For Immediate Release
Soliciting Intervenors in the federal case, Palmer v. Jones et al. 11-CV-1896, in the District Court of Arizona
++++++++++++++++++
In honor of Michael Roth, of Quartzsite Arizona, who had his 2nd Amendment right revoked simply for calling someone a "turd," Mike Palmer is suing the Justices of the Arizona Supreme Court, in their official capacity, to get his 2nd Amendment right back.
As with Roth, Palmer recently had his 2nd Amendment right revoked via a Civil Injunction Against Harassment - for blogging! In addition, Palmer's name has been put on the FBI's National Crime Information Center database, essentially reducing him to a criminal felon, all via a purely civil procedure! And, as with Roth, an ex parte (one sided) action at that.
Worse, there is no law in Arizona allowing courts to do this. The Arizona Supreme Court made up its own "law!" (So this is also a Constitutional issue in Arizona - the Court, by making law, is violating Arizona's Article III, Distribution of Powers. Your Legislator should be involved in this suit.)
Palmer fought this once in court. And won. After finding the cause of the confusion, he petitioned the Arizona Supreme Court to repeal its unlawful rule. The Court refused, but admitted Palmer's arguments had some merit and would be forwarded to a subcommittee for consideration.
Nothing happened, so now a Federal Civil rights lawsuit to force the Arizona Supreme Court to obey the law. The case is still in its infancy. A complaint has been filed. It is 11-CV-1896, Palmer v. Jones, et al. in the District Court of Arizona.
Palmer is soliciting Intervenors for his suit. Others who have, or are, the victims of the same constitutional deprivation; gun right groups who wish to protect their members in the future; Congressmen and Senators of Arizona.
Palmer can be reached at 602-513-3738.
Monday, October 31, 2011
Friday, October 21, 2011
Judge Snow: "What I have written, I have written."
Our blogger got a terse, less than one page order from Judge Snow, rejecting the Motion for Reconsideration. Judge Snow didn't even bother to deal with the alternative Motion to Clarify. In his short Order affirming his previous ruling, his reasoning, in essence was, "Because I said so." (We empathize with Dr. Orly Taitz and her efforts to get justice in court.)
Why is that that, just last month, Judge Snow granted a Preliminary Injunction for Arizona residents who sued a branch of government (the executive) for an alleged constitution deprivation (First Amendment) but won't grant our blogger the same? Our blogger is also suing a branch of government (the judicial) for an actual constitutional deprivation (Second Amendment). One would think if our dumb pro se's motion was so refutable it would have been an easy matter for Judge Snow to refute at least a part of it.
So what to make of Judge Snow's short order? While you cannot make an argument from silence, our blogger thinks Judge Snow's silence will make it easier to refute him in an Emergency Interlocutory Appeal to the Ninth's Motion Panel, which is planned next. (Notice of Appeal filed today.) It turns out that Judge Snow overlooked a very on-point ruling from the Ninth Circuit, recently cited when the Ninth Circuit shot down parts of Arizona's controversial SB1070.
To quote the Ninth,
If any attorneys have jumped through the hoops of actually filing an Emergency Appeal to the Ninth's Motion Panel, our blogger would appreciate some guidance. (It's amazing that Jared Loughner, the Tucson Murderer, has already had three or four.) Our blogger can write the arguments and certifications. But it's the little things like having the wrong color paper can trip one up. So any guidance from someone who's been there, done that would be appreciated. Please leave your contact info via a comment. (All comments are moderated, so your info will not be published.)
We'll plan to post the Appeal as soon as it's filed.
Why is that that, just last month, Judge Snow granted a Preliminary Injunction for Arizona residents who sued a branch of government (the executive) for an alleged constitution deprivation (First Amendment) but won't grant our blogger the same? Our blogger is also suing a branch of government (the judicial) for an actual constitutional deprivation (Second Amendment). One would think if our dumb pro se's motion was so refutable it would have been an easy matter for Judge Snow to refute at least a part of it.
So what to make of Judge Snow's short order? While you cannot make an argument from silence, our blogger thinks Judge Snow's silence will make it easier to refute him in an Emergency Interlocutory Appeal to the Ninth's Motion Panel, which is planned next. (Notice of Appeal filed today.) It turns out that Judge Snow overlooked a very on-point ruling from the Ninth Circuit, recently cited when the Ninth Circuit shot down parts of Arizona's controversial SB1070.
To quote the Ninth,
The Ninth Circuit Court of Appeals has stated "'that an alleged constitutional infringement will often alone constitute irreparable harm.'" Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (quoting Assoc. Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equal., 950 F.2d 1401, 1412 (9th Cir. 1991)). Indeed, if an individual or entity faces the imminent threat of enforcement of a preempted state law and the resulting injury may not be remedied by monetary damages, the individual or entity is likely to suffer irreparable harm. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992) (stating that a federal court may properly enjoin “state officers ‘who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution’” (quoting Ex parte Young, 209 U.S. 123, 156 (1908)); New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 366-67 (1989) (suggesting that irreparable injury is an inherent result of the enforcement of a state law that is preempted on its face); Edmondson, 594 F.3d at 771 (concluding that plaintiff is likely to suffer irreparable injury if enforcement of state law that is likely preempted by IRCA and IIRIRA is not enjoined); Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 858, 878 (N.D. Tex. 2008) (concluding that there is a likelihood of irreparable injury if enforcement of a city ordinance that is preempted by the INA is not enjoined).This paragraph from the Ninth will be the final trust of our blogger's interlocutory appeal. He has not suffered an alleged constitutional infringement, but quoting the Second Amendment, our blogger's right to keep and bear arms has in fact been infringed. And that absent state law!
If any attorneys have jumped through the hoops of actually filing an Emergency Appeal to the Ninth's Motion Panel, our blogger would appreciate some guidance. (It's amazing that Jared Loughner, the Tucson Murderer, has already had three or four.) Our blogger can write the arguments and certifications. But it's the little things like having the wrong color paper can trip one up. So any guidance from someone who's been there, done that would be appreciated. Please leave your contact info via a comment. (All comments are moderated, so your info will not be published.)
We'll plan to post the Appeal as soon as it's filed.
Monday, October 10, 2011
What is Judge Snow thinking?
On Friday, our blogger filed an Emergency Motion to Reconsider Judge Snow's refusal to grant a TRO.
There are quite a few logical inconsistencies in Judge Snow's Order. The fatal one is that, if one were to follow Judge Snow's order (that he will abstain from this matter, letting the state court rule first), then not even the Justices of the Arizona Supreme Court are legally allowed to hear this case! (See Fatal Flaw.)
Another inconsistency: just last month, Judge Snow granted a TRO to Arizona residents who sued the executive branch for alleged constitutional deprivations. Whereas, in this instant matter, Judge Snow denied a TRO to a resident suing the judicial branch for actual constitutional deprivation! (See "As to Clarification.") So, what's the difference?
