Request to Impeach the Justices of the Arizoan Supreme Court

Arizona State Representative Kelly Townsend seems pretty cool and seems to be a defender of the Constitution. So please encourage her to bring impeachment proceedings against all the "Justices" of the Arizona Supreme Court, for their double unconstitutional violations, per this letter below. And to get our useless Attorney General Tom Horne to act here.

Rep. Townsend's office phone number is (602) 926-4467. Tell her staff you read it on the "Michael's Law" blog.

Mike Palmer
18402 N. 19th Ave., #109
Phoenix, AZ 85023

February 11, 2014


Representative Kelly Townsend
1700 W. Washington, Room 342
Phoenix, AZ 85007


Greetings Rep. Townsend:

Could I please schedule 30 minutes with your staff to discuss possible remedies to reign in the Justices of the Arizona Supreme Court in their doubly unconstitutional gun grab? The Justices have acted as Legislators, usurping your authority, by effectively rewriting a statute you all gave us.

But first, some housekeeping. I realize I'm not in your District. But then, neither is Jennifer Jones of Quartzsite. Still, Jade told me that you spoke with her, asking how you can prevent what happened in Quartzsite from happening to others. Similarly, even though it was Mr. Roth of Quartzsite who made national news when a judge there unlawfully revoked his Second Amendment right (simply because he called his councilman a "turd"), this is a statewide matter requiring your attention. What happened to Mr. Roth can happen — and already has happened — to others.

Specifically, the Justices of the Arizona Supreme Court have told judges throughout Arizona that they can revoke our Second Amendment right to keep and bear arms (as well as our Arizona Constitutional right to defend ourselves and families) via a mere civil injunction against harassment (IAH). They promulgate this lie via Rule 6(E)(4)(e)(2) of the Arizona Rules of Protective Order Procedure (ARPOP). Even a Phoenix police officer almost lost his job over this! (No gun = no job. It took an appeal. So the police unions know about it and could be your friends here.)

The Justices overstepped their bounds when they effectively made substantive law via ARPOP Rule 6(E)(4)(e)(2). Interestingly, they don't cite any statutory authority for their errant rule, as they do for all their others. That's because there is no authority. They made it up!

By doing so, the Justices have not only unconstitutionally revoked a constitutional right, they have also acted unconstitutionally to do it. (Hence, they acted doubly unconstitutionally.)

Specifically, when they rewrote your law to their liking, the Justices violated Article III of the Arizona Constitution (Distribution of Powers). In fact, they are intentionally taking language from our criminal Domestic Violence statute and adding it to their Rules of Procedure for civil injunctions. (I can show that they have been incrementally implementing language from the anti-gun Brady Campaign. They get grant money from the feds under VAMA as reward.)

In addition to a patent Article III violation, the Justices also violated A.R.S. § 12-109 when they made a rule of procedure that "abridges, enlarges or modifies substantive rights of a litigant." And they are violating their own case law that says same. (Marsin v. Udall , 78 Ariz. 309, 312, 279 P.2d 721 (Ariz: Supreme Court 1955)) Three strikes. They should be OUT!

That's because you, the Legislature, never provided for revoking our Second (or Fourth) Amendment rights via a civil injunction. (Seizing our weapons.) Indeed, the words "firearm" or "weapon" are not in the statue you gave us regarding civil injunctions against harassment. (See A.R.S. § 12-1809.)

Nor could you revoke our Second Amendment right via a civil action. Just from a common-sense view, that would makes us criminals (felons, who can't own guns) via a civil action!

Nevertheless, the Justices have liberally interpreted a phrase in § 12-1809, "grant relief necessary" to allow the revocation of a constitutional right.

But the Justices know that "relief necessary" does not allow them to force people to apologize to a "victim" in a civil IAH. That would be a violation of the 5th Amendment. They know they can't jail someone or put a GPS bracelet on them in a civil injunction. That would be a violation of the 4th Amendment. They know they can't quarter a police officer in someone's house to make sure they don't text. That would be a violation of the 3rd Amendment. And, as to the 1st Amendment, ironically, even the Arizona Court of Appeals recognizes that the government cannot revoke a constitutional right via a civil action. Over and over again they have ruled that civil injunctions against harassment are legal because they do NOT violate the First Amendment. (Carefully parsing that IAH's restrict "conduct," not speech.)

The 2nd Amendment is no less a right. This is political. The Justices are acting as liberal activist judges, promulgating their personal policy preferences. (Against guns.)

And even though the COA has similarly acknowledged that civil injunction law does not authorize revoking the Second Amendment, the Justices of the Arizona Supreme Court have "authorized" it anyway in ARPOP Rule 6(E)(4)(e)(2).

Mr. Roth and I have fought this issue in the Justices's public forum for more than two years now, with no success. The Justices are willfully being bad. We need you to act.

In order of decreasing sensationalism:

• I ask that you bring impeachment proceedings against all five Justices of our Arizona Supreme Court. I have an email from the Court's Chief Attorney stating they all acted to pass Rule 6(E)(4)(e)(2). Mr. Roth and I have put them on notice through their public forum and through a federal lawsuit that they are acting doubly unconstitutionally. They have acted knowingly, with malice aforethought. (Perhaps former Senate President Pearce has some insight here?))
• Since that ain't gonna happen, I ask that you ask our Attorney General to sue the Justices in federal court on behalf of the Legislator. (Remember, the AG's responsibility per statute is only to the Executive and Legislative branches.) The Justices violated our state constitution when they made law. And they're violating A.R.S. § 12-109. You can't sue them in their own court, where they'd be judging themselves. You need to go federal. As the Legislative branch, you have the authority to challenge the Judicial branch in Check & Balance fashion. And to bring legal charges against the Judicial when necessary.
• Since that probably ain't gonna happen either, I ask that you formally ask the Attorney General for his opinion as to whether the Justices can make substantive law and/or are violating A.R.S. § 12-109. I believe you have the authority to do this as a Legislator, per A.R.S. § 41-193(7), which provides that the Attorney General shall "Upon demand by the legislature, or either house or any member thereof , . . . render a written opinion upon any question of law relating to their offices."
• Last, as a minimum, I ask that you put back language into A.R.S. § 12-1809 that used to be there years ago, and is still in Section K(2) of its sister law, A.R.S. § 12-1810. Namely, that a civil injunction cannot revoke a constitutionally protected right. (Or even more plainly, put in language that "relief necessary does not include deprivation of the Second Amendment or any other constitutionally protected right.")

Legislators should not be afraid of Judges. You have a constitutional responsibility to reign them in. They do not hesitate to reign you in. You should not hesitate to reign them in either.

So please, may I have an audience with your staff to discuss how best to rectify this doubly unconstitutional act by our "Justices"?


