Motion to disqualify Judge Murray Snow

Our blogger admits he's just a dumb pro se, so he's a little slow on the up-take. While preparing the previous motion (below) for Disqualification of the Attorney General, Tom Horne, our blogger tripped across a useful case that was adjudicated by Judge G. Murray Snow (the judge for this federal suit) when he (Judge Snow) was an Arizona Court of Appeals Judge.

Wait. What's wrong with this picture?

Judge Snow was an Arizona COA judge in 2008. He worked in the same building as the defendants in this federal suit! Presumably he knows them all by sight and on a first name basis. Presumably, they are all his friends. He should have recused from the onset of this case.

He didn't. Hence, this motion.

Pursuant to 28 U.S.C. § 455 (a) & (b)(1) and Canon 3(C)(1)(a) of the Code of Judicial Conduct, plaintiff makes a timely motion for Judge G. Murray Snow to disqualify himself from further participation in this action.

Because this motion alleges bias, and because there are rulings pending before Judge Snow which would be forever tainted if ruled on before this one, plaintiff requests the Court prioritize this instant motion to the top of the stack, expediting it before those pending.

MEMORANDUM AND POINTS OF AUTHORITIES

While researching his previous motion, pro se plaintiff just learned that Judge Snow was a judge in the Arizona Court of Appeals until 2008. (Per YES ON PROP 200 v. Napolitano, 215 Ariz. 458, 160 P.3d 1216 and Exhibit 1.) As Judge Snow is aware, he worked with—and personally knows—at least four of the five Justice defendants. I submit Exhibits 2, 3, 4 and 5 for the (appellate) record and for the public's edification.

In fact, when he was an Arizona judge, Judge Snow worked in the same building in Phoenix with three of the Justice defendants. It is reasonable to presume he knew them then—and still knows them now—by sight and on a first name basis. While the fourth Justice defendant was a member of the Arizona Court of Appeals in Tucson at the time, it is reasonable to presume that Judge Snow also worked with him on occasion and presumably knows him by sight and on a first name basis too.

Plaintiff has not taken the time to research, but presumes it is easy to discover in which committees Arizona COA Judge Snow worked along side any four of the five Justice defendants. (If not all five.) It is reasonable for the public to presume Judge Snow went on occasional junkets with them. It is reasonable for the public to presume Judge Snow may even see defendants at Christmas parties and/or other social events, whether he still does or not.

Now, both 28 U.S.C. § 455 and Canon 3 of the Code of Conduct require "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 in which the judge has a personal bias or prejudice concerning a party . . . "

Clearly, working with and personally knowing four of the five Justice defendants constitutes a "personal bias." Clearly the public watching this case can reasonably question Judge Snow's impartiality. The defendants are Judge Snow’s close acquaintances, if not friends.

Chief Supreme Court Justice Roberts observed ". . . there are a number of factors that could give rise to a probability or appearance of bias: friendship with a party or lawyer, prior employment experience, . . ." etc.

While he said "We have never held that the Due Process Clause requires recusal for any of these reasons . . . " he acknowledges ". . . they could be viewed as presenting a probability of bias.” Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (2009). This case is already a case of first impression. It may set yet another precedent here if Judge Snow chooses to not recuse.

Regardless of whether Judge Snow feels he's biased or not, that is not the test. As Justice Scalia said, "what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal [i]s required whenever 'impartiality might reasonably be questioned.'" Liteky v. United States, 510 U.S. 540 (1994).

Consistent with this, regarding vacature, the Ninth Circuit has noted "the unfairness and expense which results from [delayed] disqualification can be avoided in the future only if each judge fully accepts the obligation to disqualify himself in any case in which his impartiality might reasonably be questioned." Preston v. United States, 923 F.2d 731, 734 (9th Cir. 1991) at 735-36. This is such a case.

NO DUTY TO SIT

Lest the Court wrongly invoke it, there is no "duty to sit," strong or otherwise. This doctrine was changed by Congress more than 35 years ago, in 1974. Citing the Federal Judicial Center's Recusal: Analysis of Case Law, (Exhibit 6, p2), "The legislative history made it clear that in revising the statute [§ 455], Congress wished to remove the 'duty to sit.'"

