Legal Advice on Ninth Circuit?

Our blogger could use a tiny bit advice as to how best to proceed.

After successfully forcing Judge Snow off the case, Judge Teilborg dismissed the case.

That's fine and was expected. We always planned on this case of first impression being settled in the Ninth.

So our blogger filed a Notice of Emergency Appeal with the Ninth, as he did before when he filed an Emergency Interlocutory Appeal.

When he filed the Interlocutory, the Ninth put it on the fast track with a 14 day deadline to brief.

But, for some reason, this Emergency Appeal is on the normal track. The deadline is the end of March.

We're hoping this is an oversight by the Ninth. This is supposed to be an emergency appeal, due to an actual constitutional deprivation. But how to bring it to their attention?

If any attorneys have any ideas, please send them via a comment. You can remain anonymous and the comment will not be made public. (Unless you want it to.)

Thank you.

Tom Horne - Wrong on Quartzsite, Michael's Law. Arizona?

Let the record show that Arizona Attorney General Tom Horne blew it. He is on the wrong side of Quartzsite. He's currently on the wrong side of Michael's Law. That means he's on the wrong side of Arizona and your rights. (Remember that when he runs for Governor.)

You see, about a year before Jennifer Jones became famous and before the citizen advocacy in Quartzsite was in the pubic spotlight, Michael Roth—the same man who had his 2nd Amendment rights revoked for calling Councilman Joe Winslow a turd—had also been falsely arrested for speaking at a townhall meeting. Just like Jennifer Jones, But the video of Michael Roth didn't go viral. (The advantage of being a girl we suppose.)

Michael was charged with three criminal counts: resisting arrest plus two counts of disorderly conduct.

Arguably misdirected by Judge Michael Burke on what the First Amendment really says (wow - just like cheating judge Mary Hamm!), Michael was found guilty by a jury of the last two counts of disorderly conduct. (Jury Nullification, people! Juries are the final Check & Balance in a tyrannical system run by tyrannical judges.)

See the appellate court ruling for Burke's dilution of your Free Speech rights. (At para 9)

There seems to be a pattern and practice of bias by Judge Burke. At a recent hearing where Jennifer Jones challenged recent mayoral elections, the town didn't send an attorney to defend itself. They didn't need to. They had Judge Burke acting as their attorney! (Judge Burke earlier ruled in the same matter that "a citizen had no standing to request his or her elected officials to obey the law.")

Fortunately for Micheal Roth, there was video of what really happened at the meeting. So Michael appealed and, just a few days ago, the Arizona Court of Appeals vacated both sentences!

Unfortunately, the appellate judges (Margaret H Downie, Peter B Swann, & Donn Kessler) wimped out and did not correct Judge Burke on the First Amendment. (See Para 15.) So, un-rebuked, Judge Burke will do it again to you.

Now, guess who prosecuted Michael Roth at the appellate level? Yep - Tom Horne, the supposedly Conservative Attorney General for Arizona.

You know, Mr. Horne could have decided not to prosecute Micheal Roth. There was no case. This wasn't even close! But he did not uphold the Constitution. Instead, he prosecuted an innocent man. (Makes you wonder how many other innocent men have been wrongly convicted? Eh, Mary Hamm?)

Which brings us to the present.

Presently in the Ninth Circuit Court of Appeals is Michael's Law. This is a federal civil rights lawsuit challenging an unconstitutional Rule the Justices of the Arizona Supreme Court wrote in an internal handbook of theirs which they use to unconstitutionally revoke your 2nd Amendment right in a civil injunction. As when you call a Councilman a turd. Or if you blog about a woman and that woman doesn't like the truth. The judges put your name in the FBI's National Crime Information Database, listing you as a CRIMINAL Domestic Violence offender! All via a civil mater, before you even have a trial!

By the way, this just happened to Jennifer Jones too. Jones is a newspaper publisher in Quartzsite. She had some colorful words with a colorful public figure. ONCE. As a result, Denise Florian, after failing to get a felony criminal charge to stick against Jones, sought and, absent law, obtained a civil Injunction Against Harassment against Jones.