Thank you

Money Quote from the Arizona Court of Appeals

If you're a victim of an unconstitutional revocation of your Second Amendment via a civil injunction, use this quote from the Arizona Court of Appeals in your appeal. Better yet, quote this in a Notice to your judge before you challenge the injunction against you. By putting the judge on notice now that he can't take away your gun rights, you might save yourself a lot of aggravation in the future.

On October 18, 2012, the Arizona Court of Appeals ruled on a Second Amendment gun grab against a Federal Border Patrol Agent. (Thankfully, they gave the Agent his gun right back. He was going to lose his job otherwise. No gun = no job.) There is a great statement in the Opinion which pertains to "Michael's Law" and should settle the issue once and for all that a judicial officer in Arizona cannot legally revoke your Second Amendment right in a civil injunction.
 
The case is Mahar v. Acuna.

The case was about a criminal Order of Protection, a criminal domestic violence matter, which, per statute (right or wrong) allows a judge to take away your guns. (As opposed to a civil injunction, which does not. And which our blogger has been fighting for a few years now.)

While the overall case is not on-point for civil injunctions per se, the COA said something interesting in their ruling which is on-point for civil injunctions:

Our statutes do not authorize their use [orders concerning firearms] to discourage people from yelling or engaging in 'harassment' of the type proscribed by A.R.S. § 12-1809(R). Nor do our statutes authorize the use of firearms restrictions to provide incentives for positive behavior or to teach people a '[l]esson' about civilized conduct.

And that's from the liberals in Tucson! (Division 2)

So the judges of the Court of Appeals get it, even if the Justices of the Arizona Supreme Court don't.

Cop and Border Patrol Agent about to lose job

It's no longer an "academic" exercise. This suddenly became very serious.

Our blogger got a call from a Phoenix cop a few weeks ago. (The cop had found this blog via Google.) Turns out a JP judge unconstitutionally (illegally) revoked our cop's Second Amendment right in a civil Injunction Against Workplace harassment!

Not only that, she went one better - she put the cop's name on the FBI's NCIC database as a "Brady Disqualification," listing him as a "prohibited possessor," a criminal domestic violence offender! But Brady is a federal law for criminal domestic violence only. Not for civil injunctions!

And there is no law in Arizona giving judges the ability to revoke your Second Amendment right in a civil injunction. The word "firearm" does not appear in the civil statutes. Unfortunately, no gun means no job for our poor victim cop.

This is a gun grab foisted on Arizonans by a run away, out of control, Arizona Supreme Court, who says it can foist a rule of internal administrative procedure (a Rule 28 rule) on all Arizonans. That would be like the Court saying that because all lawyers have to use 14 point font in legal pleadings, that YOU have to use 14 point font in all your writing. Ridiculous. And yet this blogger cannot get the Legislature to hold the Court accountable in this Article III power grab.

Our man is appealing his injunction. While we pray he wins (actually, we pray for justice), that does not solve the problem. The problem is that the Justices of the Arizona Supreme Court are acting outside the law. That makes them, not us, outlaws when they act to revoke your Second Amendment constitutional right.

Were are the police unions?

Well, it finally happened. Our blogger got a call a few weeks ago from an Arizona certificated Police Officer whose gun rights have been unconstitutionally and illegally revoked by way of a civil Injunction Against Workplace Harassment. In his case, as our bloggers case, this officer's name was put on the FBI's NCIC data base via Brady. (The cop found our blogger via these blogs.)

Our blogger wrote to several police unions in the Spring (PLEA, AZCOPS, FOP), warning them that this would happen. But none of the unions fought the Arizona Supreme Court in its unconstitutional power grab.

We hope the unions join the fight - albeit late.

The Lord rebuke you, Ninth Circuit judges

True Christians are not supposed say "God damn you" to anyone because 1) we can't tell God what to do, 2) we aren't to damn anyone ("'Vengeance is mine,' says the Lord"), and 3) even if we could damn people to hell, we don't know all the facts to know if someone should be damned. (Although, in fact, the odds are that most everyone is going to hell.)

The closest a true Christian can come to "damning" someone is to quote the archangel Michael's statement to Satan, the devil in Jude 1:9, "The Lord rebuke you!" (And it's clear from the Bible that Satan is going to hell. So if anyone could be damned to hell, it would be the devil. Yet Michael exercised restraint and did not exceed his authority.)

And so we say to three judges in the Ninth Circuit, "The Lord rebuke you!" For today, three judges issued a temporary injunction which allows mothers to continue to murder their unborn babies in Arizona.

The three judges are  KOZINSKI, Chief Judge, THOMAS and IKUTA

(Even though he's not a Christian, we have been impressed with Chief Judge Kozinski in his stand on judicial ethics. And he gets a lot of law right. We suppose, in his mind, he's simply going by man's law. Nevertheless, God will judge him for what he's done here.)

Not to diminish the fact that these judges are condoning murder, what makes this even more poignant for our blogger is that the Ninth Circuit is quick to uphold a "constitutional" issue when it comes to murdering babies, but the Ninth Circuit simply refuses to act to uphold one's Second Amendment constitutional right in Michael's Law.

And the hypocrisy! For the injunction above sued TOM HORNE, Attorney General of Arizona, in his official capacity; et al. Which is EXACTLY the same as when our blogger sued the Justices of the Arizona Supreme Court in their official capacity. Both suits sought only injunctive and declaratory relief. Yet, in the latter case, the Ninth Circuit claims you can't sue judges for that when they make up and enforce unconstitutional law. But you can sue Tom Horne when he enforces unconstitutional law?

We've lost track of the judges in the Ninth Circuit that have ruled against our blogger so far. We would have remembered if Kozinski was one of them. We'll try to check the record to see if Thomas and Ikuta are named.)

Petition to Rescind Unlawful Brady Disqualification

Below is an Emergency Petition to rescind unlawful Brady Disqualification, filed with the Prescott Justice Court on June, 11, 2012. (Here's the PDF of the filing with the usual colorful footnotes and an interesting Certificate of Service.)

It quotes Judge Emmet Ronan, Chair of the Arizona Supreme Court's Committee on the Impact of Domestic Violence and the Courts (CIDVC), stating that a Brady Disqualification cannot be issued ex parte, as Prescott did.

Despite Judge Ronan's clear statement, citing federal law (and, oh yeah, due process rights in the constitution), Prescott had not immediately acted to rescind its unlawful action.

PREAMBLE

Please know that Judge Markham is disqualified from hearing this petition due to conflict of interest. (See his Order, Appendix A.)

Plaintiff filed an ex parte civil Injunction Against Harassment on April 11, 2011. Ordinarily, such an Injunction would have lapsed by now. However, the Injunction was not served on defendant until five months later, until September 16, 2011. Therefore, this remains a live controversy.