Chief Judge Kozinski demonstrated this fact when he recused himself sua sponte in his infamous pornography trial. (Exhibit 7.) Judge Snow should follow this lead.

NO HARM

This case is still in its infancy. There will be no harm or delay to defendants by assigning another judge at this time. In fact, since it is only plaintiff suffering a constitutional deprivation, only I will be harmed by delay. Consequently, defendants should not be opposed to this motion to disqualify Judge Snow . . . unless of course, they see Judge Snow as their friend. In which case they will vigorously oppose this motion.

Given that pro se plaintiff just now learned of Judge Snow's conflict of interest, this is the absolute earliest possible time plaintiff could have brought this good faith motion.

CONCLUSION

Given the above, in the interest of justice, judicial economy, and for the sake of public confidence in the judiciary, Judge Snow must recuse from this action. There are other federal judges in this District who do not have a history of past relationships with defendants who can hear this case without any appearance of impropriety.

Plaintiff's Motion to Disqualify State Attorney General

The State Attorney General, Tom Horne, is unlawfully defending the Justices of the Arizona Supreme Court. There are a LOT of problems with this, and our blogger filed a Motion to Disqualify the AG from appearing for the Justices. We've maintained this is a case of first impression, and the more we get into this, the more unique and (potentially) precedent setting it gets.

Our blogger has a great point in his hip pocket for the Reply Memorandum, if Mr. Horne fights this motion.

Pro se plaintiff moves this Court to immediately disqualify Tom Horne, the Arizona State Attorney General—and by extension, the Office of the State Attorney General—from appearing in this action as counsel for defendants in this case of first impression.

Given the uniqueness of this case, this motion may require an immediate ex parte determination by the Court. For to allow the Attorney General to respond where his disqualification is unequivocally required will only compound attorney misconduct.

Similarly, perhaps the Court could consider this an Emergency ex parte motion to enter partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, as there is no genuine dispute as to several material facts, and as these issues are a matter of law.

Plaintiff files an Emergency motion because, in addition to all the reasons given previously for expediting this action, the longer the Attorney General represents defendants, the more conflicted his is as an expert witness to plaintiff. (Due to attorney/client privilege with defendants.) And the longer the Attorney General improperly responds or replies to motions, the greater his ethical violations.

MEMORANDUM AND POINTS OF AUTHORITIES

INTRODUCTION

This Court (GMS) was once a judge in the Arizona Court of Appeals and once handled a case touching on the duties of the Arizona Attorney General. (Yes on Prop 200 v. Napolitano, 215 Ariz. 458, 160 P.3d 1216). So this Court is familiar with these matters.

In fact, were this matter to be tried in state, then, quoting former Arizona appellate court Judge Snow in Yes on Prop 8, "the Declaratory Judgments Act requires that the Attorney General be served with a copy of the complaint, together with a claim of unconstitutionality, and be allowed to respond on behalf of the State. A.R.S. § 12–1841" (Id. ¶ 33). That is, the Attorney General has an affirmative duty to make an unbiased determination if the defendants have violated the State Constitution. But since the Attorney General is defending the defendants, he has made this determination already and is therefore, inextricably prejudiced. This fact precludes the federal court from abstaining, since there is no way to undo this error. Plaintiff cannot now go to state, serve the Attorney General with this federal complaint as required by law and expect an unbiased response from the Attorney General. This matter must be decided in the federal court.

By choosing to represent the judicial branch in this unique action involving a prima facie constitutional violation of Distribution of Powers, the Arizona Attorney General has created several conflicts of interest for himself, may be acting unlawfully, and is acting unethically. Per 32 Am. Jur. 2d Federal Courts § 160, "A motion to disqualify counsel is the proper method for a party-litigant to bring an issue of conflict of interest or breach of an ethical duty to the court's attention."