This seems prejudicial. Our blogger has asked Judge Snow to clarify the differences. (If any.) In fact, our blogger points out a few other basic errors by Judge Snow. These hint at prejudice. (See Endnotes)
It seems like this may be a case of first impression, headed for an Emergency Action in the Ninth Circuit if Judge Snow doesn't reverse himself. (If any attorneys reading this have jumped through the procedural hoops of getting an Emergency TRO in the Ninth (as with SB 1070 or Jared Lee Loughner), we could sure use some guidance. We can make the legal arguments. Just need to know how to file the paperwork properly.)
Also, it occurs to us that our blogger and Michael Roth can't be the only ones who have suffered a constitutional deprivation caused by the Arizona Supreme Court's basis Rule. There must be thousands.
If you have suffered an unlawful gun deprivation as a result of an Injunction Against Harassment and are interested in participating in this lawsuit, please leave your contact information in a comment. Perhaps we can move this to "Class Action" status and make it more important than just one man's battle. (You can remain anonymous if you comment.) Only attorneys can get any money for participating, but you'll be helping your fellow man.
Below are excerpts from the Motion for Reconsideration. Or you can download the full PDF version of the Motion, complete with footnotes and exhibits, both which add a lot of color to this picture.
The need for emergency consideration continues by extension since TRO's are emergency matters and because Plaintiff's life is in danger every day the status quo is not restored, every day he is deprived of his right to defend himself, his loved ones, or his fellow man. There is real, literal potential irreparable harm here. In fact, this past Sunday, there were two reported murders in Phoenix, one within a mile of Plaintiff.
OVERVIEW
It occurs to pro se Plaintiff that suing the Justices of a state Supreme Court for constitutional violations may be a case of first impression and may set a precedent showing the Abstention Doctrine can never be an option in such a matter and a federal court must always take jurisdiction in such a matter.
The Court has denied granting Plaintiff a TRO in this matter, ultimately choosing to abstain from exercising jurisdiction, citing Railroad Comm 'n of Texas v. Pullman Co. Ignoring for now that Railroad is yellow-flagged on Westlaw and is not on point for this instant matter [EN1], abstention is not an option. Plaintiff will show that the Court's decision to abstain in this unique matter, with these unique defendants, violates an axiom of jurisprudence and is, therefore, illogical. Not only in theory, but in practice. Therefore, the Court's ruling cannot be correct and must be reconsidered.
Once Plaintiff has shown that error, Plaintiff will politely point out other manifest errors in the Court's Order, to aid the Court's reconsideration to grant Plaintiff his requested TRO.
Because the Standard of Review to issue a Preliminary Injunction is essentially the same as for a Temporary Injunction, it seems best to make a motion for reconsideration now, in the interest of judicial economy, since, if unchallenged, the Court will likely make the same ruling in the upcoming hearing for a Preliminary Injunction.
While Plaintiff can see that he may have to appeal to the Ninth on an Emergency basis for remedy, this need not be the case. For ironically, this same Court (GMS), just last month, granted a TRO for Arizona residents who also sued a branch of the state government, citing similar constitutional deprivations. But in that matter, this Court did not abstain. Nor did this Court tell those Plaintiffs to take their constitutional issues to the state judicial branch first. This Court took jurisdiction and applied the standard of review to grant a TRO. As both cases are the same in the abstract, both suing government agents for harmful unconstitutional deprivations, this Plaintiff is at a loss to understand why he did not get the same outcome as the others. If the Court will not reconsider and grant Plaintiff a TRO, then I ask the Court to clarify the distinctions between the two cases.
MEMORANDUM OF POINTS AND AUTHORITIES
Fatal Flaw, Part I
The Court's decision "to abstain from exercising its jurisdiction until the state courts have had the opportunity to [rule]" is fatally flawed and cannot stand because it violates an ancient axiom of jurisprudence.
It is axiomatic that “[a] fair trial in a fair tribunal is a basic requirement of due process.” Consistent with this, it is also axiomatic, and recently reaffirmed in the SCOTUS, that "no man is allowed to be a judge in his own cause." (Id.)
But this Court is telling Plaintiff to take this matter to the defendants he is suing, and let the defendants—who are judges—be judges in their own cause! Literally! This is not right!
Let's apply this to real life to see how it would work in a recent high profile case in the District of Arizona. Consider the ACLU's challenge to Arizona's controversial SB 1070. Had the ACLU moved this Court for a Preliminary Injunction to stop SB 1070 (as, in fact, it did in Judge Bolton's court), this Court would tell the ACLU to take up its fight against SB1070 first with the Executive, exhausting its remedies there. (Perhaps by proving to the Executive that parts of SB1070 are unconstitutional? But of course, the Executive obviously believed SB 1070 was constitutional or else it wouldn't have approved it.) Or this Court would tell the ACLU to vote the Executive out of office and change the law that way. Or this Court would tell the ACLU to take its constitutional challenge of SB 1070 to the Arizona Supreme Court first. And only if those remedies fail, then, and only then, will the federal court intervene.
But, quite properly, the judge in this District did not abstain from jurisdiction. Nor did the judge in this District tell the ACLU to exhaust its remedies first by challenging SB 1070 in the Arizona Supreme Court before going federal. (Which, in contrast, is what this Court is telling me to do.) No, there were alleged federal constitutional issues which were rightly tried in this District Court and upheld in the Ninth Circuit. (I parenthetically add that the federal court blocked parts of SB 1070 before it went into effect, before anyone suffered actual harm. I will touch on this later in discussing the Second Amendment and irreparable harm.)
One hopes even the defendant judges will see the illogic in this Court's abstention ruling. For, by law (Rule 2.11 of the Arizona Code of Judicial Conduct), Defendants must recuse themselves from sitting on this matter because they have a personal bias, since they are the defendants I am suing. And so both in theory and practice, there can be no remedy at the state level when a state's highest court judges are sued for constitutional violations. They cannot judge their own cause and consistent with this, they are prevented from hearing their own case. As there is no higher court in the state, suing a state's highest judges may make this case unique and a case of first impression, making federal intervention mandatory.
Fatal Flaw, Part II
Further, this Court is saying that the defendant Justices should determine, for example, whether they are in violation of Count Five for violating Article III of the Arizona Constitution (Distribution of Powers) for making and enforcing a "law." I respectfully submit that it makes no sense to ask a State court if it is violating the State's constitution.
The Judicial Branch is the only branch in Arizona government that has the authority to rule as to what is constitutional or not. And the State Supreme Court is the highest court in the state. But this federal court is ultimately telling Plaintiff that I must first go to the Justices of the Arizona Supreme Court to see if they will rule as unconstitutional a Rule they have already issued as constitutional. Again, to require the defendant Justices to rule on whether they are obeying the state constitution is to allow them to be judges in their own cause.
Besides, I've already challenged the Supreme Court on the unconstitutionality of its unlawful rule in a public forum. Why would the result be any different in another pubic forum, especially when they're being sued?