Mr. Horne, TEAR DOWN THIS WALL! You should not be defending the Justices of the Arizona Supreme Count in an unconstitutional action. Hey, rightly or wrongly, by law you're their "legal adviser." Advise them they are in violation of the law.

Further, your primary duty is to the Constitution, the Executive and Legislative branches of Arizona government. Oh yes . . . and "we, the people."

But go ahead. Take up another bad cause against Michael Roth. While we realize the people have short memories, the Internet is forever.

Judge Snow recuses himself!

Judge Snow finally recused himself from the Michael's Law lawsuit.

Before becoming a federal judge, Judge Snow was a former Arizona Court of Appeals Judge. He worked in the same building with three of the defendant judges. Documents from the Arizona Supreme Court, supplied in Plaintiff's Motion for Disqualification, show that Judge Snow worked with two of the defendants on Committees!

It is reasonable to assume that Judge Snow knew-and still knows-all of the defendant judges on sight and on a first name basis. By law, he should have recused on his own at the start of this case. Three months into it, it took a formal motion to make it happen. But he finally recused.

Pending before the new judge is a similar motion to disqualify the Arizona State Attorney General from defending the Justices of the Arizona Supreme Court. There are numerous conflicts of interest and ethics violations when the Executive branch defends the Judicial branch in a constitutional violation of separation of powers.

As expected, the AG has moved for dismissal of the case, and that is pending also.

---

Below is the text of our blogger's Reply. As always, the footnotes and Exhibits in the PDF add color. Hope to post the PDF's real soon. In the meantime, use your free PACER account to view them for case 11-CV-1896 in the Arizona District Court.

---

OVERVIEW

Plaintiff replies to defendants' response, follows through with new evidence alluded to in my motion, and quotes a recent ruling on Judicial Bias from the Ninth Circuit from a case in Arizona.

MEMORANDUM AND POINTS OF AUTHORITIES

Defendants see bias favorable to them

It's said you can't make an argument from silence. Even though defendants were silent in their response, they have not been entirely silent on this matter.

After I filed my complaint, I received the usual Consent to Exercise of Jurisdiction by a US Magistrate Judge (form AO 85) from the court. Instead of mailing the consent form to one defendant and asking them to forward it along to the other five and then mail it to the Clerk, I waited for the appearance of counsel. (In the expectation that defendants would use one attorney, which would be easier to deal with logistically.)

Immediately after learning of counsel (via Defendant's [sic] Motion to Dismiss (Doc. 18), received in the mail on Wednesday or Thursday), I sent opposing counsel the form a few days later (Saturday), along with a letter of explanation.

In my letter (computer copy attached in Exhibit 1), I sent the Ninth Circuit's Order that this District was under a judicial emergency due to Judge Roll's murder in Tucson. I suggested it would be a courtesy to the court to consent to a magistrate judge, especially in light of what a federal judge told some litigants in his court. (See letter.)

On the assumption opposing counsel desires to be courteous to the court, one would expect opposing counsel would be indifferent to consent.

Nevertheless, in an email follow up (Exhibit 2), opposing counsel declined to consent to a magistrate judge. Why? The inference—and the appearance— is that defendants wish to keep their former colleague as judge here.

Committee Assignments

In Plaintiff's Motion to Disqualify Judge Snow, I presumed it was easy to discover in which committees Judge Snow worked along side any of the defendants. (Doc. 25, 2:11) I have obtained such discovery.

Of course, Judge Snow knows whom he knows. But for the record, per Exhibit 3, Judge Snow worked with defendant Judge Brutinel in the Task Force on the Code of Judicial Conduct. And Judge Snow worked with defendant Judge Bales on the Committee on Judicial Education and Training. At a minimum, these associations establish the specter of personal bias toward defendants, requiring disqualification, per the Ninth Circuit.

The Ninth on Judicial Bias

Given that Judge Snow has served on the Task Force on the Code of Judicial Conduct, the following quotes should not be necessary. But for the record, I quote the Ninth Circuit on recusal.