CONFLICT OF INTEREST

A.R.S. § 41-192(A) defines the Attorney General as "chief legal officer of the state." Since this action charges several violations of the state constitution by defendants, plaintiff intends to call the chief legal officer of the state as an expert witness. There is no one else in the state who can testify as to whether the judicial branch ("department" in the Constitution) has violated Article III of the Arizona Constitution by "exercis[ing] the powers properly belonging to either of the others." (Count Five in plaintiff's ZAC, Doc. 5.) There is no one else who can testify whether an ex parte action (as in A.R.S. § 12-1809) violates the Arizona Constitution's Article II, Section 4 (plaintiff's Count Eight, Id.). Etc. For this reason alone, since plaintiff cannot call defendants' attorney as a needed and necessary witness, the Attorney General must be disqualified from representing defendants so he can be a material witness for plaintiff.

The Attorney General swore an oath to "support the Constitution of the United States and the Constitution and laws of the State of Arizona, that I will bear true faith and allegiance to the same and defend them against all enemies, foreign and domestic, and that I will faithfully and impartially discharge the duties of the office of Attorney General according to the best of my ability, so help me God (or so I do affirm)." (A.R.S. § 38-231.) Arizona court of appeals Judge Snow said in Yes on Prop 200, citing Article III, "Our system of government prohibits one branch of the government from exercising the powers granted to another branch of the government." (Id. ¶ 16) To the extent that the defendants have violated the Arizona Constitution's Distribution of Powers, they are "enemies, domestic." It is inconsistent that the Attorney General could impartially discharge the duties of his office by defending violators of the constitution.

Further, Article V, Section 1 of the Arizona Constitution defines the Attorney General as part of the Executive branch of Arizona government. As such, he represents the Governor in legal actions by default. To wit, the Attorney General represents the Governor in a case in this Court, United Food & Commercial Workers Local 99 v. Brewer, CV-11-921-PHX-GMS. So when it comes to the issue of Distribution of Powers, the Attorney General has a de facto duty to argue for the executive. But instead, he has conflicted himself here by arguing for the judicial, the very branch who is accused of usurping the executive's power by making and promulgating "law." Really, as the Governor's attorney, the Attorney General should be moving this court to include the governor as an Intervenor and should represent the governor's interest here.

Along similar lines, two weeks ago, plaintiff hand delivered a copy of this complaint to the Counsel for the Governor (Mr. Joe Sciarrotta), asking the Governor to be an Intervenor in this matter and/or seek an Opinion from the Attorney General about such. At the same time, plaintiff hand delivered copies of this complaint to the Counsel for the Arizona Senate (Mr. Greg Jernigan), the Counsel for the Arizona House of Representatives (Mr. Peter Gentala) and plaintiff's State Senator (Senator Lori Klein), asking them to be Intervenors and/or, pursuant to A.R.S. § 41-193(7), to request an Opinion from the Attorney General as to their rights to Intervene in this matter. (Plaintiff intends to make future requests of other Legislators as well.)
Plaintiff does not know what action the above have taken or whether such will be pending in the future. Plaintiff presumes he cannot make a "reasonable inquiry," since such requests between them and the Attorney General would be covered by attorney/client privilege. Nevertheless, the specter exists for a bona fide conflict of interest if any of the above have requested such an Opinion or action from the Attorney General regarding this Complaint.

Also, the Attorney General is an officer of the court. Thus he has two masters, the Governor and the Justice defendants. No man can serve two masters. He has already chosen the Justices.

A.R.S. § 41.192(A)(7) authorizes the Attorney General to "Organize the civil rights division within the department of law and administer such division pursuant to the powers and duties provided in chapter 9 of this title." Knowing the civil rights violations "alleged" in this action, the Attorney General has a duty to investigate. Plaintiff may file a formal civil right complaint in the future. Clearly, the Attorney General would be conflicted investigating that complaint while at the same time defending (or after having defended) this complaint.