Pro se defendant Peter M. Palmer files this emergency petition asking the court to simply correct its error and immediately rescind its unlawful Brady Disqualification against defendant, as it did in the past with this same error with this same defendant and plaintiff. (See Exhibit 1, a previous order from this court granting a similar petition to rescind Brady Disqualification three years ago.) Quite simply, Brady does not apply because this is not a domestic violence matter.

Please note that defendant is NOT invoking his right to challenge or modify the Injunction proper at this time. Defendant is not asking for a hearing at this time. (Defendant reserves that right for a later time.) Nor is a hearing necessary to adjudicate this petition. Defendant is simply asking the court to comply with state and federal law, to rescind its unlawful Brady Disqualification, per the memorandum and point of authorities below.

MEMORANDUM AND POINTS OF AUTHORITIES

This matter arises out of an ex parte hearing for a civil Injunction Against Harassment where the court issued an ex parte injunction prohibiting defendant from possessing firearms, issued on April 11, 2011, but not served on defendant September 16, 2011. As such, it remains in effect until September 16, 2012.

Defendant has subsequently learned from the Arizona Department of Public Safety (DPS) that, as a proximate result this court's action, defendant's name has been entered into the FBI's National Crime Information Center (NCIC) Database, listing him as a "criminal Domestic Violence offender" and "Brady Positive." Defendant has essentially been reduced to a criminal—a felon (prohibited possessor) by way of a civil action. Without a trial! Defendant asks the court to correct it's erroneous notification to the Yavapai County Sheriff.

First and foremost, the controlling law for civil Injunctions against Harassment, A.R.S. § 12-1809, does not provide for firearm restrictions. The words "firearm" or "weapon" are not in the statute. Therefore, Brady cannot apply.

Consistent with this, 18 U.S.C. § 922—the very law this court cites as the basis for the “Notice to Sheriff of Brady Disqualification" it transmitted to the Yavapai County Sheriff—applies only to “intimate partners.” Per 18 U.S.C. § 921(a)(32), “the term ‘intimate partner’ means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.”

But per plaintiff's sworn petition, plaintiff and defendant have never been "intimate partners." Defendant is merely plaintiff's ex-husband's friend. This is not a criminal DV situation, but a civil IAH. As such, there is no basis for Brady Disqualification and therefore, Brady cannot apply.
Even if Brady could apply to civil injunctions, it cannot apply ex parte. Judge Ronan, chair of the Arizona Supreme Court's Committee on the Impact of Domestic Violence and the Courts, has unequivocally stated that, by law, "Brady also has due process requirements that must be met. Brady applies only if the [criminal domestic violence] protective order was issued at a hearing of which the defendant received actual notice and in which he or she had an opportunity to participate. 18 U.S.C. § 922(g)(8). Therefore, Brady cannot apply to an ex parte hearing, regardless of the parties’ relationship." And yet, contrary to Judge Ronan and federal law, this court has applied Brady to an ex parte hearing, depriving defendant of due process.

Thus, for any or all these reasons, when this court sent a Brady Notification to the Yavapai County Sheriff's office listing the defendant as "Brady Positive" and a "Criminal Domestic Violence offender," this court erred and violated state and federal law. Defendant simply asks this court to comply with the law.

REQUESTED RELIEF

Therefore, because Brady does not apply here, defendant simply asks the court to correct its error and immediately order the Yavapai County Sheriff Office to remove defendant's name from the NCIC, as it did previously in May 2009. (Per Exhibit 1.)

Additionally, given the prior history that's accrued, defendant has learned from DPS that, even when the Sheriff sends a "Brady Negative" notification to the FBI, the black mark never goes away. According to the DPS, even though my previous Brady Notification was rescinded, I still show on the NCIC as having a history of domestic violence. But I'm still a virgin! I've never been domestic with anyone. Unless this court takes affirmative action to correct the record, I will be forever listed as a prior criminal domestic violence offender as a result of mere civil injunctions. As a result, I will suffer whenever a criminal background checked is performed on me. (I have confirmed that the NCIC is not correctable by private individuals. Like the TSA's "No Fly list," the record is not subject to FOIA requests.)

Therefore, since it is this court who has caused this harm, I ask the court to order the sheriff's office to pursue the procedure to correct the errant NCIC record, to purge my name from the FBI's NCIC database (and also Arizona's Criminal Justice Information System (ACJIS)) in this instant action and the May 2009 one, both caused by unlawful Brady Notifications against me by this court.

Defendant requests an Order from the court rescinding Brady, and a copy of orders from this court instructing the Yavapai County Sheriff that Peter Michael Palmer's criminal "domestic violence" history be purged from the FBI's and State's record. Last, defendant requests confirmation from the Yavapai County Sheriff that his name has, in fact, been purged from the NCIC.

Motion for Reconsideration

As we said on our previous post, having shown cause as to why the Justices of the Arizona Supreme Court are not immune from suit in this instance, the Ninth Circuit moved the goal posts on our blogger. The Ninth cited a new, totally off point case to dismiss our blogger. So he filed a Motion for Reconsideration. (below)

In a way they make it easier to defend when they do stuff like this, as he was able to show at three places why the case the Ninth cited for dismissal is totally off-point here.

Again, interestingly, Tom Horne (the Attorney General for Arizona) had no comment on this Motion. We hope someone read him the riot act on this lawsuit and he's backed down from defending the Justices. (Although he has not filed a Notice of Withdrawal.) Too bad he didn't to the right thing from the beginning.

(We hope to post the PDF version, with colorful footnotes, real soon.)

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 11-18040

PETER MICHAEL PALMER,

Plaintiff - Appellant

vs.

KENTON D. JONES, et al.,

Defendants - Appellees.



APPELLANT'S MOTION FOR RECONSIDERATION
OR CLARIFICATION

Pursuant to Rule 27-10, plaintiff/appellant asks the Court to reconsider or at least explain its Order of February 28, 2012 (Attachment A) stating that "the questions raised in this appeal are so insubstantial as not to require further argument."
Frankly, that can't be right. If nothing else, there haven't been any questions raised on appeal because I haven't filed an appeal brief, let alone an "unimpressive" one. (Quoting from the Circuit's standard of U.S. v. Hooton.) If my case truly were insubstantial, then one of the two District Court judges would have thrown it out as frivolous. Or the motions panel would have ruled it was insubstantial before ordering me to show cause about immunity. Frankly, the motions panel is moving the goal post on me in what appears to be an attempt to spike this ball.

If I could, I would argue in this Motion that the Court must have overlooked or misunderstood the facts and points of law in this case. But that's impossible to do since the Court did not articulate any basis for its Order.