Now, Chief Judge Kozinski has said, "Whenever I see a block quote I figure the lawyer had to go to the bathroom and forgot to turn off the [copy/paste] function on his computer. Let's face it, if the block quote really had something useful in it, the lawyer would have given me a pithy paraphrase."

It is true that I will cut and paste the following from the Ninth. But considering I would have said all this myself (and did say some of this sua sponte in my motion, Doc. 25), on the assumption that no one can say it better than the Ninth; and that it is, by definition, pithy; and that the same words carry more weight coming from the Ninth than from me, I submit the following text.

This is from Hurles v. Ryan, an "exceptional" case of first impression, as here. Most citations omitted.

A. Clearly Established Supreme Court Precedent

"A fair trial in a fair tribunal is a basic requirement of due process." Indeed, the "legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship." This most basic tenet of our judicial system helps to ensure both litigants' and the public's confidence that each case has been fairly adjudicated by a neutral and detached arbiter. An appearance of impropriety, regardless of whether such impropriety is actually present or proven, erodes that confidence and weakens our system of justice.

While most claims of judicial bias are resolved "by common law, statute, or the professional standards of the bench and bar," the Due Process Clause of the Fourteenth Amendment "establishes a constitutional floor." To safeguard the right to a fair trial, the Constitution requires judicial recusal in cases where "the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable." "The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias." Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S.Ct. 2252, 2262, 173 L.Ed.2d 1208 (2009). [FN3]

FN3. We cite to Caperton, the Supreme Court's recent decision regarding judicial bias, throughout this opinion. Although, as the dissent points out, Caperton is not controlling insofar as it announces new "clearly established Supreme Court precedent" that post-dates the state court decision at issue here, we refer to it where we find its analysis of established Supreme Court jurisprudence helpful to our resolution of the case. We read Caperton to announce no new rule of law that would affect our analysis here.

(*1310) . . . A claimant need not prove actual bias to make out a due process violation. Indeed, the Supreme Court has pointed out that it would be nearly impossible for a litigant to prove actual bias on the part of a judge. Caperton, 129 S.Ct. at 2262-63; ("[W]hen the trial judge is discovered to have had some basis for rendering a biased judgment, his actual motivations are hidden from view, and we must presume the process was impaired." It is for this reason that the Court's precedents on judicial bias focus on the appearance of and potential for bias, not actual, proven bias. Due process thus mandates a "stringent rule" for judicial conduct, and requires recusal even of judges "who would do their very best to weigh the scales of justice equally" if the risk of bias is too high.

In determining what constitutes a risk of bias that is "too high," the Supreme Court has emphasized that no mechanical definition exists; cases requiring recusal "cannot be defined with precision" because "[c]ircumstances and relationships must be considered." . . . The Supreme Court has just re-affirmed this functional approach. See Caperton, 129 S.Ct. at 2265-66. . . .

The Supreme Court's judicial bias doctrine has evolved as it confronts new scenarios "which, as an objective matter, require recusal." Caperton, 129 S.Ct. at 2259. The most basic example of probable bias occurs when the judge " `has a direct, personal, substantial pecuniary interest in reaching a conclusion against [one of the litigants].' " . . . (*1311) However, financial conflicts of interest are not the only relevant conflicts for judicial bias purposes. See Caperton, 129 S.Ct. at 2260 (explaining that judicial bias doctrine encompasses "a more general concept of interests that tempt adjudicators to disregard neutrality"). The Court has thus required recusal if the judge "becomes 'embroiled in a running, bitter controversy' " with one of the litigants; if she becomes "enmeshed in matters involving [a litigant],"; or "if the judge acts as 'part of the accusatory process,' At bottom, then, the Court has found a due process violation when a judge holds two irreconcilable roles, such that her role as an impartial arbiter could become compromised. . . ."

(*1315) The burden is on the judge to disqualify herself, even if a party never seeks recusal. . . . (“A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned.”) (emphasis added); see also, e.g., 28 U.S.C. § 455(a) (same). . . .

(*1321) Finally, the Supreme Court has never required evidence of “personal animus” in order to demonstrate judicial bias. . . . This comports with the Court's longstanding rule, which the dissent recognizes, that a petitioner need not demonstrate actual bias in order to succeed on his claim. See Caperton, 129 S.Ct. at 2262–63.