The Attorney General is a defendant in the case of United Food, which touches on A.R.S. § 12-1809, a key statute in this instant action. (See United Food's FAC, Doc. 8 as well as other Doc's.) Therefore, the Attorney General has a bias and interest in this instant action and cannot represent defendants.

NO LAWFUL BASIS

A.R.S. § 41.193 empowers the Attorney General to "[r]epresent the state in any action in a federal court." It has previously been argued that the State is not a real party of interest in this action because the defendants are clearly acting outside their power, per Article III of the Arizona Constitution. (See plaintiff's Response to Defendants' Motion to Dismiss, Doc. 22.) This is not a "state interest." ARPOP Rule 6(E)(4)(e)(2) is not a statute. (ZAC, Doc.5 ¶ 50.) Therefore, by definition, defendants do not represent the state and the Attorney General has no authority to represent them as such.

Likewise, per A.R.S. § 41-621, the Attorney General may not represent defendants because they acted outside the "course and scope of [their] employment." See especially § 41-621(R).

VIOLATIONS OF ETHICS RULES

Ironically, defendant Justices are responsible for Ethics Rules that catch the Attorney General here. As one would expect, conflict of interests and acting absent law triggers violations of ethics.

Per 17A A.R.S. Sup. Ct. Rules 41 (b), "The duties and obligations of members shall be: To support the constitution and the laws of the United States and of this state." As stated before under Conflict of Interest, the Attorney General is in violation of his oath of office in several instances. Hence this ethic too.

Continuing on to Rule 41(d), the duties and obligations shall be: "To counsel or maintain no other action, proceeding or defense than those which appear to him legal and just, excepting the defense of a person charged with a public offense." This is not a criminal matter (i.e., "public offense" as defined by A.R.S. § 13-105(27).) For all the reasons stated previously, the Attorney General cannot consider this action legal or just. Therefore, he is in violation of this Ethic Rule.

17A A.R.S. Sup.Ct.Rules, Rule 42, Rules of Prof.Conduct, ER 1.7 (a): ". . . a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer." As stated previously, the Attorney General has a duty to the Governor here, and perhaps the Legislature (or Legislators) as well. Therefore, the Attorney General is in violation of E.R. 1.7(1) and/or (2).

E.R. 8.3(b) says "A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority." Here the Attorney General is aware that (or of allegations that) defendants have violated, as a minimum, Article III of the Arizona Constitution. He has a duty to report the defendants to the appropriate authority. Which, in this case of first impression, would be the Arizona House of Representatives for impeachment. He has not done this, nor can he do so as defendants' attorney. His duty to the state comes first, yet he has not disqualified himself from defending defendants.

CONCLUSION

A.R.S. § 41.192(F) provides "If the attorney general determines that he is disqualified from providing judicial or quasi-judicial legal representation or legal services on behalf of any state agency in relation to any matter, the attorney general shall give written notification to the state agency affected. If the agency has received written notification from the attorney general that the attorney general is disqualified from providing judicial or quasi-judicial legal representation or legal services in relation to any particular matter, the state agency is authorized to make expenditures and incur indebtedness to employ attorneys to provide the representation or services."

The Attorney General has not done this. It is up to this Court to force the matter.

THEREFORE, for any of these reasons, this Court must disqualify the Arizona Attorney General—and, by extension, the Office of the Attorney General—from appearing in this action as counsel for defendants.

Dating in the federal court - (post)

This is about post-dating documents.

Our blogger is in his mid 50's. He's not a child anymore who lives in an innocent world. So he shouldn't be surprised to find corruption everywhere. Even in the federal court. Sometimes at the lowest levels.

But because he's a Christian, our blogger doesn't think like the rest of the world and is still shocked at the evil out there.

He was at the clerk's office of the Arizona District Court in Phoenix recently, filing some papers for Michael's Law and chatting with the clerk. Before the clerk hand-stamped the papers with that day's date, she took a quick look at the stamp to make sure the correct date was set. This was after noon. (The implication being that others already had papers stamped that day. In fact, someone was there just before our blogger. One presumes the date would be correct already.)

Our blogger remarked that it must be quite a trick to read numbers backward off the rubber stamp.