Nevertheless, I will argue why the Court's standard of Hooton is wholly inapposite here and why the District Court's dismissal should be reversed. I will also argue why the District Court should be ordered to grant me an immediate Preliminary Injunction, as per my Zeroth Amended Complaint. (Doc. 5.)

INTRODUCTION

After the District Court dismissed my §1983 action suggesting, in dicta, the defendants have judicial immunity, I filed a somewhat inartful Emergency Motion for a Preliminary Injunction and/or a Notice for Priority Status. Instead of granting either, the motions panel ordered me to show cause as to why the defendants aren't immune from suit. Which I did. But now, after having successfully shown cause (i.e., scored a touchdown), the panel has moved the goal post on me, saying my case is insubstantial, citing the ubiquitous U.S. v. Hooton. But Hooton is totally off point in my matter.

ARGUMENT

First, Hooton only applies to nonemergency situations. But mine IS an emergency situation. I filed an Emergency Rule 27-3 Certification saying so. Because I am—and countless other Arizonans are—currently suffering legal irreparable harm (and may suffer literal irreparable injury—death) due to an actual deprivation of a constitutional right (directly attributable to the defendants and only the defendants), my case cannot be insubstantial.

Further, absent law (and contrary to law), my name has been put on the FBI's National Crime Information Center's database as "Brady Positive." (Colloquially known as a "Brady Disqualification.") I am currently listed as a criminal domestic violence offender by way of an ex parte civil action. (Doc. 31 at 2:16-21.) This emergency situation is the fault of the Justice defendants who, through their judicial officers, are promulgating—and enforcing—an internal "administrative" Rule of theirs as substantive law on Arizona citizens. (And thus are violating Article III of the Arizona constitution too.)

The Justice defendants have unconstitutionally deprived me of my constitutional right to "to bear arms in defense of himself" (and my family and friends), in violation of Article 2, § 26 of the Arizona Constitution. Please, I am not a federal judge who has the federal government defending him. I have to defend myself and others in an evil world.

In addition to the constitutional deprivations, the Brady Disqualification is a violation of federal law at two points. Per 18 U.S.C. § 922(g)(8), Brady cannot apply to an ex parte hearing. Second, Brady only applies in criminal Domestic Violence situations, not civil injunctions.

Now, this Circuit has repeatedly affirmed that "an alleged constitutional infringement will often alone constitute irreparable harm." Consistent with this, this Circuit enjoined our Arizona Governor from depriving citizens of our Fourth Amendment right in SB 1070. Presumably this Circuit would likewise enjoin our Governor for a violation of the First or Fifth Amendment, or the money saving act of quartering our National Guardsmen in people's homes in times of peace. (A violation of the Third Amendment.) Mine is not an alleged infringement, but an actual one! A Second Amendment infringement is not distinct from a First, Third, Fourth or Fifth. Nor should the fact that it's the Judicial Branch who infringes on a right, and not the Executive, distinguish how this court acts.

Second, Hooton says "Motions to affirm should be confined to appeals obviously controlled by precedent." But there is no obvious precedent for my case where a State Supreme Court has gone rouge! Where Justices made up—and enforce—their own law! Even if, ordinarily, the Justice defendants had immunity, immunity cannot apply in this case of first impression. This case must be heard.

Last, Mr. Hooton asked the appeal court for something it could not give, which made his appeal insubstantial on its face. I haven't yet filed a brief, which makes the instant Order premature. But if I did, I would ask this Court to reverse the District Court's dismissal and remand the case, something this Court can do.

CONCLUSION

Therefore, for all these reasons, Hooton is wholly inapposite at this time and the Court must reverse its February 28 Order.

Furthermore, this exercise has obviated the need for me to file an appeal. Since I have shown in my response to the OSC that the defendants are not immune from suit, my response effectively "short-circuits" the need for a formal appeal. That is, my primary issue on appeal would have been "Did the district court abuse its discretion when it dismissed the case on the basis of judicial immunity?" This court, by its silence, has conceded that the answer to the question is "Yes," making a formal appeal unnecessary.

Moreover, in addition to being a genuine 27-3 Emergency, your Rule 27-12 requires this appeal be expedited since "in the absence of expedited treatment, irreparable harm may occur or the appeal may become moot." I've already pointed out I am currently suffering harm and, unable to defend myself, that harm may truly become irreparable. But also this appeal will become moot on September 12, 2012 when the one year injunction against me expires. (Assuming another unlawful civil injunction is not sought against me by my antagonist.)

Therefore, citing FRAP 2 for authority to suspend the rules to expedite this highly unusual matter of first impression, I ask this Court to craft an Order immediately reversing the dismissal by the District Court and further ordering the District Court to grant me an immediate preliminary injunction so as to restore my constitutional rights and the status quo, enjoining the defendants from enforcing their administrative Rule 6(E)(4)(e)(2) of their Rules of Protective Order Procedure as law in Arizona. This is no different from what this Court did with Arizona's SB 1070, except the government defendants are different here.

Pro se plaintiff is aware of this court's stated prejudice that "motions for clarification, reconsideration or rehearing of a motion are disfavored by the Court and are rarely granted." And that "The filing of such motions is discouraged." (Note 4 to Rule 27-1) Nevertheless, this Court has left me no choice. It's not in the best interest of judicial economy to petition the SCOTUS for a writ of certiorari without any articuable facts from this Circuit about its Order. If the Court denies my motion for reconsideration (i.e., will not reverse itself and the district court), then I ask the court for "clarification" please, thoroughly explaining its reasons for its February 28 Order invoking Hooton.

I submit that if the Court denies my motion for reconsideration, it has effectively implicated the First Amendment by foreclosing on my right to redress, which will become an issue for review before the Supreme Court. (I cannot sue the defendants in their own court. This has to be tried in federal court.)

Really, this is a simple, albeit politically-incorrect case. Please grant me justice. If the Court needs a definition of justice, it is simply what you would want if this happened to you.

I have contacted opposing counsel. She has "no comment" on this Motion.

Dated March 13, 2012.


Certificate of Service:

Copies of the foregoing mailed under protest via
U.S. Mail on March 13, 2012 to:

Pamela J. Linnins
1275 W. Washington
Phoenix, AZ 85007

Is it over?

Our blogger just received an Order from the Ninth Circuit regarding the Order to Show Cause. They are blowing off the Second Amendment to the U.S. Constitution.

Here's the Order:

Before: LEAVY, THOMAS, and CHRISEN, Circuit Judges.

A review of the record and the response to the January 11, 2012 order to show cause indicates that the questions raised in this appeal are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (per curiam) (stating standard).

Accordingly, we summarily affirm the district court's judgment.

AFFIRMED.

Looks to us like the Ninth sidestepped the issue. They are affirming the lower court's decision to dismiss, implying the Justices are immune from suit. Even when there are no monetary damages.