Since this story has been picked up in the Press (WND, a major news outlet on the Internet. See Exhibit 4 as an exemplar) and is probably headed for the Ninth, it is all the more important for the public's confidence in the Judiciary that this case is seen to be fairly adjudicated by a neutral and detached arbiter. Any appearance of impropriety, regardless of whether such impropriety is actually present or proven, erodes that confidence and weakens our system of justice.

Therefore, as it appears unseemly for a federal judge to sit on a case involving his former recent state court brethren/colleagues, public confidence in the judiciary and law requires the judge to disqualify himself and the burden is on the judge to do so here.

Reply on Motion to Disqualify Tom Horne (Arizona AG)

Judge Snow just recused himself Thursday. This motion to disqualify Tom Horne, the Arizona Attorney General, is still pending for the new judge to consider.

Our blogger is VERY disappointed in Tom Horne as Attorney General. In general, Horne doesn't seem any different than Terry Goddard. Maybe it's because his staff is still the same. We dunno. But we think he should fire this staffer . . . although her misquoting of case law makes it easier for our blogger to rebut.

Below is the text of out bloggers Reply. As always, the footnotes in the PDF add more color. Hope to post the PDF soon. Or go to your free PACER account and read it for yourself, with Exhibits. It's case 11-CV1896 in the Arizona District Court.

Pro se plaintiff files this reply under protest due to a Catch-22 situation. On the one hand, I am arguing that the Attorney General ("AG") must be disqualified from appearing for defendants. Thus, by replying to the AG's response, the Court might conclude I've waived my motion/objection to the AG appearing for defendants. I have not.

On the other hand, if I do not reply, the Court might conclude I agree with the AG's response. I do not.

Not wishing to forfeit a right to object, plaintiff files this Reply to Defendant's [sic] Response.

OVERVIEW

Opposing counsel continues to misrepresent the facts, misquotes case law and continues to create fallacious straw man arguments.

Happily, pro se plaintiff found two federal cases with good history which are instructive regarding disqualification of an AG by an opposing party.

Also, new facts have come in since the filing of this motion which further buttress my motion, further precluding the AG from appearing for defendants.

I will begin with these new facts, and then refute opposing counsel's arguments while folding in the instructive cases to aid the Court.

NEW FACTS

In the interest of judicial economy, especially since this is an Emergency action, to mitigate the necessity for a later motion for reconsideration, pro se plaintiff presents new facts not available beforehand.

Plaintiff has learned that Michael Roth of Quartzsite, Arizona, who has suffered the same injury at the hands of the defendant Justices (ZAC, Doc. 5 ¶ 61), recently filed a civil rights complaint with the AG against the defendant Justices in accordance with A.R.S. § 41-192(A)(7). (Exhibit 1) The AG cannot investigate the defendant Justices in a civil rights complaint and simultaneously defend them in court for the same civil rights complaint. Hence, a genuine conflict of interest.

Similarly, plaintiff recently learned, via a phone call to the Arizona Department of Public Safety ("D.P.S."), that my name has, in fact, been put on the FBI's NCIC database, listing me as a criminal Domestic Violence offender as a result of defendant Jones' civil action. Plaintiff dutifully obtained a subpoena from the Clerk of Court to obtain a printout of the D.P.S. computer screen. Plaintiff had it served on the appropriate agent of the D.P.S. and filed a Notice of such. (Doc. 28)

DPS has responded and refuses to comply with the subpoena, citing Arizona law. (See Exhibit 2.) Since this is material evidence for this complaint, I plan to move the Court for a motion to compel.

But, as stated in my Notice, this puts the AG in an impossible position. By statute, the attorney general is legal advisor to DPS. (A.R.S. § 41-192(A)(1)) Therefore, the attorney general will be advising a non-party how to respond to a subpoena in the same case where the attorney general represents a party.