No, abstention is not viable here. There is no one in the state who can review the actions of the state's highest court. Therefore, the federal court must take jurisdiction whenever a state court is accused of making an unconstitutional law.
Court narrowly focused
If I may politely say, the Court did not articulate all the facts of this case in its Analysis and has completely overlooked the 800 pound gorilla in the room. Namely, if I read it right, the Court is narrowly focusing on only First Amendment issues while totally ignoring the larger, 800 pound seminal issue of the Second Amendment deprivation via the Arizona Supreme Court's ARPOP Rule 6(E)(4)(e)(2).
Pro se Plaintiff is learning to think like a lawyer and can kinda-sorta see the Court's narrowly tailored point, that, ignoring the fact that defendants unlawfully deprived me of my constitutional Second Amendment right—that if this were solely a First Amendment issue—this matter might not yet be ripe for federal intervention because I might be able to prevail challenging the Injunction in a state hearing, citing the on-point cites from the SCOTUS and the Ninth (ZAC, para 26 & 27). If so, we might not be here today.
But this matter is ripe because defendants did, absent law, deprive me of my Second Amendment right. This is incontrovertible and this is what makes this a federal issue. Besides, the Arizona Supreme Court's unconstitutional rule affects all Arizonans, making this ripe with public interest.
Focusing on the Second Amendment
From the Court's claim that I have not met the burden of Rule 65(b) (Doc. 4, p2, lines 6-7), the implication seems to be that an unconstitutional Second Amendment deprivation does not constitute irreparable harm. I will show later, based on a recent ruling from this same Court granting a TRO for a similar unconstitutional deprivation, that a Second Amendment must constitute irreparable harm, just as a Fourth or Fifth Amendment deprivation was so deemed to negate portions of Arizona's SB 1070.
Perhaps the time is ripe for a court to rule on this. It was only recently that the SCOTUS reversed the Liberal's belief that the Second Amendment was not a fundamental, individual right but only attached to Militias. (McDonald v. Chicago.) So, for the record, Plaintiff needs clarification from this Court in the form of a yes or no ruling: Does an unconstitutional deprivation of one's Second Amendment right constitute irreparable harm, especially when Plaintiff has changed his "course of conduct" as a proximate result of being deprived of his right to keep and bear arms? This is seminal to consideration of this instant TRO. (The court may wish to extend "harm" to a fellow citizen who may be harmed during an armed car-jacking if another good citizen cannot help because he has been deprived of his constitutional right to bear arms.)
More ripe fruit
Back to ripeness and the need for federal intervention: Counts Five, Six, Eight. Ten, and Eleven, which are a proximate result of the Arizona Supreme Court's unlawful Rule 6(E)(4)(3)(2) can only be resolved in federal court. There is no higher court in the state that can hold the state Supreme Court accountable to la or adjudicate these matters.
Public Interest
Further, the motivation behind this federal suit is not simply to remedy my constitutional rights to keep and bear arms in an Injunction, but, in the public interest, to ensure no Arizonan suffers harm in the future. There is a huge element of public interest here. This Court needs to intervene to order the Justices of the Arizona Supreme Court to repeal its baseless ARPOP Rule 6(E)(4)(3)(2).
In fact, while writing this motion, Phoenix radio station KFYI talk show host Mike Broomhead covered this story. Nationally, this case has been reported on the Internet by World Net Daily. Arizona's Mr. Broomhead, having read the amended complaint for himself, expressed his concern that, as a controversial radio talk show host, he could find himself similarly facing an unconstitutional deprivation of his gun rights simply because a listener got a judge to sign off on an ex parte petition.
As to Clarification
Given all the above, this Court's Order cannot stand. Naturally, Plaintiff desires that this Court will reconsider and reverse itself and grant Plaintiff his TRO. But if it does not, Plaintiff asks this Court to rehearse the Standard of Review for a TRO as it did when it granted a TRO in a similar matter last month. And if it does not grant the TRO, to clarify the reason(s) why not.
I refer the Court to UNITED FOOD AND COMMERCIAL WORKER LOCAL 99 et al., v (Governor) Jan BREWER, CV-11-921-GMS. (Exhibit A)
In United, as here, Arizona residents sued a branch of the state government in its official capacity. Plaintiffs there sued the executive, whereas I am suing the judicial. This Court accept jurisdiction in United. But not here.
At issue there was a state law which was to go into effect, that Plaintiffs alleged was unconstitutional. Here, Plaintiff is challenging a "state 'law,'" already in effect, promulgated and enforced by the judicial branch. (Which, on its face, according to both common sense and Article III of the Arizona Constitution (Distribution of Power) is patently unconstitutional. Pro se Plaintiff surmises it was never foreseen that a Supreme Court would make and enforce a law, and this may be a first.) This Court accepted jurisdiction in United. But not here.
In United, as here, Plaintiffs alleged a violation of a right enumerated in the Bill of Rights. Even though Plaintiffs in United had not suffered harm (the law not having been put into effect) this Court ruled that a "court may hear a constitutional challenge to a law that has not yet been enforced when 'the plaintiff intends to engage in "a course of conduct arguably affected with a constitutional interest" and that there is a credible threat that the challenged provision will be invoked against the plaintiff.'"
Here, Plaintiff has, in fact, engaged in a course of conduct that has, in fact, been affected with constitutional interests (ZAC para 6). Here, the threat has actually been invoked against the Plaintiff. The Court accepted jurisdiction in United. But not here.
In United, the Court noted that “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury" and that "the harms they would suffer should SB 1365 go into effect are irreparable per se."
This pro se Plaintiff is at a loss to understand how, if the loss of First Amendment freedoms (for even minimal periods of time) constitutes irreparable injury, the same is not true for the loss of Second Amendment freedoms. Especially in light of this Court's observation from the above case that one does not have to prove harm but that it is only likely. (“that irreparable injury is likely in the absence of an injunction.”) Especially since, as I've argued before, the result of not being able to defend oneself (or others) from violent crime can result in literal irreparable harm. Not only to Plaintiff but to the public.
In the above case, the Court took the time to rehearse the legal standards in issuing a Preliminary Injunction. And granted the Injunction. Here, the Court is silent, simply stating I have not met the burden of satisfying Rule 65(b). Unlike other federal judges in my research (Chief Judge Ted Stewart of the District of Utah, for example), this Court did not document any specific defects, nor offer guidance as to how this pro se can cure those defects. Here the Court simply jumps from "not met the burden of Rule 65(b)" to abstention.
I am at a loss to understand how two similar cases can have two antithetical outcomes, especially since, arguably, mine has more meat showing harm and unconstitutional deprivations. It the difference in the parties?