The Motions Panel said "the questions raised in this appeal are so insubstantial as not to require further argument." They cite an early case about this, where some prisoner filed an appeal to reduce his sentence, which wasn't an appropriate appeal.

But the Order to Show cause was supposed to narrowly focus only on the question of whether the Arizona Supreme Court Justices had absolute immunity from suit when no money is involved. (The WSJ reported last week about Delaware judges being sued in federal court. Immunity wasn't an raised there.) The Motions Panel didn't rule on immunity per se. There were no other questions "on appeal." The case hadn't gotten that
far.

Ironically, this was a case of first impression. It is not insubstantial, by definition. Looks like they don't want to deal with it. (Usually the court will take a few pages to tell you why you're so wrong. We figure here, as with the prejudiced Judge Snow's Pontius Pilate-like three sentence ruling, that when they don't take the time to tell you why you're wrong, you're probably right.)

The upshot is that the Arizona Supreme Court justices can make up whatever law they want (by promulgating an internal rule of procedure as law) and it can't be challenged.

Lawless.

Funny how the Ninth will take time to rule on Michael Newdow's "under God" suits, but not a Second Amendment constitutional issue.

If you prayed, thanks for your prayers. We think our country is reaping what we've sown.

If our blogger can figure out if he's allowed to do it and how, he may file to have the entire Ninth circuit weight in on this matter.

No response from Tom Horne!

Our blogger responded on February 1 to the Ninth's Order to Show cause (as to why the Justices of the Arizona Supreme Court do not have absolute immunity in a suit seeking only declaratory and injunctive relief).

The Arizona Attorney General's response was due ten days afterward. (Mr. Horne should have disqualified himself for conflict of interest.)

Nothing received. In an answer to an inquiry, Pamela Linnins, Asst AG, says,

Thank you for your inquiry. I did not file a response re: the OSC.

Pamela Linnins
Assistant Attorney General
Office of the Arizona Attorney General

Showing Cause

Show cause letter went out yesterday, showing why the Justices of the Arizona Supreme Court and Judge Kenton Jones are NOT immune from a suit seeking declaratory and injunctive relief.

Office of the Clerk
USCA for the Ninth Circuit
PO Box 193939
San Francisco, CA 94119-3939

February 1, 2012

Plaintiff has been ordered to show cause as to why summary affirmance of the district court's judgment, granting defendants' motion to dismiss (based on judicial immunity), is not appropriate. In other words, I am to show cause why this case should not be summarily dismissed by the appeals court. This I will do.

The court did not specify the form of response in its order. Therefore, in the spirit of the Ninth's gracious FRAP 28-1(c) for unrepresented parties, pro se plaintiff has taken the liberty of responding informally in the form of a letter to the court. This is consistent with a recent precedent from this court (from July 2011) where the merits panel ordered the U.S. Government and Log Cabin Republicans to similarly show cause why their case should not be dismissed. (Case No. 10-56634, Order filed July 11.) That panel ordered the responses take the form of letters to the court. Since both were represented parties, it seems there can be no harm for this unrepresented party to respond similarly.

If this is not satisfactory, I ask the court for guidance as to the format desired and a fourteen (14) day extension of time to comply.

Background

Some background is needed to set the stage for arguments to follow.

This case has been reported in the national press as "Michael's Law," in honor of Michael Roth of Quartzsite, Arizona. (A three minute video tells the story. www.youtube.com/watch?v=tcznFkhpOIY.) Mr. Roth made news when his Second Amendment right was unlawfully revoked by a local judge for calling a Quartzsite town councilman a "turd."(Doc. 5 at 14:12) After the story came out in the news, Mr. Roth's judge vacated her unlawful ex parte order sua sponte, admitting "the Injunction does not conform to Arizona statute." (See Doc. 22, Ex. 2.)

A few months after Mr. Roth's experience, I too was served with an ex parte civil Injunction Against Harassment . . . for blogging. Absent required legal notice by statute (A.R.S. § 12-1809(E)), defendant Judge Jones issued the injunction on behalf of a woman who lives 120 miles away from me. (Doc. 5, ¶¶ 19, 20 and Exhibit 1.) The civil injunction was ostensibly issued in accordance with Arizona Revised Statute § 12-1809.

But in addition to the usual "no contact" provisions, the Injunction also prohibits me from possessing firearms. (Id. ¶ 36) This is the foundational constitutional issue that forced this federal action. Arizona law does not provide for prohibition of firearms in civil injunctions. The words "firearm" or "weapon" are not in the statute. The Justice defendants promulgate an internal "rule of procedure" as law on Arizonans via their (the Justices') judicial officers.

As a result, absent law, my name has been put on the FBI's National Crime Information Center's database as "Brady Positive." (Colloquially known as a "Brady Disqualification.") I am currently listed as a criminal domestic violence offender. (Doc. 31 at 2:16-21.) All by way of an ex parte civil action. In addition to the constitutional deprivations, this is a violation of federal law at two points, per 18 U.S.C. § 922(g)(8). First, Brady cannot apply to an ex parte hearing. Second, Brady only applies in criminal Domestic Violence situations.

I had battled this same unlawful Second Amendment deprivation in an Injunction years before—and won—from this same Arizona court (but not the same judge.) (Doc. 5, ¶¶ 39, 40 and Ex. 6.)

Some time after that, I tripped across the Arizona Supreme Court's Arizona Rules of Protective Order Procedure ("ARPOP") on the Internet. On their website, defendant Justices state that their internal rules (which ostensibly includes the ARPOP) are "rules of procedure for the courts of this state." (Attachment A.) The ARPOP is a handbook for judges, a CliffsNotes of sorts, on the desperate laws regarding "restraining orders" in Arizona. It is not law. (Id. ¶¶ 47, 48)

In general, the rules in the ARPOP echo our state laws and refer back to the Arizona Revised Statutes for support. But not Rule 6(E)(4)(e)(2) which says, "The judicial officer shall ask the plaintiff about the defendant's use of or access to weapons or firearms. The judicial officer may prohibit the defendant from possessing, purchasing or receiving firearms and ammunition for the duration of the Injunction Against Harassment." There is no statute cited for this Rule because the Arizona Legislature did not provide for firearm restrictions in Injunction law. (A.R.S. § 12-1809)

Trying to be a good citizen and trying to save my fellow man from the same
harm I suffered, in December 2009 I dutifully filed an emergency petition in the Arizona Supreme Court's public forum. I petitioned the defendant Justices to rescind Rule 6(E)(4)(e)(2) of the ARPOP on an emergency basis because it violated the fundamental right to "bear arms" guaranteed in the U.S. and Arizona Constitutions, and because there is no law to substantiate the rule. (Id. ¶¶ 51, 52)

While this was pending, the Arizona Legislature and Executive fully recognized that “the right of the people to keep and bear Arms shall not be infringed” when they allowed us to carry concealed without a permit. (A.R.S. § 13-3102)

On August 31, 2010, the Arizona Supreme Court "rejected" my petition without comment in the forum. However, on September 7, 2010 I received an email from the court's Chief Staff Attorney: "The justices asked me to let you know that, although your proposal in this matter was rejected, the Court believed some of your argument deserved further consideration. Therefore, the matter has been referred to the State Bar Family Law Practice and Procedure Committee to consider and recommend to the Court standards to guide judges in their decision whether to prohibit possession of firearms during the pendency of an injunction against harassment." (Id. 5, ¶¶ 53, 54) But as of this writing, the defendant Justices have not repealed their baseless Rule.

