Legal Advice on Ninth Circuit?

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

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

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

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

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

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

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

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

Thank you.

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

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

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

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

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

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

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

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

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

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

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

Which brings us to the present.

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

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

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

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

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

Judge Snow recuses himself!

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

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

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

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

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

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

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OVERVIEW

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

MEMORANDUM AND POINTS OF AUTHORITIES

Defendants see bias favorable to them

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

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

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

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

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

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

Committee Assignments

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

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

The Ninth on Judicial Bias

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

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

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

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

A. Clearly Established Supreme Court Precedent

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

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

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

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

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

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

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

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

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

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

Reply on Motion to Disqualify Tom Horne (Arizona AG)

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

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

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

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

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

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

OVERVIEW

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

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

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

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

NEW FACTS

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

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

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

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

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

REBUTTAL TO ARGUMENTS

As to Judicial Immunity & Entitled to Representation

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

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

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

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

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

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

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

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

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

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

As to Standing to raise Conflict of Interest

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

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

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

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

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

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

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

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

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

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

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

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

On the Attorney General as an Expert Witness

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

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

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

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

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

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

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

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

On Motion for Summary Judgment

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

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

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

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

Motion to disqualify Judge Murray Snow

Our blogger admits he's just a dumb pro se, so he's a little slow on the up-take. While preparing the previous motion (below) for Disqualification of the Attorney General, Tom Horne, our blogger tripped across a useful case that was adjudicated by Judge G. Murray Snow (the judge for this federal suit) when he (Judge Snow) was an Arizona Court of Appeals Judge.

Wait. What's wrong with this picture?

Judge Snow was an Arizona COA judge in 2008. He worked in the same building as the defendants in this federal suit! Presumably he knows them all by sight and on a first name basis. Presumably, they are all his friends. He should have recused from the onset of this case.

He didn't. Hence, this motion.

Pursuant to 28 U.S.C. § 455 (a) & (b)(1) and Canon 3(C)(1)(a) of the Code of Judicial Conduct, plaintiff makes a timely motion for Judge G. Murray Snow to disqualify himself from further participation in this action.

Because this motion alleges bias, and because there are rulings pending before Judge Snow which would be forever tainted if ruled on before this one, plaintiff requests the Court prioritize this instant motion to the top of the stack, expediting it before those pending.

MEMORANDUM AND POINTS OF AUTHORITIES

While researching his previous motion, pro se plaintiff just learned that Judge Snow was a judge in the Arizona Court of Appeals until 2008. (Per YES ON PROP 200 v. Napolitano, 215 Ariz. 458, 160 P.3d 1216 and Exhibit 1.) As Judge Snow is aware, he worked with—and personally knows—at least four of the five Justice defendants. I submit Exhibits 2, 3, 4 and 5 for the (appellate) record and for the public's edification.

In fact, when he was an Arizona judge, Judge Snow worked in the same building in Phoenix with three of the Justice defendants. It is reasonable to presume he knew them then—and still knows them now—by sight and on a first name basis. While the fourth Justice defendant was a member of the Arizona Court of Appeals in Tucson at the time, it is reasonable to presume that Judge Snow also worked with him on occasion and presumably knows him by sight and on a first name basis too.

Plaintiff has not taken the time to research, but presumes it is easy to discover in which committees Arizona COA Judge Snow worked along side any four of the five Justice defendants. (If not all five.) It is reasonable for the public to presume Judge Snow went on occasional junkets with them. It is reasonable for the public to presume Judge Snow may even see defendants at Christmas parties and/or other social events, whether he still does or not.

Now, both 28 U.S.C. § 455 and Canon 3 of the Code of Conduct require "A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which the judge has a personal bias or prejudice concerning a party . . . "

Clearly, working with and personally knowing four of the five Justice defendants constitutes a "personal bias." Clearly the public watching this case can reasonably question Judge Snow's impartiality. The defendants are Judge Snow’s close acquaintances, if not friends.

Chief Supreme Court Justice Roberts observed ". . . there are a number of factors that could give rise to a probability or appearance of bias: friendship with a party or lawyer, prior employment experience, . . ." etc.

While he said "We have never held that the Due Process Clause requires recusal for any of these reasons . . . " he acknowledges ". . . they could be viewed as presenting a probability of bias.” Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (2009). This case is already a case of first impression. It may set yet another precedent here if Judge Snow chooses to not recuse.

