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.
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.