REBUTTAL TO ARGUMENTS

As to Judicial Immunity & Entitled to Representation

Frankly, I can't follow opposing counsel's logic. While it's true that I argue that because defendants have acted outside the scope of their official duties, the AG does not have a statutory duty to represent them, opposing counsel adds the condition of "judicial immunity" to the mix. Counsel rehashes arguments from her Reply in Support of Motion to Dismiss (Doc. 26) eventually concluding with the statement, "As judicial immunity remains intact, the Defendants are entitled to AG representation."

But whether defendants have judicial immunity or not is not germane to plaintiff's instant motion. The issue here is not whether defendants are entitled to representation. Rather, the narrow focus is whether the AG can lawfully and ethically give them representation.

But if opposing counsel is arguing that if the defendants are not immune from this suit, then they are not entitled to AG representation, I'll happily accept the conclusion. Opposing counsel goes on to quote new material from Doc. 26, Swarthout v. Cooke. Swarthout is wholly off point here (a specific liberty interest created by state law which was outside the jurisdiction of the federal court). Still, since she brought it up, it helps make my case in my complaint regarding due process. Quoting at *861, "As for the Due Process Clause, standard analysis under that provision proceeds in two steps: We first ask whether there exists a liberty or property interest of which a person has been deprived [yes, my Second Amendment right] and if so we ask whether the procedures followed by the State were constitutionally sufficient." [It's the State that caused the constitutional violation!]

Opposing counsel tries to apply Swarthout by mischaracterizing the argument in my complaint. I trust the Court sees that the argument is not whether the Arizona Supreme Court (i.e., defendant Justices) are empowered to make administrative Rules. The argument is about one particular Rule.

Opposing counsel argues that defendants are entitled to representation by the AG, and only the AG, by way of A.R.S. § 41-192(A)(1). But that is not correct because that law is not absolute or binding per A.R.S. § 41-192(F) as I stated in my motion. (Doc. 23, 7:8-15)

Opposing counsel looks to exemptions in § 41-192(E) to beef up her strawman argument. Her argument is that, because the judiciary is not included in the list of exemptions, the judiciary must be defended by the AG. That is false.

First, § 41-192(E) specifically calls out (F), above, as an exemption. But (E) is about state agencies. That is distinct from a state "department," defined in Article III, like the judiciary. So (E) is not on point and counsel's argument carries no weight.

As an aside, it might be another fascinating precedent for this Court to rule whether § 41-192(A)(1) is, in itself, a violation of Article III of the Arizona State constitution, since it calls for the executive to be "the legal advisor" to the judiciary!

Counsel sites State ex rel. Frohmiller v. Hendrix to argue something off point about the legislature's method of preventing duplication and waste of state salaries. What? Frohmiller was about an in-State prosecution, where a state agency opted to prosecute in house, bypassing the AG. It is not about federal defendants. Still, there the court noted, "The records of this court, however, show that the deputy state auditor was at the time a regularly qualified and licensed attorney of the bar of Arizona" and thus, could act at bar for the agency. The same is true here. The defendants here are all qualified and licensed attorneys. Even if the federal court has jurisdiction to consider this dicta, there will be no duplication or waste if defendants defend themselves instead of the AG defending them.

Opposing counsel's cite of Hurles v. Superior Court cite is just plain wrong. The AG here merely quoted the AG there. "The Attorney General, claiming that the trial judge's status as a nominal respondent entitles her to defend the validity of her order . . . " (*332) But what the court actually ruled was, "Our holding that the judge's responsive pleading was improper makes it unnecessary for us to decide the propriety of the Attorney General appearing on her behalf." So then, Hurles does not find a judge is entitled to representation by the A.G. as this A.G. claims.

As to Standing to raise Conflict of Interest

Opposing counsel states as fact that "It is long established that a party must have standing, a threshold issue, to give a court jurisdiction to hear a motion, including a motion for disqualification of opposing counsel." (Emphasis mine.) But she does not cite any authority for the last phrase of her claim. Instead she cites cases involving standing of various "environmentalist wacko" groups.`

As to standing in general, it seems absurd that I should have to prove standing at this late date, an issue raised for the first time here. In addition to documentation in my ZAC and my Response to Defendants' Motion to Dismiss (Doc's. 5 and 22 respectively), this Court has already effectively granted standing. Using counsel's own logic, since the Court has ruled on my petition for a Temporary Restraining Order and my subsequent motion to reconsider the denial thereof, it has heard my motions. As such, the Court has taken jurisdiction and therefore, has conveyed standing.