The clerk laughed and said she had learned very quickly how to read the stamp backward, especially because she often had to set back in time.

What?

The full impact of this statement didn't quite hit our blogger and besides, what could he do about it? He made a joke about it and said, "Oh . . . we're not post dating documents, are we?"

To which the clerk laughed sheepishly and said, "Shhh . . . don't tell anyone." (Or words to that effect.)

We don't think she's taking money to do post-date documents. (But our blogger didn't ask what it takes.) That would leave only a judge's informal "order" to post date something.

But however it happens, apparently it happens.

But Justice Hurwitz is being sued!

President Obama has nominated Arizona Justice Hurwitz for the Ninth Circuit.

But he's being sued in federal court!

"Justice Hurwitz has proven himself to be not only a first-rate legal mind but a faithful public servant," Obama said in announcing the nomination. "It is with full confidence in his ability, integrity and independence that I nominate him to the bench of the United States Court of Appeals."

Hmmm . . . It's impossible to know which of the five Arizona Justices refuse to comply with Arizona Law in the Michael's Law lawsuit. Presumably a majority of them refuse to choose the right. But surely this can't look good for Justice Hurwitz. Can't he convince his colleagues what is right?

Hopefully some Republicans will trip across this blog when it comes time for the Senate to confirm Justice Hurwitz. Hopefully they will ask him which way he voted in Michael's Law.

Plaintiff's Response to Defendants' Motion to Dismiss

Just throwing something up for now. This is about two-thirds of the Response. Will try to make it pretty later. Footnotes are not printed here. They add a lot of color.

Defendants have moved this Court to dismiss plaintiff's Complaint. Their motion is not difficult to adjudicate, as there can be only one logical outcome. Deny.

First and foremost—and since defendants moved for abstention in their motion, per the arguments previously offered in Plaintiff's Emergency Motion for Reconsideration (Doc. 6)—dismissal is simply not in the universe of logical outcomes in this unique action. This action cannot be adjudicated by its own defendants in State court. (See Fatal Flaw I and II in Doc. 6.) Besides, in general, there is strong precedent for the federal court to abstain from abstention.

Consistent with this, as proffered in plaintiff's Doc.6, and now stated definitively after further research, this is a case of first impression—distinguished from the few other federal actions against State judges because, among other things, these defendants, members of the judicial branch, have unconstitutionally enacted an unconstitutional "statute" and are the enforcers of that "statute." That is, they have acted in "absence of all jurisdiction." Mireles v Waco, 502 U.S. 9, 112 S.Ct 236, 116 L.Ed.2d 9 (1991). Moreover, they have been noticed as to the unconstitutionality of their actions long before suit was brought—a critical additional element which further mandates adjudication by this Court. Therefore, this case must be fully adjudicated in federal court.

Because this is a case of first impression, opposing counsel's negative cites for dismissal via immunity and/or abstention are, by definition, off point. For negative precedents cannot apply in unique new instances. On their face they are moot in light of the unique distinguishing circumstances here. Nevertheless, opposing counsel throws several abstention doctrines against the wall to see what will stick. As above, abstention in this unique action is not logical. Defending against abstention is, a priori, moot. But for the sake of completeness, I will deal with them at the end.

Happily, while this is a case of first impression, it does parallel the ongoing case in this same Court of United Food & Commercial Workers Local 99 v. Brewer, CV-11-921-PHX-GMS (cited in Doc. 6), where the defendants also are State officials. This Court has already upheld claims in United that parallel plaintiff's claims here, even granting plaintiffs in United a Preliminary Injunction to preclude alleged constitutional harm.

As it pertains to this Response, in United this Court denied dismissing the State officials who caused traceable injury to plaintiffs. How much more here where there's been actual injury? Not only that, but injury not merely "fairly traceable" to defendants, but directly attributable to defendants. Since the State has trod out the same Eleventh Amendment immunity argument in this instant matter it used in United, I will simply quote this Court's Order from United to refute here.