I now find myself again the victim of a deprivation of a fundamental constitutional right as a result of the defendant Justices' rule, as have other Arizona residents, like the aforementioned Michael Roth.

I have exhausted my administrative remedies. To fight this again in state court might cure a symptom but it will not cure the disease. The issues here continue as a live controversy. This matter requires prospective relief. (Prospective relief in the form of an injunction against Rule 6(E)(4)(e)(2) will have the salutary effect of instant relief here.) These deprivations will never end unless a federal court intervenes. Which brings us to this appeal and this show cause letter.

Unfortunately, in the district court's dismissal order, he did not specifically articulate which of opposing counsel's immunity arguments he found availing. Instead, ruling virtually in dicta, by way of a footnote (citing Defendants' Motion to Dismiss, Doc. 18 at 4-6), the court implied that all of opposing counsel's arguments are correct. Since the district court did not refute my case law to the contrary nor acknowledge the flaws and mischaracterizations that I called out in opposing counsel's cites, it is impossible to know which arguments to argue against here. Thus, I am forced to rehash them all. In the interest of justice I ask for leave if I have exceeded a page limit in doing so. (Word count = 4730.)

Arguments

I. Summary dismissal is not an option in a case of first impression

As best this pro se litigant can tell, this is a case of first impression due to the office of the defendants and what they've done. (And the Arizona State attorney general and what he's doing.) As such, there are several original issues of law which need to be settled which can set precedent. Ironically, a new precedent setting issue raised by this court itself is whether judicial immunity can be grounds for summary dismissal in this unique case of a civil rights action against the Justices of a state court charged with unconstitutionally codifying and enforcing their own unconstitutional "law."

Ironically then, my first argument as to why this case should not be summarily dismissed is simply because this is a case of first impression. Implied in a case of first impression is that previous negative precedents don't necessarily apply. So even if judicial immunity might ordinarily apply, it might not here. Also, since precedent setting cases are uniquely the purview of appellate courts, summary dismissal is not an option. In a "Rule of Necessity" sort of way, even if defendants could have immunity, it is necessary for the court of appeals to set aside immunity so it can hear and decide original issues of law.

II. Summary dismissal not ripe for judgment.

Similarly, part and parcel of deciding judicial immunity is first deciding all that follows below. Before the court can determine if judicial immunity applies, it must first fully hear my case in order to determine if the defendants acted outside their judicial authority. Therefore, there is the issue of ripeness here and summary dismissal would be premature.

III. State defendants are not summarily immune from suit because . . .

A. . . . there is no liability (monetary damages).

In opposing counsel's motion to dismiss, she begins with an off-point straw man stating "It is a well-settled legal principle that judges have absolute immunity from liability for their judicial or adjudicatory acts" citing the usual cases of Forrester, Mireles, Stump and Pierson. (See Doc. 18, 4:10-15.) But as counsel acknowledges in her FN2 (Id. at 4) I am not suing for monetary damages. So her straw man is wholly inapposite to this action which seeks only declaratory and injunctive relief. Since I am not seeking monetary damages, there is no liability or "personal consequence" here. Thus, English common-law, the landmark Bradley v. Fisher and subsequent progeny do not apply. (Id. 4:16-20)

Nevertheless, opposing counsel then quotes a draconian broad brush statement from Mireles v Waco, (502 U.S. 9, 112 S.Ct 236, 116 L.Ed.2d 9 (1991)), that "judicial immunity is an immunity from suit, not just from ultimate assessment of damages." But again, Mireles was about money. (At *10, "Waco demanded general and punitive damages.") So Mireles isn't applicable to my case and immunity from suit does not attach.

B. . . . there are no judicial acts.

Even if Mireles were applicable, opposing counsel's quote it is not as fatal as it sounds. This is the famous case where Judge Mireles arguably assaulted a public defender. The Supreme Court didn't say judicial immunity was always applicable. "Rather, our cases make clear that the immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Forrester v. White; Stump v. Sparkman. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction. Bradley v. Fisher." (*11, detail citations omitted.)

Now, in Defendants' Reply to Plaintiff's Response, opposing counsel will tell you that I "argue ad nauseam that defendants have acted outside their judicial immunity." (Doc. 26 at 2:23.) In poker, that's called a "Tell." Opposing counsel is telling you that even she sees the problem here. Let's put our cards on the table.

i. Let's consider the defendant Justices first. Even though liability is not in play, the Justices meet both of the Mireles circumstances/exceptions above anyway.

Per the Background discussion, the crux of this federal action is that the defendant Justices of the Arizona Supreme Court have acted to make (and enforce) a rule of procedure which prohibits firearms in civil injunctions even though controlling state law does not mention firearms. When enforced by judicial officers of the courts of this state, this rule of procedure deprives Arizona residents of a constitutional right, which makes the action unconstitutional on its face. Moreover, since the defendant Justices are prohibited by Article III of the Arizona constitution (Distribution of Powers) from making law, their action is doubly unconstitutional. Therefore, the Justices have engaged in nonjudicial actions by definition.

Opposing counsel tries to muddy separation of powers twice. First, in her Motion to Dismiss (Doc. 18 at 6:12-18), she claims the judiciary is immune because its rule-making function is "legislative" which imparts "legislative immunity."

Her language is from Supreme Court of Virginia v. Consumers Union of United States, 446 U.S. 719 (1980), upon which she relies. But Virginia was an action against Justices of a state Supreme Court who were properly exercising their statutory authority over members of the State Bar by making (legislating) rules of discipline for attorneys. Unlike the Virginia Justices with their rules of ethics for officers of the court, the Justices here do not have statutory authority to legislate rules of procedure to discipline residents of Arizona at they see fit. (To prohibit firearms in a civil injunction.) They cannot be immune when they do.

