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.