After a brief editorial comment and briefly restating the facts for the record, I will "accentuate the positive" before "eliminating the negative." I will focus on a recent federal case similarly considering dismissal of an § 1983 action against State judges because it addresses and dispenses with many of the same cites opposing counsel uses in her motion.

EDITORIAL COMMENT

In general, opposing counsel obfuscates and mischaracterizes the facts in this matter. For example, consider her Summary of Complaint. As amply stated in my Zeroth Amended Complaint ("ZAC," Doc. 5), this matter is not about Criminal Orders of Protection, but rather Civil Injunctions Against Harassment. Nor am I asking this Court to have the "Arizona Rules of Civil Procedure" declared unconstitutional, but rather one Rule of the "Arizona Rules of Protective Order Procedure." By over-generalizing, she perpetuates a fraud and makes this case more than it is as well, while, at the same time, less that it less. Similarly, in the body of her motion, she misstates the facts of this matter to set up invalid strawman arguments for her to knock down. She also glosses over critical quotes in her cites which bear directly on this action, as we will show.

THE FACTS

Briefly then, I restate the salient facts:

Plaintiff has suffered the deprivation of numerous constitutional rights as a result of an ex parte civil action at the hands of defendant Jones, under the guise of A.R.S. § 12-1809. (ZAC, ¶19). An ex parte deprivation of any constitutional right constitutes a prima facie violation of Due Process.

Defendant Jones did not declare the ex parte action unconstitutional and dismiss it, as is within his authority as a judge. Defendant Jones merely "rubber stamped" one citizen's ex parte claims against another citizen. Contrast this with Arizona Judge John Keegan (a student pilot of plaintiff's, now retired) who declared state law authorizing photo-enforcement tickets unconstitutional and, sua sponte, dismissed them from his court. (Exhibit 1)

Judge Jones issued the Injunction and enforces the Injunction by force of law, namely through A.R.S. § 13-2810. Interfering with judicial proceedings; "A. A person commits interfering with judicial proceedings if such person knowingly: 2. Disobeys or resists the lawful order, process or other mandate of a court;" Among the constitutional deprivations plaintiff is suffering is the deprivation of his Second Amendment right. (ZAC, ¶36) There is no statutory authority in A.R.S. § 12-1809 authorizing defendant Jones to deprive plaintiff of his Second Amendment right. (Id., ¶39) Thus defendant Jones exceeded his statutory authority. Given that, to date, defendant Jones has not vacated his Injunction as did JP Judge Karen Slaughter in the similarly Michael Roth (Quartzsite) fiasco (Exhibit 2), it is a "reasonable inference" that defendant Jones would consider possession of weapons by plaintiff a violation of his order, thus perpetuating and enforcing his order.

Contrary to opposing counsel's implication, (8:21) plaintiff has not engaged the State in challenging these deprivations. To do so might invoke Rooker-Feldman. There are no pending state court proceedings in which this Court can interfere.

It is likely defendant Jones was relying on the Arizona Supreme Court's "Arizona Rules of Protective Order Procedure" (ARPOP) instead of the Arizona Revised Statutes. (Id., ¶48) The latter is law. The former is not. Defendant Jones took an oath to defend the latter, not the former.

The ARPOP is compiled by the Justice defendants of the Arizona Supreme Court. It is merely a compendium of state laws. It cannot supercede state law. While the Court has statutory authority (I presume, no cite) to make its own rules for the administration of the courts, publishing the ARPOP—or, at least, publishing an unlawful Rule—is not administrative. Therefore, such is not a legislative function.
In the ARPOP, the defendant Justices have published a rule, namely Rule 6(E)(4)(e)(2) that is without legal citation because it is outside legal authority. (Id., ¶50) That is, defendants have created, promulgate and continue to promulgate a Rule which they have, through their own officers, given the force of law. This is a violation of Article III of the Arizona Constitution, Distribution of Powers.

