton, LLP, providing him with a motive to rule in the favor of LFT de-facto Trustee Grant Thornton, LLP while giving the impression that he was acceding to the demands of certain LFT beneficiaries who suffer from the weakness of greed and self-interest. Disciplinary Responsibilities. (2) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate authority.
73. Judge Peter I. Breen received information on numerous occasions that not only indicated substantial likelihood but actually documented the numerous violations by David J. Reese, Esq. and Patricia Lear, Esq. of the Supreme Court Rules of Professional Conduct, thereby raising substantial questions as to David J. Reese's honesty, trustworthiness and fitness as a attorney for the LFT. Peter I. Breen not only failed to inform the appropriate authority but later made an entry into the record to prevent any corrective action to be taken against David J. Reese, Esq. by the Nevada State Bar. Furthermore, upon being informed once more by Christian William Lear of David J. Reese, Esq. and Patricia Lear, Esq.'s malpractice and violations of the Rules of Professional Conduct, Peter I. Breen failed and refused to act upon the documented information of his own volition and as required by Judicial Canon 3D(2). Disqualification. (1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;
74. Judge Peter I. Breen violated Canon 3E(1) when, at the outset of his tenure on this case, he failed to disqualify himself in a proceeding where his impartiality might reasonably be questioned. 75. Judge Peter I. Breen violated Canon 3E(1)(a) when he failed to disqualify himself while having personal bias or prejudice concerning certain LFT beneficiaries. 76. Judge Peter I. Breen violated Canon 3E(1)(a) due to his personal, professional and contractual relationship with Brian Wallace whose interests are at stake in this matter. Practice of Law. Unless otherwise permitted by law, a judge shall not practice law.
77. Judge Peter I. Breen, violated Canon 4G and practiced law for the benefit of certain LFT beneficiaries, LFT Trustees and Grant Thornton, LLP by entering into the record, of his own volition, the ex-parte letters mailed or faxed to him between October 28, 2004 and November 16, 2004 while the parties who had written these letters had failed and neglected to enter a formal appearance in the case and when he knew that the covert communications were intended to secretly influence his decisions. CONCLUSION 78. Judge Peter I. Breen has been contumacious in his duties and obligations, has been negligent and engaged in multiple breaches of the Nevada Code of Judicial Conduct. 79. Judge Peter I. Breen knew of the sanctionable malpractice by David J. Reese, Esq. whether from bad faith pleading, misrepresentations of fact and misrepresentations of law or aiding and abetting ex-parte communications to hide the true nature of the influence upon the Court, and while he had the discretion and obligation to discipline David J. Reese, Esq. on his own, engaged in nonfeasance and misfeasance by doing nothing. 80. Affiant has reason to believe that on March 7, 2005, Judge Peter I. Breen caused an entry to be made into the docket of the instant case that reads "Case Reopened" without intending to reopen anything or take any further action, he effectively engaged in malfeasance and in the promotion of legal malpractice when he entered an order in compliance and in furtherance of the known malpractice. 81. Judge Peter I. Breen attempted to manipulate the outcome of this case without incurring any personal responsibility by substituting Probate Commissioner Lynne K. Simons for himself and when Probate Commissioner Lynne K. Simons recused herself, issued an Order that only Judge Breen would sit on the instant case when he knew of his professional and contractual relationship with Grant Thornton, LLP's managing partner. 82. Judge Peter I. Breen has been dilatory in all respects with regards to Affiant and other LFT beneficiaries pursuing an action for transparency of the LFT accountings as compiled and presented by Grant Thornton, LLP partner, accountant and LFT Trustee, James L. Murphy. By failing to rule on Affiant's Motion for Declaratory Relief, substantial time and resources have been needlessly expended by this LFT beneficiary to enforce his rights to and under the LFT, obtain true, correct, complete and accurate accountings and supporting documents thereto. Judge Peter I. Breen has displayed a bent of mind and prejudice when stating he refused to look at any accountings prior to 2000 even though (1) substantial probable cause and evidence of misaccountings and unaccounted for properties have been presented to him, (2) the LFT accountings from 1983 through 2000, inclusive, were not provided to this Affiant and other LFT remaindermen either by the LFT Trustees or by this Court, as required by law. NRS §165.100. 