Regardless of whether Judge Snow feels he's biased or not, that is not the test. As Justice Scalia said, "what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal [i]s required whenever 'impartiality might reasonably be questioned.'" Liteky v. United States, 510 U.S. 540 (1994).

Consistent with this, regarding vacature, the Ninth Circuit has noted "the unfairness and expense which results from [delayed] disqualification can be avoided in the future only if each judge fully accepts the obligation to disqualify himself in any case in which his impartiality might reasonably be questioned." Preston v. United States, 923 F.2d 731, 734 (9th Cir. 1991) at 735-36. This is such a case.

NO DUTY TO SIT

Lest the Court wrongly invoke it, there is no "duty to sit," strong or otherwise. This doctrine was changed by Congress more than 35 years ago, in 1974. Citing the Federal Judicial Center's Recusal: Analysis of Case Law, (Exhibit 6, p2), "The legislative history made it clear that in revising the statute [§ 455], Congress wished to remove the 'duty to sit.'"

Chief Judge Kozinski demonstrated this fact when he recused himself sua sponte in his infamous pornography trial. (Exhibit 7.) Judge Snow should follow this lead.

NO HARM

This case is still in its infancy. There will be no harm or delay to defendants by assigning another judge at this time. In fact, since it is only plaintiff suffering a constitutional deprivation, only I will be harmed by delay. Consequently, defendants should not be opposed to this motion to disqualify Judge Snow . . . unless of course, they see Judge Snow as their friend. In which case they will vigorously oppose this motion.

Given that pro se plaintiff just now learned of Judge Snow's conflict of interest, this is the absolute earliest possible time plaintiff could have brought this good faith motion.

CONCLUSION

Given the above, in the interest of justice, judicial economy, and for the sake of public confidence in the judiciary, Judge Snow must recuse from this action. There are other federal judges in this District who do not have a history of past relationships with defendants who can hear this case without any appearance of impropriety.

Plaintiff's Motion to Disqualify State Attorney General

The State Attorney General, Tom Horne, is unlawfully defending the Justices of the Arizona Supreme Court. There are a LOT of problems with this, and our blogger filed a Motion to Disqualify the AG from appearing for the Justices. We've maintained this is a case of first impression, and the more we get into this, the more unique and (potentially) precedent setting it gets.

Our blogger has a great point in his hip pocket for the Reply Memorandum, if Mr. Horne fights this motion.

Pro se plaintiff moves this Court to immediately disqualify Tom Horne, the Arizona State Attorney General—and by extension, the Office of the State Attorney General—from appearing in this action as counsel for defendants in this case of first impression.

Given the uniqueness of this case, this motion may require an immediate ex parte determination by the Court. For to allow the Attorney General to respond where his disqualification is unequivocally required will only compound attorney misconduct.

Similarly, perhaps the Court could consider this an Emergency ex parte motion to enter partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, as there is no genuine dispute as to several material facts, and as these issues are a matter of law.

Plaintiff files an Emergency motion because, in addition to all the reasons given previously for expediting this action, the longer the Attorney General represents defendants, the more conflicted his is as an expert witness to plaintiff. (Due to attorney/client privilege with defendants.) And the longer the Attorney General improperly responds or replies to motions, the greater his ethical violations.

MEMORANDUM AND POINTS OF AUTHORITIES

INTRODUCTION

This Court (GMS) was once a judge in the Arizona Court of Appeals and once handled a case touching on the duties of the Arizona Attorney General. (Yes on Prop 200 v. Napolitano, 215 Ariz. 458, 160 P.3d 1216). So this Court is familiar with these matters.

In fact, were this matter to be tried in state, then, quoting former Arizona appellate court Judge Snow in Yes on Prop 8, "the Declaratory Judgments Act requires that the Attorney General be served with a copy of the complaint, together with a claim of unconstitutionality, and be allowed to respond on behalf of the State. A.R.S. § 12–1841" (Id. ¶ 33). That is, the Attorney General has an affirmative duty to make an unbiased determination if the defendants have violated the State Constitution. But since the Attorney General is defending the defendants, he has made this determination already and is therefore, inextricably prejudiced. This fact precludes the federal court from abstaining, since there is no way to undo this error. Plaintiff cannot now go to state, serve the Attorney General with this federal complaint as required by law and expect an unbiased response from the Attorney General. This matter must be decided in the federal court.