Almost a year before this action commenced, defendant justices were noticed, by way of the Supreme Court's public forum, that they were promulgating a fraud. (Id., ¶52) The justices even acknowledged plaintiff's petition had some merit. (Id., ¶54) Yet, to this day, even after this action commenced, defendants have not acted to repeal their unlawful Rule.

Plaintiff had his Second Amendment right revoked once before via a Civil Injunction. (Id., ¶20) As a proximate result, plaintiff's name was put on the FBI's NCIC database for ""positive Brady Record Indicator." (See Doc. 6, Ex. C) There is nothing in Arizona statute § 12-1809 giving the defendants the statutory authority to put a citizen's name in the FBI's Federal database.

A recent conservation with a veteran certified Quartzsite (Arizona) police officer informs me NCIC information is coughed up by Dispatch whenever an ACJIS inquiry is made on a citizen. Since my name was put on the NCIC database before by JP Judge Hamm as Standard Operating Procedure in a previous Civil Injunction, it is reasonable to believe I am suffering the same NCIC injury now.

Being the highest court in the State, even if defendant justices could sit on and judge their own case, given that, to this day, they refuse to repeal their unconstitutional rule, it is reasonable to assume they would continue their present course. Furthermore, Arizona law governing appeals of Civil Injunctions (Rule 9(B)(1) 17B A.R.S.) precludes plaintiff from appealing past Superior Court. Thus, the only remedy—and the proper remedy—available to plaintiff is the federal court.

CASE IN POINT

Before refuting defendants' motion line by line, it seems more instructive to cite a recent District Court case (from 2003, after the 1996 Federal Courts Improvement Act cited by defendants) which deals with many of opposing counsel's objections. The case is LECLERC, et al. v. WEBB, et al. (270 F.Supp.2d 779) The defendant Justices of the Louisiana Supreme Court were sued in their official capacities (as here) as in what appears to be a § 1983 action. The complaint sought declaratory and injunctive relief (as here) but also monetary damages. (Not here.) From the Westlaw headnote, "The District Court, Zainey, J., held that: (1) claims were ripe for adjudication; (2) aliens had standing; (3) Ex parte Young exception applied, such that action was not barred by Eleventh Amendment; (4) Louisiana Supreme Court Justices were not entitled to immunity from suit; (5) aliens were not denied due process or equal protection; (6) state Supreme Court rule was not preempted by federal law; . . ."
While not an exact parallel (since this instant matter is a case of first impression), I cite this ruling since Items 1,2,3,4, and 6 are on point in this instant matter and were affirmed.

As this Court can see, defendants in Leclerc rounded up the ususal suspects, just as defendants do here. By name they are: lack of jurisdiction, failure to present a "case" or "controversy," Rooker-Feldman, Eleventh Amendment, Judicial & Legislative Immunity, and Abstention.

Page limits prevent an in-depth analysis. Nor do I think it necessary. For, after reading this Court's Order denying dismissal of State Agents in United (Doc. 100), I am persuaded that this Court knows how to Choose The Right. So I merely highlight important points in Leclerc, following along with Judge Zainey's sequence.
As to Case or Controversy, unlike plaintiff Leclerc, I have suffered actual injury. As to Rooker-Feldman, like plaintiff Affleck, I have not engaged the State in any way. I am not a party to a state suit. Thus, there can be no collateral attack on a state court judgment.

As with Affleck, I assert federal law does not require exhaustion of state remedies prior to brining a claim alleging violations of federal law. (And remember, my Second Amendment deprivation is not an allegation, but fact per by defendant Jones' Order. ZAC, Ex. 1) Judge Zainey agrees, saying in FN12, "Indeed, it is well established that administrative exhaustion does not apply to civil rights claims . . . " (citations omitted.) Also as with Affleck, given that the Arizona Supreme Court refused to repeal its unlawful Rule when I petitioned, pursuing in-state action would be futile anyway.

As to the Eleventh Amendment, I'll simply quote this instant Court (GMS) from Doc. 100 in United. "State officials, however, can be sued in their official capacity for
injunctive relief to prevent them from implementing state laws that violate the Constitution. Under the doctrine of Ex Parte Young, 'relief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect on the state treasury.'"