Endnotes
The Court may skip to the "Wherefore" if it wishes. What follows should be moot, since I have shown that abstention is not viable because state judges cannot be judges in their own cause. Nevertheless, because a right is deemed waived if no objection, and because an argument not raised in District Court is waived on appeal, for the sake of completeness in anticipation of an appeal:
Taken if true, Part I
It is my understanding, as a pro se litigant, that Plaintiff's "factual allegations are taken as true and construed in the light most favorable to the plaintiff." Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). But when I tell the Court, as a statement of fact, that the ten day "expedited" hearing to challenge a civil Injunction against Harassment is patently unconstitutional and therefore, not a remedy, this Court tells me that's false. (Doc. 4, p2, line 26 to p3, line 6.) There are two issues here: 1) the fallacy that truth will prevail in court and 2) the fallacy that ten days is enough time to gather material evidence for a defense.
As to the first, while I suppose I should be pleased that this Court believes my legal constitutional arguments (which ones? First Amendment? Second Amendment?) should prevail if I challenged the Injunction in state, that is no guarantee and not a viable remedy. This Court knows that courts are arbitrary and capricious. Sadly, our justice system is often like a game of Poker. You can have the best hand. You can play your cards just right. But you can still lose.
To wit, not even federal judges in different Districts agree on the constitutionality of ObamaCare, even when considering the same arguments. Sometimes different plaintiffs get different results from the same judge. Having a "legitimate basis" or having the truth does not guarantee one will prevail in court. (Cf. Pilate v Jesus.) I proved this when I petitioned the Arizona Supreme Court to repeal it's unlawful Rule 6(E)(4)(e)(2). My "legitimate" argument was rejected, even though the Justices acknowledged some of my arguments were worthy of consideration.
Further, challenging the lawfulness of Rule 6(E)(4)(e)(2) in any lower court is pointless. A lower court cannot (and will not) invalidate a Rule made by the Supreme Court.
As to the second fallacy, this Court knows that, if I had to appeal a lower court's decision, appellate courts do not accept new evidence or new facts. A defendant has to have ALL his ducks in the initial appearance to make them available on appeal. I have already told this Court why ten days does not constitutionally qualify as "due process." In my amended complaint, I added the fact that Mr. Bodine would have to move the Arizona court for leave to Intervene (or something like that) because defendant Jones' Injunction unlawfully modifies father's visitation rights. (See ZAC, FN 11 and Exhibit B, attached, for support.) As a new fact, I called Mr. Bodine the other day and asked him how long he thought it would take him to prepare such a motion. Never having done it before, he guessed "three weeks." Further, he travels a lot on business, so even if his ex-wife does not challenge his motion for leave to Intervene, it may be a while before a trial can be had where he can participate. And I would need to subpoena some of the adult children to be hostile witnesses, which takes time. As I told this Court in my complaint, there is no way a zealous defense can be mounted in ten days and Arizona's expedited hearing is illusionary.
Moreover, this Court has forgotten the realities of litigation. If I lose in the first round, it will cost me a few hundred dollars for a certified transcript of the court proceedings, a necessity in Arizona for an appeal. But there is no remedy to recover this cost from a petitioner if I prevailed in vacating the Civil Injunction. So an appeal automatically causes irreparable harm to Plaintiff. This violates due process and equal protection under law. (It's not equal because petitioner can file before the court at no cost or bond requirement, but doing so can automatically cost a "victim" hundreds of dollars to challenge. Michael Roth (of Quartzsite), cited in my ZAC, paid an attorney $1000 to defend a vacated Injunction.)
Taken if true, Part II
Along similar lines (and please forgive me if I am wrong. It is hard to read inflection in the written word), this Court seems to question my claim that my name has been placed in the FBI's NCIC database. (Not that it "will be placed" as the Court said, but it has been placed. (Doc. 4. p2, line 24).)
Again, I assumed the Court would take what I said as true and did not think it would be necessary to supply this evidence. But in case there is genuine controversy here, I supply Exhibit C, a copy of JP Judge Mary Hamm's "Notice to Sheriff of Brady Disqualification."
Please see the line "and should be assigned a positive Brady Record Indicator in the Protection Order File of the National Crime Information Center database."
For the nth time, I point out that this is patently unlawful and a violation of my constitutional right to due process, since I was never served with, nor found to be in violation of, a Title 13 Criminal Order of Protection. There must be countless other Arizonan who have been victimized by the Arizona Supreme Court because of this. The federal court is the proper forum to stop the abuse.
Since putting my name in the database was the procedure in my first Injunction, there is good cause to believe it is still procedure and has happened again.
Even if , despite all the arguments above there was somehow a viable remedy at the state level to resolve all the constitutional claims here; or, even if, defendant Jones were to vacate the Injunction against me, the damage has been done. The State does not have the power to grant me an audit of the FBI's NCIC database, nor does the state have the power to order the FBI to remove my name from the database if stuck there. As far as I know, only a federal court can grant that remedy.
There are quite a few logical inconsistencies in Judge Snow's Order. The fatal one is that, if one were to follow Judge Snow's order (that he will abstain from this matter, letting the state court rule first), then not even the Justices of the Arizona Supreme Court are legally allowed to hear this case! (See Fatal Flaw.)
Another inconsistency: just last month, Judge Snow granted a TRO to Arizona residents who sued the executive branch for alleged constitutional deprivations. Whereas, in this instant matter, Judge Snow denied a TRO to a resident suing the judicial branch for actual constitutional deprivation! (See "As to Clarification.") So, what's the difference?
This seems prejudicial. Our blogger has asked Judge Snow to clarify the differences. (If any.) In fact, our blogger points out a few other basic errors by Judge Snow. These hint at prejudice. (See Endnotes)
It seems like this may be a case of first impression, headed for an Emergency Action in the Ninth Circuit if Judge Snow doesn't reverse himself. (If any attorneys reading this have jumped through the procedural hoops of getting an Emergency TRO in the Ninth (as with SB 1070 or Jared Lee Loughner), we could sure use some guidance. We can make the legal arguments. Just need to know how to file the paperwork properly.)
Also, it occurs to us that our blogger and Michael Roth can't be the only ones who have suffered a constitutional deprivation caused by the Arizona Supreme Court's basis Rule. There must be thousands.
If you have suffered an unlawful gun deprivation as a result of an Injunction Against Harassment and are interested in participating in this lawsuit, please leave your contact information in a comment. Perhaps we can move this to "Class Action" status and make it more important than just one man's battle. (You can remain anonymous if you comment.) Only attorneys can get any money for participating, but you'll be helping your fellow man.
Below are excerpts from the Motion for Reconsideration. Or you can download the full PDF version of the Motion, complete with footnotes and exhibits, both which add a lot of color to this picture.