By choosing to represent the judicial branch in this unique action involving a prima facie constitutional violation of Distribution of Powers, the Arizona Attorney General has created several conflicts of interest for himself, may be acting unlawfully, and is acting unethically. Per 32 Am. Jur. 2d Federal Courts § 160, "A motion to disqualify counsel is the proper method for a party-litigant to bring an issue of conflict of interest or breach of an ethical duty to the court's attention."

CONFLICT OF INTEREST

A.R.S. § 41-192(A) defines the Attorney General as "chief legal officer of the state." Since this action charges several violations of the state constitution by defendants, plaintiff intends to call the chief legal officer of the state as an expert witness. There is no one else in the state who can testify as to whether the judicial branch ("department" in the Constitution) has violated Article III of the Arizona Constitution by "exercis[ing] the powers properly belonging to either of the others." (Count Five in plaintiff's ZAC, Doc. 5.) There is no one else who can testify whether an ex parte action (as in A.R.S. § 12-1809) violates the Arizona Constitution's Article II, Section 4 (plaintiff's Count Eight, Id.). Etc. For this reason alone, since plaintiff cannot call defendants' attorney as a needed and necessary witness, the Attorney General must be disqualified from representing defendants so he can be a material witness for plaintiff.

The Attorney General swore an oath to "support the Constitution of the United States and the Constitution and laws of the State of Arizona, that I will bear true faith and allegiance to the same and defend them against all enemies, foreign and domestic, and that I will faithfully and impartially discharge the duties of the office of Attorney General according to the best of my ability, so help me God (or so I do affirm)." (A.R.S. § 38-231.) Arizona court of appeals Judge Snow said in Yes on Prop 200, citing Article III, "Our system of government prohibits one branch of the government from exercising the powers granted to another branch of the government." (Id. ¶ 16) To the extent that the defendants have violated the Arizona Constitution's Distribution of Powers, they are "enemies, domestic." It is inconsistent that the Attorney General could impartially discharge the duties of his office by defending violators of the constitution.

Further, Article V, Section 1 of the Arizona Constitution defines the Attorney General as part of the Executive branch of Arizona government. As such, he represents the Governor in legal actions by default. To wit, the Attorney General represents the Governor in a case in this Court, United Food & Commercial Workers Local 99 v. Brewer, CV-11-921-PHX-GMS. So when it comes to the issue of Distribution of Powers, the Attorney General has a de facto duty to argue for the executive. But instead, he has conflicted himself here by arguing for the judicial, the very branch who is accused of usurping the executive's power by making and promulgating "law." Really, as the Governor's attorney, the Attorney General should be moving this court to include the governor as an Intervenor and should represent the governor's interest here.

Along similar lines, two weeks ago, plaintiff hand delivered a copy of this complaint to the Counsel for the Governor (Mr. Joe Sciarrotta), asking the Governor to be an Intervenor in this matter and/or seek an Opinion from the Attorney General about such. At the same time, plaintiff hand delivered copies of this complaint to the Counsel for the Arizona Senate (Mr. Greg Jernigan), the Counsel for the Arizona House of Representatives (Mr. Peter Gentala) and plaintiff's State Senator (Senator Lori Klein), asking them to be Intervenors and/or, pursuant to A.R.S. § 41-193(7), to request an Opinion from the Attorney General as to their rights to Intervene in this matter. (Plaintiff intends to make future requests of other Legislators as well.)
Plaintiff does not know what action the above have taken or whether such will be pending in the future. Plaintiff presumes he cannot make a "reasonable inquiry," since such requests between them and the Attorney General would be covered by attorney/client privilege. Nevertheless, the specter exists for a bona fide conflict of interest if any of the above have requested such an Opinion or action from the Attorney General regarding this Complaint.

Also, the Attorney General is an officer of the court. Thus he has two masters, the Governor and the Justice defendants. No man can serve two masters. He has already chosen the Justices.