Consistent with this reasoning, the First Circuit distinguished Virginia two years later in In re The Justices of the Supreme Court of Puerto Rico, In re Colegio De Abogados de Puerto Rico, 695 F.2d 17 (1st Cir, 1982). There, "The Justices' argument that they are simply immune from suit for injunctive or declaratory relief is wrong; . . . injunctions can be issued against judges in an appropriate case." (*25) Mine is such an appropriate case. Note that Chief Justice Roberts did not claim judicial immunity when sued in "The Inaugural Case." (Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir., 2010))

Opposing counsel muddies a second time in her Reply (Doc. 26 at 3:21-24) claiming the Justices have immunity because they are acting under the Arizona constitution's rule-making authority. Again, that fails because the Justices do not have legislative rule-making authority over Arizona residents.

I do not dispute that defendant Justices have "power to make rules relative to all procedural matters in any court," per Ariz. Const. Art. VI, § 5(5). The issue here is not whether the Justices can make internal rules for their courts but whether they have the power to make rules like Rule 6(E)(4)(e)(2) that have substantive legal effect on all Arizonans. Article III of the Arizona Constitution says they do not. That power is an enumerated power for the Legislature only. It would be like the Justices making a rule of procedure calling for 13 pt. font in court filings (which they're allowed to do) but forcing that rule on any Arizonan outside of court. The Justices do not have that power over Arizonans and are not immune here.

ii. Similarly, defendant Jones is not immune because his actions were nonjudicial.

First, defendant Jones swore an oath, per Ariz. Const. art. VI, § 26, that he would "support the Constitution of the United States and the Constitution of the State of Arizona . . . " He did not swear to support "rules of procedure for the courts," especially those Rules which violate both constitutions. By depriving me of my constitutional gun rights absent law and by putting my name ex parte in the NCIC data base in violation of 18 U.S.C. § 922(g)(8) (a due process violation), he acted outside the Constitutions. Therefore, he engaged in nonjudicial acts.

And per Background, because defendant Jones did not comply with Arizona statute when he issued an ex parte Injunction against me (did not give legal notice required by statute (A.R.S. § 12-1809(E)), his entire action was absent statutory authority. He deprived me of due process. By acting outside the law, he forfeits whatever judicial immunity he might claim as a judicial officer.

In an attempt to deflect my due process argument, opposing counsel cited Swarthout v. Cooke, 131 S.Ct. 859 (2011) in her Reply. (Doc 26 3:13-18.) She liberally rewrote Swarthout to say "it is long recognized that a mistake in the application of law is not a violation of due process." That's not what the SCOTUS said. The actual quote is "we have long recognized that a mere error of state law is not a denial of due process.” This is not a "mere error" but a major error of the first magnitude—a constitutional violation!

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 constitutional rights] and if so we ask whether the procedures followed by the State were constitutionally sufficient." The chair of the Arizona Committee on the Impact of Domestic Violence and the Courts admits that Arizona restraining order law does not have "the same procedural due process requirements" as federal law. (Comment of Arizona Superior Court Judge Ronan In the Matter of Petition to Repeal Rule 6(E)(4)(e)(2), No. R-09-0045, Arizona Supreme Court's public forum.) Therefore, it is agents of the State who have caused the constitutional violations and the State procedures are constitutionally deficient! Therefore, per Swarthout, the defendants are not immune and this case should not be summarily dismissed.

IV. Defendants do not meet the four-part test for absolute immunity.

Similarly, in Brewer v. Blackwell 692 F.2d 387 (5th Cir. 1982), "the court developed a four-part test for determining whether judges should be protected by absolute immunity in particular cases. Under the test a court is to inquire whether: 1. The act complained of is a normal judicial function; 2. The events occurred in the judge's court or chambers; 3. The controversy centered around a case then pending before the judge; and 4. The confrontation arose directly and immediately out of a visit to the judge in his judicial capacity."

A. As to the defendant Justices, they fail at 1: Making a rule that has no support in state statute but that has substantive legal effect on residents of Arizona is not a normal judicial function; and 3: There is no state case pending before the Justices.

B. As to defendant Jones, he fails at 1: Enforcing a procedural rule under color and threat of law (violation of a court order) that has no support in state statute and listing me as a criminal via an ex parte civil action is not a normal judicial function; and 3: Since he did not properly serve notice on me and since this was an ex parte action, I have no case pending before the judge. (Even more technically, the injunction has been kicked down to the Prescott Justice Court and is out of defendants Jones' bailiwick. See Doc. 22, FN 9)

V. FCIA of 1996 does not grant automatic immunity.

Opposing counsel quotes new language in the 1996 Federal Courts Improvement Act ("FCIA") to claim defendants have absolute immunity. (Doc. 18 at 5:20 ff.) But that is not what federal judge Zainey found in 2003 (after FCIA) after considering the Act in the very similar case of Leclerc, et al. v. Webb, et al. (270 F.Supp.2d 779).

In Leclerc, the defendant Justices of the Louisiana Supreme Court were sued in their official capacities for a rule-making function. Plaintiffs sought declaratory and injunctive relief. Judge Zainey reviewed the history of judicial immunity, 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 FCIA of 1996. After considering facts strikingly parallel to this case, judge Zainey said, "In sum, for the facial challenge Plaintiffs bring today, Defendants are the proper party defendants because they are charged with enforcing the allegedly unconstitutional rule. Thus, for a suit mounting a facial challenge Defendants are by clear implication being sued in their enforcement capacities." He continues, "Because Plaintiffs are mounting a facial challenge to Rule XVII and are not suing Defendants for any individual culpability in conjunction with Rule XVII, the 'judicial function' aspects of judicial immunity are not at issue here. Thus, the Court concluded that Defendants are not entitled to judicial immunity for Plaintiffs' claims." (Emphasis mine.)

Similarly in this instant case, defendants are charged with codifying and enforcing an unconstitutional rule. For the same reasons in Leclerc, FCIA is not in play. Defendants are not entitled to judicial immunity. Therefore, summary dismissal for same is inappropriate.

VI. Per FCIA there can be no immunity because a declaratory decree was violated.

This is a § 1983 action. According to FCIA, absolute immunity is not absolute even if a judicial officer is acting in his judicial capacity. FCIA says a judicial officer can be sued and injunctive relief can be granted when a declaratory decree was violated.

Now, you cannot get more declarative than the Constitutions of the United States (the Supreme Law of the Land (Article VI, Clause 2)) and the Arizona Constitution both which guarantee "the right to . . . bear arms," (See Ariz. Const. art. II, § 26) which the Arizona Legislature recently confirmed is a fundamental right of the people. Also, this ex parte injunction violates the decrees in the U.S. Constitution's Fifth and Fourteenth amendment along with the Arizona Constitution's Article III; Article II, § 8; and Article II, § 4. (See Counts, Doc. 5 at 18-25.) Because a declaratory decree of the highest order was violated, there can be no immunity.