11-CV-1896-PHX-GMS
PLAINTIFF'S EMERGENCY MOTION
FOR RECONSIDERATION
OR ALTERNATIVELY
MOTION FOR CLARIFICATION
OF JUDGE SNOW'S
DENIAL OF TRO
Pursuant to LRCiv 7.2(g), citing manifest error & new evidence; and in the interest of justice & judicial economy, Plaintiff moves Judge Snow to reconsider and reverse his Order denying Plaintiff's Temporary Restraining Order (Doc. 4). Or, alternatively, to state for the record where "Plaintiff has not met the burden of Fed.R.Civ.P 65(b)." (Id. p2, line 7) This Motion is supported by the following Memorandum of Points and Authorities as well as Plaintiff's recently filed Zeroth Amended Complaint ("ZAC," Doc. 5)PLAINTIFF'S EMERGENCY MOTION
FOR RECONSIDERATION
OR ALTERNATIVELY
MOTION FOR CLARIFICATION
OF JUDGE SNOW'S
DENIAL OF TRO
The need for emergency consideration continues by extension since TRO's are emergency matters and because Plaintiff's life is in danger every day the status quo is not restored, every day he is deprived of his right to defend himself, his loved ones, or his fellow man. There is real, literal potential irreparable harm here. In fact, this past Sunday, there were two reported murders in Phoenix, one within a mile of Plaintiff.
OVERVIEW
It occurs to pro se Plaintiff that suing the Justices of a state Supreme Court for constitutional violations may be a case of first impression and may set a precedent showing the Abstention Doctrine can never be an option in such a matter and a federal court must always take jurisdiction in such a matter.
The Court has denied granting Plaintiff a TRO in this matter, ultimately choosing to abstain from exercising jurisdiction, citing Railroad Comm 'n of Texas v. Pullman Co. Ignoring for now that Railroad is yellow-flagged on Westlaw and is not on point for this instant matter [EN1], abstention is not an option. Plaintiff will show that the Court's decision to abstain in this unique matter, with these unique defendants, violates an axiom of jurisprudence and is, therefore, illogical. Not only in theory, but in practice. Therefore, the Court's ruling cannot be correct and must be reconsidered.
Once Plaintiff has shown that error, Plaintiff will politely point out other manifest errors in the Court's Order, to aid the Court's reconsideration to grant Plaintiff his requested TRO.
Because the Standard of Review to issue a Preliminary Injunction is essentially the same as for a Temporary Injunction, it seems best to make a motion for reconsideration now, in the interest of judicial economy, since, if unchallenged, the Court will likely make the same ruling in the upcoming hearing for a Preliminary Injunction.
While Plaintiff can see that he may have to appeal to the Ninth on an Emergency basis for remedy, this need not be the case. For ironically, this same Court (GMS), just last month, granted a TRO for Arizona residents who also sued a branch of the state government, citing similar constitutional deprivations. But in that matter, this Court did not abstain. Nor did this Court tell those Plaintiffs to take their constitutional issues to the state judicial branch first. This Court took jurisdiction and applied the standard of review to grant a TRO. As both cases are the same in the abstract, both suing government agents for harmful unconstitutional deprivations, this Plaintiff is at a loss to understand why he did not get the same outcome as the others. If the Court will not reconsider and grant Plaintiff a TRO, then I ask the Court to clarify the distinctions between the two cases.
MEMORANDUM OF POINTS AND AUTHORITIES
Fatal Flaw, Part I
The Court's decision "to abstain from exercising its jurisdiction until the state courts have had the opportunity to [rule]" is fatally flawed and cannot stand because it violates an ancient axiom of jurisprudence.
It is axiomatic that “[a] fair trial in a fair tribunal is a basic requirement of due process.” Consistent with this, it is also axiomatic, and recently reaffirmed in the SCOTUS, that "no man is allowed to be a judge in his own cause." (Id.)
But this Court is telling Plaintiff to take this matter to the defendants he is suing, and let the defendants—who are judges—be judges in their own cause! Literally! This is not right!
Let's apply this to real life to see how it would work in a recent high profile case in the District of Arizona. Consider the ACLU's challenge to Arizona's controversial SB 1070. Had the ACLU moved this Court for a Preliminary Injunction to stop SB 1070 (as, in fact, it did in Judge Bolton's court), this Court would tell the ACLU to take up its fight against SB1070 first with the Executive, exhausting its remedies there. (Perhaps by proving to the Executive that parts of SB1070 are unconstitutional? But of course, the Executive obviously believed SB 1070 was constitutional or else it wouldn't have approved it.) Or this Court would tell the ACLU to vote the Executive out of office and change the law that way. Or this Court would tell the ACLU to take its constitutional challenge of SB 1070 to the Arizona Supreme Court first. And only if those remedies fail, then, and only then, will the federal court intervene.
But, quite properly, the judge in this District did not abstain from jurisdiction. Nor did the judge in this District tell the ACLU to exhaust its remedies first by challenging SB 1070 in the Arizona Supreme Court before going federal. (Which, in contrast, is what this Court is telling me to do.) No, there were alleged federal constitutional issues which were rightly tried in this District Court and upheld in the Ninth Circuit. (I parenthetically add that the federal court blocked parts of SB 1070 before it went into effect, before anyone suffered actual harm. I will touch on this later in discussing the Second Amendment and irreparable harm.)
One hopes even the defendant judges will see the illogic in this Court's abstention ruling. For, by law (Rule 2.11 of the Arizona Code of Judicial Conduct), Defendants must recuse themselves from sitting on this matter because they have a personal bias, since they are the defendants I am suing. And so both in theory and practice, there can be no remedy at the state level when a state's highest court judges are sued for constitutional violations. They cannot judge their own cause and consistent with this, they are prevented from hearing their own case. As there is no higher court in the state, suing a state's highest judges may make this case unique and a case of first impression, making federal intervention mandatory.
Fatal Flaw, Part II
Further, this Court is saying that the defendant Justices should determine, for example, whether they are in violation of Count Five for violating Article III of the Arizona Constitution (Distribution of Powers) for making and enforcing a "law." I respectfully submit that it makes no sense to ask a State court if it is violating the State's constitution.
The Judicial Branch is the only branch in Arizona government that has the authority to rule as to what is constitutional or not. And the State Supreme Court is the highest court in the state. But this federal court is ultimately telling Plaintiff that I must first go to the Justices of the Arizona Supreme Court to see if they will rule as unconstitutional a Rule they have already issued as constitutional. Again, to require the defendant Justices to rule on whether they are obeying the state constitution is to allow them to be judges in their own cause.
Besides, I've already challenged the Supreme Court on the unconstitutionality of its unlawful rule in a public forum. Why would the result be any different in another pubic forum, especially when they're being sued?
No, abstention is not viable here. There is no one in the state who can review the actions of the state's highest court. Therefore, the federal court must take jurisdiction whenever a state court is accused of making an unconstitutional law.
Court narrowly focused
If I may politely say, the Court did not articulate all the facts of this case in its Analysis and has completely overlooked the 800 pound gorilla in the room. Namely, if I read it right, the Court is narrowly focusing on only First Amendment issues while totally ignoring the larger, 800 pound seminal issue of the Second Amendment deprivation via the Arizona Supreme Court's ARPOP Rule 6(E)(4)(e)(2).
