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
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?
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.)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.
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.