In my instant case, a state "law" which violates the Constitution had already been implemented and continues to be promulgated. It has affected me and others before (Michael Roth of Quartzsite) and will continue to do so unless challenged. So how much more the harm here? Furthermore, as I will address in the next section, the state is not a real party of interest since no money or revenue is involved, nor any lawful state action. "The state is the real party in interest when the judgment would tap the state's treasury or restrain or compel government action." There is no official, sanctioned government action here to compel. The defendants made up, promulgate and enforce a "law," acts they are prohibited from doing.

As to Judicial Immunity, Judge Zainey presents a lot of history, starting with opposing counsel's own Supreme Court of Virginia v. Consumers Union, taking us through counsel's Forrester V. White, ending with counsel's Federal Courts Improvement Act of 1996. After considering the history, Judge Zainey sums up, saying, "The Supreme Court's jurisprudence had long been unequivocal in that the Court did not consider every act taken by a judicial officer to be a “judicial act” subject to judicial immunity. Therefore, Congress's decision to preclude injunctive relief when the judge acts specifically in his “judicial capacity” can only mean that injunctive relief remains available when the judicial officer acts in other capacities. . . . " Considering the history, he then defines judicial capacity as the SCOTUS cited in Forrester: "the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform.”

However, in this instant case, by making up law and promulgating such in a Handbook of theirs, the Justices are acting outside law. Defendants are not assigned by law to perform the unconstitutional "function" of promulgating a Rule in their Handbook that the Legislature and Governor did not authorize.
Interestingly, Judge Zainey shrewdly observes (in FN17) that "Interestingly, Defendants' own invocation of legislative immunity [which defendants in this instant case also invoke - see Doc. 18, 6:14] belies any assertion that they believe that the FCIA erased the recognized distinctions between the various capacities in which judges act."

Moving on to Legislative Immunity, in my instant case, because the Justices lack statutory authority to make law, and since Rule 6(E)(4)(e)(2) is not based on law, the Justices cannot claim they are simply promulgating a rule from the Legislature. Therefore, by definition, they cannot claim Legislative Immunity.

Last is Abstention. As far as specific abstention doctrines go, there's nothing on point in Leclerc. Nevertheless, an important point: Judge Zainey noted "[Justice] Defendants' abstention argument is less persuasive given that many of Plaintiffs' federal arguments have already been presented to and rejected by the Louisiana Supreme Court." Similarly, plaintiff here has been a good citizen, has tried to repeal the unconstitutional Rule from within the system (Doc. 5, Ex. 8) and yet has been rejected by the Arizona Supreme Court. (ZAC, ¶53). There is no reason this Court should believe that, even if it could abstain and let the Justices judge themselves, that they would do any different. They're being sued in federal court but still haven't repealed their Rule.

Status as of November 17

Lot's been happening.

Defendants filed your classic Motion for Dismissal, rounding up the usual suspects of bogus arguments.

Plaintiff fired back a Response, quoting Judge Snow back to himself at several points from a parallel case from his own court!

Plaintiff filed an Emergency Motion to Disqualify the Arizona State Attorney General from appearing for defendants. (Conflict of Interest, Acting outside the law and Ethics Violations.) It appears the R Tom Horne is really no different than the D Terry Goddard. No wonder people call them "Repubocrats."

Again quoted Judge Snow back to himself from when he was an Arizona Court of Appeals Judge. (Hmmm . . . does anyone see a problem with this picture?)

A few more doozie motions are planned.

Will try to catch up and post all the above when we can catch a breath.

Status as of November 1

Our blogger filed an Emergency Interlocutory Appeal with the Ninth Circuit.

Shortly after that, an Assistant Attorney for Tom Horne's Office, the Arizona State AG, filed a Motion to Dismiss. (Anyone see anything wrong with this picture? Hint: See Article III of the Arizona Constitution, titled "Distribution of Powers.")

Some doozie motions are planned. This appears to be a case of first impression and should set a number of interesting precedents.

More to come.