Undeterred, opposing counsel overemphasizes dicta (and perhaps a poor choice of words) in an old case, Kasza v. Browner. Quoting her, she represents the Ninth as saying, "it is difficult to understand how a party could have standing to complain about another's representation when that representation has nothing to do with the complaining party."

Even if the quote from the Ninth were accurate and in context (it's not), AG's representation of defendants has everything to do with this complaining party. The AG is an elected official, the chief legal officer of the state. As such, he is MY attorney too. While he doesn't represent me as a named individual, he is obligated to represent me and all Arizona residents nevertheless, especially when the constitution is under attack.

Regardless, the quote above is not accurate. Here's the actual quote from the Ninth: "We have difficulty seeing how [plaintiff-appellant] has standing to complain about a possible conflict of interest arising out of common representation of defendants in different civil actions, having nothing to do with her own representation." In my instant case, the defendants are not in a different civil action but are in mine. And I've enumerated actual conflicts of interest in Doc. 23, 3-5.
Opposing counsel did not get the next quote quite right either. The Ninth said, "As a general rule, courts do not disqualify an attorney on the grounds of conflict of interest unless the former client moves for disqualification." But that is only a general rule, not an absolute. (Especially not absolute in a precedent setting case of first impression.) In fact, the Ninth goes on to consider whether there was a "basis" for conflict of interest in opposing attorneys, implying it might have acted to sustain disqualification had it found such.

Which brings us to two on-point cases. In the recent case of Pacheco v. Mitchell Associates, 2009 WL 1606066 (N.D.N.Y.), federal magistrate Judge Treece wrote "A motion to disqualify an attorney is within the broad discretion of the court. Since disqualification may impose a serious impact on a party’s right to an attorney of his choice, it should only be imposed when continued representation may pose a significant risk of taint upon the trial. [Plaintiff speaking: This part about "a party's right to an attorney of his choice" appears to be dicta. It is not supported by law for civil matters. The Sixth Amendment has been read to give such a right to choice of counsel only to criminal defendants.] Generally speaking, motions to disqualify are viewed with disfavor and the party seeking disqualification must meet a high standard of proof before disqualification will be granted. In deciding a motion to disqualify, courts often seek guidance from the American Bar Association (ABA) and state disciplinary rules . . . " Kasza has this last part too, acknowledging that local state Supreme Court rules govern the ethical conduct of the attorneys representing the defendants.

But one implication of this is that the defendant Justices would be the ones judging their own attorneys were I (or this Court) to bring an ethics complaint against them. I will amplify this conflict of interest shortly.

Pacheco then drifts off into specific questions of successive representation. Still, the central issue was conflict of interest, which shows disqualification is possible.

Now, more to the point is the case of Aruanno v. Booker, 2009 WL 1173438 (D.N.J.) In Aruanno, as in this instant matter, a pro se plaintiff sought to have a state AG disqualified from representing a state defendant in an § 1983 action. There, as this instant matter, state statutes were cited which authorized the AG to provide representation for state actors. (*2) But the Court cited the same exemptions that I have, that a state actor is not entitled to representation if the act or omission was not within the scope of employment, or the defense of any action would create a conflict of interest between the State and the state actor. In those instances, the Court acknowledged the Attorney General may refuse to provide for the defense of an action.

Unlike here, the pro se litigant Aruanno was a prison inmate who did not articulate any specific conflict of interests. (Frankly, his suit seems to be a "hail Mary.") Left with no specifics, the court essentially abstained and deferred to the Attorney General's self evaluation that he had no conflict of interest. But as with every other attempt to abstain, abstention will not work here. It is not viable in this unique case.

The logic is the same as it's always been. It is the Justices of the Arizona Supreme Court who ultimately decide ethics complaints, as in the current state matter to disbar former Maricopa County Andrew Thomas. So to abstain and defer to the AG's self-evaluation of ethics would put the defendant Justices in the position of judging their own AG for his ethics!