VII. Per FCIA there can be no immunity because declaratory relief was unavailable.

Likewise, FCIA says that absolute immunity is not absolute when declaratory relief was unavailable. Opposing counsel insists that FCIA puts the onus on me to exhaust my "administrative remedies" (my words) by trying this matter in state court. But that argument fails. Opposing counsel should have read her own Virginia. "If prosecutors and law enforcement personnel cannot be proceeded against for declaratory relief, putative plaintiffs would have to await the institution of state-court proceedings against them in order to assert their federal constitutional claims. This is not the way the law has developed . . . "

But even if counsel were correct that I first have to exhaust all my administrative remedies, I have. I have fought this before in state court. And won. Then I petitioned the defendant Justices. And lost. I have done everything a good citizen is expected to do.

Opposing counsel suggests in Doc. 18, at 6:7 that I could take my case to the "Arizona state appellate court." Technically, that is not correct. Because my injunction has been kicked down to justice court, the highest I could appeal this matter is the Superior Court. Whichever, neither court has the authority to overrule the State Supreme Court's unlawful Rule. They cannot provide prospective relief.

And even if I could get before the Arizona Supreme Court, why would the Justices invalidate their Rule 6(E)(4)(e)(2) now if they haven't done so in a petition from two years ago? Thus, declaratory relief is patently unavailable. Therefore, per FCIA, even if the defendants are acting in their official capacity, since declaratory relief is unavailable, I am entitled to injunctive relief. This case should not be summarily dismissed.

VIII. SB 1070 precedent and equal justice precludes dismissal.

In the abstract, this case is much like Arizona's SB 1070 (United States v. Arizona). In SB 1070, the defendant was a branch of Arizona government, the Executive—the Governor by name—sued in her official capacity for making an unconstitutional law. In this instant matter, a different branch of government, the Judicial —the Justices of the Arizona Supreme Court by name—is likewise being sued in their official capacity for making unconstitutional law. Both the Arizona District Court and this court have enjoined state defendants in SB 1070 from enforcing certain elements of their unconstitutional law. Blind justice dictates the outcome here should be the same, independent of who the defendants are. Immunity cannot be a defense for making unconstitutional law. Summary dismissal would violate equal justice under law.

IX. To summarily dismiss would make this a classic case of "Capable of Repetition, yet evading review."

Given that mootness and dismissal, in the end, are essentially the same, there is an “established exception to mootness [dismissal] for disputes capable of repetition, yet evading review.” FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652, 2662 (2007). “The exception applies where ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.’”

Taking the exceptions in reverse order, I, the complaining party, have already had to fight this battle for our constitutional rights before. This is a live controversy. If this matter is not resolved by the federal court, it is likely I, and other Arizonans (like Michael Roth) will be subject to the same constitutional deprivation again and again. If this court summarily dismisses this suit (so that this action cannot be fully litigated), this deprivation will be capable of repetition, but evade review. Therefore, summary dismissal is not an option.

X. § 1983 action precludes summary dismissal.

"The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights—to protect the people from unconstitutional action under color of state law . . . " Mitchum v. Foster, 407 U.S. 225, 226 (1972). This is a § 1983 action. The federal court must interpose itself between these state actors and the people. Summary dismissal would preclude the court from doing its duty to protect the people from an unconstitutional action under color of state "law."

XI. First Amendment precludes summary dismissal.

In light of the above argument, if this court summarily dismisses this action for judicial immunity, then it has foreclosed the First Amendment right of the people to petition their government for a redress of grievances. For the federal court is the only court that can enjoin the state justices, the only court that can provide redress. Lack of redress is one of the complaints in the Declaration of Independence. For the sake of orderly society, summary judgment is not an option.

XII. Dismissal is not appropriate per International law.

While I have shown that judicial immunity does not apply in this unique matter, even if it did, perhaps this court should celebrate diversity by looking to Spain for guidance? (Given that some Justices of the SCOTUS have turned to International law for guidance.) This plaintiff has observed that almost every appellate ruling on immunity for judges rehearses English common-law, going back to Lord Coke and/or quoting Learned Hand as precedent for why judges should be immune from their decisions at bar. However, in Spain there is the ongoing case of Spanish judge Baltasar Garzón who is being prosecuted in Spanish Court for abuse of powers. (See Attachment B.)

In this instant matter, I am not calling for the suspension of the judge defendants as Spain is of judge Garzón. I'm merely asking for declaratory and injunctive relief from an unconstitutional "law." Yet, defendants are asking to be immune from their action, asking to be above the law.

Spain is applying our motto "Equal Justice under Law." Shouldn't the United States also?

Status report - Show Cause

Update as of January 21, 2012.

After finally forcing Judge Snow of the case (Judge Snow was a former Arizona Court of Appeals judge and knows all the defendants on a first name basis! - he should have recused himself from the start), the new judge, Judge Teilborg, dismissed the case, saying, in a footnote, that judges have absolute immunity.

That's not exactly true, and we'll explain shortly.

After filing an appeal, our blogger filled a Notice with the Ninth Circuit, asking for Emergency status, per FRAP 27-3, since he is suffering an actual Constitutional deprivation. That's usually good enough for the Ninth. It has granted emergency status for First Amendment issues. Why not for the Second?

Well. we've answered our own question. That pesky Second Amendment. (Not to mention the "political incorrectness" of the Ninth circuit having to come down against their brethren in the Arizona Supreme Court. But judges are not gods, you know.)

The Ninth would not grant Emergency status. Nor did the judges grant Urgent or Expedited status, per FRAP 3-3.

In fact, now the Ninth is saying it wants to summarily dismiss the suit, claiming that judges have absolute immunity! Our blogger has two more weeks to "show cause" as to why this suit shouldn't be dismissed.

Well, there are a number of reasons. The most important is that, even if judges have absolute immunity (and remember our little jingle "Absolute immunity corrupts absolutely"), they do not have immunity when acting outside their judicial authority And making law from the bench is outside their authority.

Remember what this case is about. This is a case of first impression. (And so, MUST be tried in the Ninth.) The Justices of the Arizona Supreme Court have made an internal procedural rule that has substantive legal effect on all Arizona citizens. They have made a rule that, they say, allows them to deprive you of your Second Amendment right, despite the fact that the Arizona Legislature never gave them that authority.

(You may wish to read Michael Roth's petition about this in the Arizona Supreme Court's public forum. He's the guy whose gun rights were revoked for calling Quartzsite Town Councilman Joe Winsow a "turd.")

Any strong 2nd Amendment attorneys want to jump in and champion this good cause? Feel free to call our blogger at his number on the caption of his pleadings or you can leave a comment here. Comment moderation on this blog is on, which means you can comment privately.

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.

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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.

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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.