Pro se Plaintiff is learning to think like a lawyer and can kinda-sorta see the Court's narrowly tailored point, that, ignoring the fact that defendants unlawfully deprived me of my constitutional Second Amendment right—that if this were solely a First Amendment issue—this matter might not yet be ripe for federal intervention because I might be able to prevail challenging the Injunction in a state hearing, citing the on-point cites from the SCOTUS and the Ninth (ZAC, para 26 & 27). If so, we might not be here today.
But this matter is ripe because defendants did, absent law, deprive me of my Second Amendment right. This is incontrovertible and this is what makes this a federal issue. Besides, the Arizona Supreme Court's unconstitutional rule affects all Arizonans, making this ripe with public interest.
Focusing on the Second Amendment
From the Court's claim that I have not met the burden of Rule 65(b) (Doc. 4, p2, lines 6-7), the implication seems to be that an unconstitutional Second Amendment deprivation does not constitute irreparable harm. I will show later, based on a recent ruling from this same Court granting a TRO for a similar unconstitutional deprivation, that a Second Amendment must constitute irreparable harm, just as a Fourth or Fifth Amendment deprivation was so deemed to negate portions of Arizona's SB 1070.
Perhaps the time is ripe for a court to rule on this. It was only recently that the SCOTUS reversed the Liberal's belief that the Second Amendment was not a fundamental, individual right but only attached to Militias. (McDonald v. Chicago.) So, for the record, Plaintiff needs clarification from this Court in the form of a yes or no ruling: Does an unconstitutional deprivation of one's Second Amendment right constitute irreparable harm, especially when Plaintiff has changed his "course of conduct" as a proximate result of being deprived of his right to keep and bear arms? This is seminal to consideration of this instant TRO. (The court may wish to extend "harm" to a fellow citizen who may be harmed during an armed car-jacking if another good citizen cannot help because he has been deprived of his constitutional right to bear arms.)
More ripe fruit
Back to ripeness and the need for federal intervention: Counts Five, Six, Eight. Ten, and Eleven, which are a proximate result of the Arizona Supreme Court's unlawful Rule 6(E)(4)(3)(2) can only be resolved in federal court. There is no higher court in the state that can hold the state Supreme Court accountable to la or adjudicate these matters.
Public Interest
Further, the motivation behind this federal suit is not simply to remedy my constitutional rights to keep and bear arms in an Injunction, but, in the public interest, to ensure no Arizonan suffers harm in the future. There is a huge element of public interest here. This Court needs to intervene to order the Justices of the Arizona Supreme Court to repeal its baseless ARPOP Rule 6(E)(4)(3)(2).
In fact, while writing this motion, Phoenix radio station KFYI talk show host Mike Broomhead covered this story. Nationally, this case has been reported on the Internet by World Net Daily. Arizona's Mr. Broomhead, having read the amended complaint for himself, expressed his concern that, as a controversial radio talk show host, he could find himself similarly facing an unconstitutional deprivation of his gun rights simply because a listener got a judge to sign off on an ex parte petition.
As to Clarification
Given all the above, this Court's Order cannot stand. Naturally, Plaintiff desires that this Court will reconsider and reverse itself and grant Plaintiff his TRO. But if it does not, Plaintiff asks this Court to rehearse the Standard of Review for a TRO as it did when it granted a TRO in a similar matter last month. And if it does not grant the TRO, to clarify the reason(s) why not.
I refer the Court to UNITED FOOD AND COMMERCIAL WORKER LOCAL 99 et al., v (Governor) Jan BREWER, CV-11-921-GMS. (Exhibit A)
In United, as here, Arizona residents sued a branch of the state government in its official capacity. Plaintiffs there sued the executive, whereas I am suing the judicial. This Court accept jurisdiction in United. But not here.
At issue there was a state law which was to go into effect, that Plaintiffs alleged was unconstitutional. Here, Plaintiff is challenging a "state 'law,'" already in effect, promulgated and enforced by the judicial branch. (Which, on its face, according to both common sense and Article III of the Arizona Constitution (Distribution of Power) is patently unconstitutional. Pro se Plaintiff surmises it was never foreseen that a Supreme Court would make and enforce a law, and this may be a first.) This Court accepted jurisdiction in United. But not here.
In United, as here, Plaintiffs alleged a violation of a right enumerated in the Bill of Rights. Even though Plaintiffs in United had not suffered harm (the law not having been put into effect) this Court ruled that a "court may hear a constitutional challenge to a law that has not yet been enforced when 'the plaintiff intends to engage in "a course of conduct arguably affected with a constitutional interest" and that there is a credible threat that the challenged provision will be invoked against the plaintiff.'"
Here, Plaintiff has, in fact, engaged in a course of conduct that has, in fact, been affected with constitutional interests (ZAC para 6). Here, the threat has actually been invoked against the Plaintiff. The Court accepted jurisdiction in United. But not here.
In United, the Court noted that “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury" and that "the harms they would suffer should SB 1365 go into effect are irreparable per se."
This pro se Plaintiff is at a loss to understand how, if the loss of First Amendment freedoms (for even minimal periods of time) constitutes irreparable injury, the same is not true for the loss of Second Amendment freedoms. Especially in light of this Court's observation from the above case that one does not have to prove harm but that it is only likely. (“that irreparable injury is likely in the absence of an injunction.”) Especially since, as I've argued before, the result of not being able to defend oneself (or others) from violent crime can result in literal irreparable harm. Not only to Plaintiff but to the public.
In the above case, the Court took the time to rehearse the legal standards in issuing a Preliminary Injunction. And granted the Injunction. Here, the Court is silent, simply stating I have not met the burden of satisfying Rule 65(b). Unlike other federal judges in my research (Chief Judge Ted Stewart of the District of Utah, for example), this Court did not document any specific defects, nor offer guidance as to how this pro se can cure those defects. Here the Court simply jumps from "not met the burden of Rule 65(b)" to abstention.
I am at a loss to understand how two similar cases can have two antithetical outcomes, especially since, arguably, mine has more meat showing harm and unconstitutional deprivations. It the difference in the parties?
Endnotes
The Court may skip to the "Wherefore" if it wishes. What follows should be moot, since I have shown that abstention is not viable because state judges cannot be judges in their own cause. Nevertheless, because a right is deemed waived if no objection, and because an argument not raised in District Court is waived on appeal, for the sake of completeness in anticipation of an appeal:
Taken if true, Part I
It is my understanding, as a pro se litigant, that Plaintiff's "factual allegations are taken as true and construed in the light most favorable to the plaintiff." Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). But when I tell the Court, as a statement of fact, that the ten day "expedited" hearing to challenge a civil Injunction against Harassment is patently unconstitutional and therefore, not a remedy, this Court tells me that's false. (Doc. 4, p2, line 26 to p3, line 6.) There are two issues here: 1) the fallacy that truth will prevail in court and 2) the fallacy that ten days is enough time to gather material evidence for a defense.
As to the first, while I suppose I should be pleased that this Court believes my legal constitutional arguments (which ones? First Amendment? Second Amendment?) should prevail if I challenged the Injunction in state, that is no guarantee and not a viable remedy. This Court knows that courts are arbitrary and capricious. Sadly, our justice system is often like a game of Poker. You can have the best hand. You can play your cards just right. But you can still lose.