In fact, after conferring with the Arizona State Bar's Consumer Assistant Program specialist, I learned that the Arizona State Bar is an arm of the Arizona Supreme Court. That means that, were he so inclined, the AG cannot even call the Bar's Ethic Hotline for advice on this matter to ask if the Bar sees a conflict of interest. For calling the defendants for legal advice is a conflict of interest itself!

On the Attorney General as an Expert Witness

While it is true that plaintiff has not "retained" the AG as an expert, a F.R.Civ.P. Rule 26(a) Initial Disclosure is premature at this time. If I understand it right, no deadlines have been set via a Rule 26(f) conference requiring such. (Ironically, while opposing counsel wants a premature disclosure here, she argues later that a Rule 56 motion is premature.) In any event, it is not necessary to disclose an individual if their use "would be solely for impeachment." (Rule 26 (a)(1)(A)(I)). Counsel does not know what proposed testimony I might solicit from the AG.

Counsel goes on to cite In re Snyder to assert that "an unwilling expert cannot be forced to testify as to newly formed opinions." That's not what Snyder says.

First off, Snyder is from 1987. The Rules of Civil Procedure have been amended numerous times since then. In fact, there is no longer a stand alone Rule 26(b)(4), cited in Snyder in the passage to which counsel apparently refers. So Snyder may be wholly inapposite.

Next, Snyder does not say an unwilling expert cannot be forced to testify. Rather, in the first paragraph, the judge wrote, "This Order addresses the question whether a court can compel the author of a research report to serve as a witness in a lawsuit when the author is a stranger both to the events and to the parties involved in the suit." The AG is neither a stranger to the events or to the parties involved in this instant suit.

Moreover, a plain reading of F.R.Civ.P. 26(b)(4)(a) says, "A party may depose any person who has been identified as an expert whose opinions may be presented at trial." Clearly, the AG is an expert.

In Snyder, the only valid reason the court allowed for quashing a subpoena of an expert witness was that to testify would have been "unduly burdensome." That is not an issue here.

Counsel then cites U.S. v. Moran. Now, Moran was a criminal matter. Pro se litigant is not at all sure how applicable that case is to a civil procedure like mine, and a case of first impression at that. Nevertheless, while plaintiff realizes that ultimate issues of law are ultimately for a judge to decide (and so, per Moran, "'an expert witness cannot give . . . an opinion on an ultimate issue of law'"), the Ninth counters with "It is well-established that expert testimony concerning an ultimate issue is not per se improper.” Nationwide Transport Finance v. Cass Information Systems, Inc., 523 F.3d 1051 (9th Cir. 2008). The AG can testify.

One thing is certain: If the AG is not disqualified, this case may be forever tainted. Prudence and an abundance of caution says to err on the safe side and disqualify the Attorney General for appearing for defendants.

On Motion for Summary Judgment

While admittedly not articulated well, pro se plaintiff simply offered the Court that it might consider this instant motion as an ex parte Rule 56 motion (if there is such a thing) as an expediency in a Christian offer to help the AG from sinning further. (By not having to involve himself further.)

While it's moot now, I am content to leave it to the Court to determine if such a motion was premature. As a point of interest, an attorney acquaintance of mine filed a motion for summary judgment in this district (without a separate SOF) while a motion to dismiss was pending in his suit against the Governor. (11-CV-00495-ROS-PHX, Doc. 30)

As for any violations of Local Rules, LRCiv 83.6 provides for suspension of the rules as the Court sees fit.

THEREFORE, for any of the foregoing logic and given the actual conflicts of interest documented herein, it is necessary to disqualify the Attorney General from appearing on behalf of the defendants. While the Court might rule that some issues presented are not yet fully ripe for adjudication, it would spoil ("significantly taint") this action forever, and cause serious harm to plaintiff, were the Court to later find these salient issues in favor of plaintiff. Indeed, plaintiff is harmed if he cannot call the AG as a witness. The most conservative action is to act now and disqualify the AG.