Thursday, November 17, 2011

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.


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.


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.


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.

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