83. Judge Peter I. Breen has abused his discretion by issuing capricious Orders without conclusions of fact or law, effectively impairing LFT Remaindermen beneficiaries' rights to a fair review of this Court's decision at the appellate level. 84. Judge Peter I. Breen has failed and refused to take cognizance of the law and exercise the law while knowing that he had an affirmative duty to ensure that all interested parties were served with due process and while being informed of the violations of LFT remaindermen beneficiaries rights, took no corrective action and attempted to conceal the Court's role and complicity in the violations. 85. Judge Peter I. Breen has refused to rule on Affiant's and Affiant's brother, Christian William Lear's Motion for Declaratory Relief, thereby extending the time and money spent on litigating this matter and providing Judge Peter I. Breen greater latitude in ruling capriciously against the rights of Affiant and others similarly situated while denying them a clear Order settling their rights in accordance with right and justice, in a timely and efficient manner. 86. Judge Peter I. Breen falsified the Court record by entering ex-parte letters of November 4, 2004 and November 16, 2004 into the record when none of the parties entered the secret communications as exhibits until February 1, 2005. 87. Judge Peter I. Breen, when finally provided with substantial evidence and reason to set aside the accountings of the LFT from 1978 through 2003, threatened to sanction Affiant with "big money" if Affiant were ever to file such a voluminous document and directed Affiant during a scheduling meeting to file a summary. 88. Judge Peter I. Breen has failed, neglected and refused to enforce the laws of the State of Nevada, particularly NRS 165.030 through NRS 165.120 in violation of this Court's own Orders of August 13, 1982 and August 23, 1983 which direct that the LFT is to be administered according to NRS Chapter 163, NRS Chapter 164 and NRS 165.030 through NRS 165.120. See in particular, Petition to Set Aside Accountings and June 2, 2005 Order denying Petition for ex-parte Order to Compel Accounting for the year 2004. Judge Peter I. Breen's June 2, 2005 Order shows Judge Breen's willful disregard for the law and effectively constitutes misfeasance. 89. Due to his previous participation in the instant case, Judge Peter I. Breen has a certain bias, prejudice and interest in obstructing and abridging Affiants' rights and interests in and to the LFT. 90. In addition to all of the statements made herein, Judge Peter I. Breen is in business with a partner from Grant Thornton, LLP who is a named party in the LFT litigation and has not only refused to go back prior to the year 2000 and has also refused to order Grant Thornton, LLP and the LFT Trustees to produce the accountings for 2004 while knowing that they are over three months beyond the statutory requirement set forth under NRS §165.040. RESERVATION OF RIGHTS Affiant reserves the right to take such further action as necessary. Affiant also reserves the right and intends to bring Judge Peter I. Breen into the case to testify as to his prior knowledge of the case, his relationship with Grant Thornton, LLP's Brian Wallace and other matters. PRAYER WHEREFORE, pursuant to NRS §1.235, Affiant moves that Judge Peter I. Breen immediately recuse himself. VERIFICATION I, Patrick Christopher Lear am a beneficiary and Petitioner in case #PR78-2800 pending before this Court. The statements of fact made in the foregoing Affidavit of Disqualification for Actual Bias and Prejudice and Conflict of Interest are true and correct to the best of my knowledge and belief. Dated this _9th____ day of ____June____________, 2005.
_______<signed>____________________ Patrick Christopher Lear in Propria persona 1805 North Carson Street #120 Carson City, Nevada 89701 Tel: 775-721-9643 Fax: 775-884-4211
Before me, the undersigned authority, on this day personally appeared , known to me to be the one whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same. Given under my hand and seal of office on this st day of , 2005. NOTARIZED __________________________________ Notary TABLE OF EXHIBITS
[1] Judicial Conduct and Ethics, 2nd Edition, (MICHIE Law Publishers) Charlottesville, Virginia, 1995, page 150. |