To wit, not even federal judges in different Districts agree on the constitutionality of ObamaCare, even when considering the same arguments. Sometimes different plaintiffs get different results from the same judge. Having a "legitimate basis" or having the truth does not guarantee one will prevail in court. (Cf. Pilate v Jesus.) I proved this when I petitioned the Arizona Supreme Court to repeal it's unlawful Rule 6(E)(4)(e)(2). My "legitimate" argument was rejected, even though the Justices acknowledged some of my arguments were worthy of consideration.
Further, challenging the lawfulness of Rule 6(E)(4)(e)(2) in any lower court is pointless. A lower court cannot (and will not) invalidate a Rule made by the Supreme Court.
As to the second fallacy, this Court knows that, if I had to appeal a lower court's decision, appellate courts do not accept new evidence or new facts. A defendant has to have ALL his ducks in the initial appearance to make them available on appeal. I have already told this Court why ten days does not constitutionally qualify as "due process." In my amended complaint, I added the fact that Mr. Bodine would have to move the Arizona court for leave to Intervene (or something like that) because defendant Jones' Injunction unlawfully modifies father's visitation rights. (See ZAC, FN 11 and Exhibit B, attached, for support.) As a new fact, I called Mr. Bodine the other day and asked him how long he thought it would take him to prepare such a motion. Never having done it before, he guessed "three weeks." Further, he travels a lot on business, so even if his ex-wife does not challenge his motion for leave to Intervene, it may be a while before a trial can be had where he can participate. And I would need to subpoena some of the adult children to be hostile witnesses, which takes time. As I told this Court in my complaint, there is no way a zealous defense can be mounted in ten days and Arizona's expedited hearing is illusionary.
Moreover, this Court has forgotten the realities of litigation. If I lose in the first round, it will cost me a few hundred dollars for a certified transcript of the court proceedings, a necessity in Arizona for an appeal. But there is no remedy to recover this cost from a petitioner if I prevailed in vacating the Civil Injunction. So an appeal automatically causes irreparable harm to Plaintiff. This violates due process and equal protection under law. (It's not equal because petitioner can file before the court at no cost or bond requirement, but doing so can automatically cost a "victim" hundreds of dollars to challenge. Michael Roth (of Quartzsite), cited in my ZAC, paid an attorney $1000 to defend a vacated Injunction.)
Taken if true, Part II
Along similar lines (and please forgive me if I am wrong. It is hard to read inflection in the written word), this Court seems to question my claim that my name has been placed in the FBI's NCIC database. (Not that it "will be placed" as the Court said, but it has been placed. (Doc. 4. p2, line 24).)
Again, I assumed the Court would take what I said as true and did not think it would be necessary to supply this evidence. But in case there is genuine controversy here, I supply Exhibit C, a copy of JP Judge Mary Hamm's "Notice to Sheriff of Brady Disqualification."
Please see the line "and should be assigned a positive Brady Record Indicator in the Protection Order File of the National Crime Information Center database."
For the nth time, I point out that this is patently unlawful and a violation of my constitutional right to due process, since I was never served with, nor found to be in violation of, a Title 13 Criminal Order of Protection. There must be countless other Arizonan who have been victimized by the Arizona Supreme Court because of this. The federal court is the proper forum to stop the abuse.
Since putting my name in the database was the procedure in my first Injunction, there is good cause to believe it is still procedure and has happened again.
Even if , despite all the arguments above there was somehow a viable remedy at the state level to resolve all the constitutional claims here; or, even if, defendant Jones were to vacate the Injunction against me, the damage has been done. The State does not have the power to grant me an audit of the FBI's NCIC database, nor does the state have the power to order the FBI to remove my name from the database if stuck there. As far as I know, only a federal court can grant that remedy.
Thursday, October 6, 2011
Thanks to Mike Broomhead (KFYI Radio)
KFYI radio's afternoon drive-time talk show host Mike Broomhead covers our blogger's story. (End of second hour, Thursday, October 6, 2011.)
Click here to for the mp3 file. It's nine minutes.
Click here to for the mp3 file. It's nine minutes.
Tuesday, October 4, 2011
"Illogical" - Judge Snow denies TRO
What do YOU think? Is Judge Snow passing the buck? Is the Arizona Supreme Court "too big to fail?" It this TRO politically incorrect?
UPDATE: After thinking more about Judge Snow's Order, we think we can distill this down to its fatal flaw. (And, simultaneously, address a commenter's concern.) This will be the basis for an Emergency Motion to Reconsider.
To review, the seminal issue in this case is the unconstitutional deprivation of gun rights. If our blogger had only been served an Injunction Against Harassment for blogging, with no 2nd Amendment deprivation, this would not be ripe yet for Federal court. It would initially be solely a State matter until the time the State refused to reverse. Then it would be ripe.
However, there is an unconstitutional deprivation here and the time is ripe. This deprivation cannot be argued in State court because it is the State defendants who made the unlawful "law!"
Remember, there is NO law in Arizona that allows a court to take away your guns in a civil Injunction Against Harassment. That is fact. But it is the Arizona Supreme Court that promulgates a false "law" that courts can. (And so the Supreme Court also violates Article 3, Division of Powers, of the Arizona Constitution. Who's going to adjudicate that issue? That is the sole prevue of the State judicial branch. See where this is going?)
Now, it's axiomatic in law that "no one can be a judge in their own cause." This was recently reaffirmed by the U.S. Supreme Court in Caperton v. Massey. But what Judge Snow is saying is that our blogger should take this matter before defendants at the State level and let the defendants, who literally are judges, to be judges in their own cause! (Ideally, they would have to recuse themselves from such a challenge. So then there really is no remedy at the State level.)
And that's the problem and that's why this needs to be in Federal Court.
Following Judge Snow's logic, in the ACLU's challenge to Arizona's SB1070, the ACLU would be told to take up its Preliminary Injunction against Arizona's SB1070 with the Legislature or Governor, proving to them that parts of SB1070 may be unconstitutional. That doesn't make sense - they're the ones who approved SB1070. And, as you know, the federal court (all the way to the Ninth Circuit) took jurisdiction (didn't say to take this matter to the Arizona Supreme Court because of the federal issues). In fact, the federal courts even blocked some parts of SB1070 before anyone was harmed. In our blogger's case, he's already suffered harm. But Judge Snow refuses to act. - end UPDATE.
Is Judge Snow saying that being murdered because you can't defend yourself isn't "irreparable injury, loss or damage"? While we understand his hesitancy to rule on the validity of the Injunction proper, he ignores the 800 pound gorilla in the room, that there is no law allowing judges in Arizona to deprive you of your 2nd Amendment right. There is no validity there.
He tells our blogger to take this up with the State. Which he has already done. What makes Judge Snow believe the Supreme Court will obey the law now if it didn't before? Our blogger has exhausted all his remedies. The State system is broken. The Federal court is the only thing that can fix it.
It seems to us there's a lot wrong with this ruling. It doesn't even consider the four prongs needed to grant a TRO.
Here is Judge Snow's short ruling denying our blogger's request for a TRO.
UPDATE: After thinking more about Judge Snow's Order, we think we can distill this down to its fatal flaw. (And, simultaneously, address a commenter's concern.) This will be the basis for an Emergency Motion to Reconsider.
To review, the seminal issue in this case is the unconstitutional deprivation of gun rights. If our blogger had only been served an Injunction Against Harassment for blogging, with no 2nd Amendment deprivation, this would not be ripe yet for Federal court. It would initially be solely a State matter until the time the State refused to reverse. Then it would be ripe.
However, there is an unconstitutional deprivation here and the time is ripe. This deprivation cannot be argued in State court because it is the State defendants who made the unlawful "law!"
Remember, there is NO law in Arizona that allows a court to take away your guns in a civil Injunction Against Harassment. That is fact. But it is the Arizona Supreme Court that promulgates a false "law" that courts can. (And so the Supreme Court also violates Article 3, Division of Powers, of the Arizona Constitution. Who's going to adjudicate that issue? That is the sole prevue of the State judicial branch. See where this is going?)
Now, it's axiomatic in law that "no one can be a judge in their own cause." This was recently reaffirmed by the U.S. Supreme Court in Caperton v. Massey. But what Judge Snow is saying is that our blogger should take this matter before defendants at the State level and let the defendants, who literally are judges, to be judges in their own cause! (Ideally, they would have to recuse themselves from such a challenge. So then there really is no remedy at the State level.)
And that's the problem and that's why this needs to be in Federal Court.
Following Judge Snow's logic, in the ACLU's challenge to Arizona's SB1070, the ACLU would be told to take up its Preliminary Injunction against Arizona's SB1070 with the Legislature or Governor, proving to them that parts of SB1070 may be unconstitutional. That doesn't make sense - they're the ones who approved SB1070. And, as you know, the federal court (all the way to the Ninth Circuit) took jurisdiction (didn't say to take this matter to the Arizona Supreme Court because of the federal issues). In fact, the federal courts even blocked some parts of SB1070 before anyone was harmed. In our blogger's case, he's already suffered harm. But Judge Snow refuses to act. - end UPDATE.
Is Judge Snow saying that being murdered because you can't defend yourself isn't "irreparable injury, loss or damage"? While we understand his hesitancy to rule on the validity of the Injunction proper, he ignores the 800 pound gorilla in the room, that there is no law allowing judges in Arizona to deprive you of your 2nd Amendment right. There is no validity there.
He tells our blogger to take this up with the State. Which he has already done. What makes Judge Snow believe the Supreme Court will obey the law now if it didn't before? Our blogger has exhausted all his remedies. The State system is broken. The Federal court is the only thing that can fix it.
It seems to us there's a lot wrong with this ruling. It doesn't even consider the four prongs needed to grant a TRO.
You know, when the ACLU petitioned the Arizona District Court for an Injunction against SB 1070, and got it,, there were arguably less valid claims about irreparable harm and what "might" happen to citizens if SB 1070 went into law. Sigh. As a buddy pointed out, maybe you have to be an illegal in our country to get justice?
Here is Judge Snow's short ruling denying our blogger's request for a TRO.
Analysis
Plaintiff asks this Court to issue a temporary restraining order without notice. Fed. R. Civ. P. 65(b) permits the Court to do so only if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.’ Plaintiff has not met that burden.
According to the allegations of Plaintiff’s Petition for Emergency Temporary
Restraining Order, Motion For Preliminary Injunction and Verified Complaint for Injunctive & Declaratory Relief (Doc. 1), Plaintiff was served, on Friday, September 16, with a Civil Injunction Against Harassment which restrains him from taking specified actions with respect to Melody Thomas-Morgan. Plaintiff argues that Judge Jones’s determination that he has threatened Ms. Thomas-Morgan violates or chills his First Amendment Rights to speak on his internet blog. Plaintiff further argues that the injunction, as issued, unconstitutionally prohibits him from possessing firearms during the term of the injunction.
Plaintiff thus asks this Court to take jurisdiction over this matter and without notice order Judge Jones, the Yavapai County Superior Court Judge issuing the injunction, to vacate the injunction immediately because it chills Plaintiff’s right to freedom of speech and deprives him of his right to bear arms. Plaintiff further requests the Court to: (1) declare Arizona Rules of Procedure on Orders of Protection 6(E)(4)(e)(2) unconstitutional; (2) order the Justices of the Supreme Court to repeal it; and (3) enjoin the Arizona Supreme Court, and by extension, all judicial officers from issuing said injunctions. He further requests that the Court order that Plaintiff’s name be removed from the NCIC database on which he alleges he will be placed due to the issuance of the injunction and that we further allow him to audit that database to confirm his removal from it.
Of course, pursuant to Arizona law, in those cases in which an injunction is issued
without notice, which this one apparently was, Plaintiff is entitled to an expedited hearing if he wishes, to challenge the injunction at the earliest possible date and not later than ten days after Plaintiff’s request. A.R.S. § 12-1809(H) (Supp. 2010). Plaintiff alleges that even if he brings such a challenge, ten days would not be a sufficient time in which to prepare his case, and, on the other hand, if he lost, appellate relief would take too long. This argument is belied by the extensive arguments he has set forth in his motion. Plaintiff is currently aware of the legitimate bases on which to challenge the injunction if he wishes to do so in state court.
Injunctions against harassment are generally the province of state courts. This Court, does not necessarily know all the facts under which the state court determined that the injunction without notice should issue to the Plaintiff in this matter. Thus, it cannot determine the extent, if any, to which Plaintiff is suffering immediate and irreparable injury by virtue of the injunction without giving Defendants the opportunity to be heard. At any rate “adequate state court review”of Judge Jones’ order is available on an expedited basis before Judge Jones himself, and, if necessary the Arizona appellate courts. Further, as Plaintiff’s Complaint ably sets forth, the appropriate interpretation of the scope of the injunction is subject to arguments under both state and federal law, and Plaintiff asserts could be invalidated under either or both. This, thus appears to be a case in which it may be appropriate for this Court to abstain from exercising its jurisdiction under Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941). In such cases, it is appropriate for a federal court to abstain from exercising its jurisdiction until the state courts have had the opportunity to decide the question to determine whether an appropriate application of state law avoids any federal questions.
Given the circumstances present here, Plaintiff is not eligible for the entry of a TRO without notice.
IT IS THEREFORE ORDERED that Plaintiff’s Application to Proceed in District
Court Without Prepaying Fees or Costs (Doc. 2) is granted. Plaintiff shall be responsible for service by waiver or of the summons and complaint.
IT IS FURTHER ORDERED that Plaintiff’s Application for Emergency Temporary
Restraining Order (Doc. 1) is denied.
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