A.R.S. § 41.192(A)(7) authorizes the Attorney General to "Organize the civil rights division within the department of law and administer such division pursuant to the powers and duties provided in chapter 9 of this title." Knowing the civil rights violations "alleged" in this action, the Attorney General has a duty to investigate. Plaintiff may file a formal civil right complaint in the future. Clearly, the Attorney General would be conflicted investigating that complaint while at the same time defending (or after having defended) this complaint.

The Attorney General is a defendant in the case of United Food, which touches on A.R.S. § 12-1809, a key statute in this instant action. (See United Food's FAC, Doc. 8 as well as other Doc's.) Therefore, the Attorney General has a bias and interest in this instant action and cannot represent defendants.

NO LAWFUL BASIS

A.R.S. § 41.193 empowers the Attorney General to "[r]epresent the state in any action in a federal court." It has previously been argued that the State is not a real party of interest in this action because the defendants are clearly acting outside their power, per Article III of the Arizona Constitution. (See plaintiff's Response to Defendants' Motion to Dismiss, Doc. 22.) This is not a "state interest." ARPOP Rule 6(E)(4)(e)(2) is not a statute. (ZAC, Doc.5 ¶ 50.) Therefore, by definition, defendants do not represent the state and the Attorney General has no authority to represent them as such.

Likewise, per A.R.S. § 41-621, the Attorney General may not represent defendants because they acted outside the "course and scope of [their] employment." See especially § 41-621(R).

VIOLATIONS OF ETHICS RULES

Ironically, defendant Justices are responsible for Ethics Rules that catch the Attorney General here. As one would expect, conflict of interests and acting absent law triggers violations of ethics.

Per 17A A.R.S. Sup. Ct. Rules 41 (b), "The duties and obligations of members shall be: To support the constitution and the laws of the United States and of this state." As stated before under Conflict of Interest, the Attorney General is in violation of his oath of office in several instances. Hence this ethic too.

Continuing on to Rule 41(d), the duties and obligations shall be: "To counsel or maintain no other action, proceeding or defense than those which appear to him legal and just, excepting the defense of a person charged with a public offense." This is not a criminal matter (i.e., "public offense" as defined by A.R.S. § 13-105(27).) For all the reasons stated previously, the Attorney General cannot consider this action legal or just. Therefore, he is in violation of this Ethic Rule.

17A A.R.S. Sup.Ct.Rules, Rule 42, Rules of Prof.Conduct, ER 1.7 (a): ". . . a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer." As stated previously, the Attorney General has a duty to the Governor here, and perhaps the Legislature (or Legislators) as well. Therefore, the Attorney General is in violation of E.R. 1.7(1) and/or (2).

E.R. 8.3(b) says "A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority." Here the Attorney General is aware that (or of allegations that) defendants have violated, as a minimum, Article III of the Arizona Constitution. He has a duty to report the defendants to the appropriate authority. Which, in this case of first impression, would be the Arizona House of Representatives for impeachment. He has not done this, nor can he do so as defendants' attorney. His duty to the state comes first, yet he has not disqualified himself from defending defendants.

CONCLUSION

A.R.S. § 41.192(F) provides "If the attorney general determines that he is disqualified from providing judicial or quasi-judicial legal representation or legal services on behalf of any state agency in relation to any matter, the attorney general shall give written notification to the state agency affected. If the agency has received written notification from the attorney general that the attorney general is disqualified from providing judicial or quasi-judicial legal representation or legal services in relation to any particular matter, the state agency is authorized to make expenditures and incur indebtedness to employ attorneys to provide the representation or services."

The Attorney General has not done this. It is up to this Court to force the matter.

THEREFORE, for any of these reasons, this Court must disqualify the Arizona Attorney General—and, by extension, the Office of the Attorney General—from appearing in this action as counsel for defendants.

Dating in the federal court - (post)

This is about post-dating documents.

Our blogger is in his mid 50's. He's not a child anymore who lives in an innocent world. So he shouldn't be surprised to find corruption everywhere. Even in the federal court. Sometimes at the lowest levels.

But because he's a Christian, our blogger doesn't think like the rest of the world and is still shocked at the evil out there.

He was at the clerk's office of the Arizona District Court in Phoenix recently, filing some papers for Michael's Law and chatting with the clerk. Before the clerk hand-stamped the papers with that day's date, she took a quick look at the stamp to make sure the correct date was set. This was after noon. (The implication being that others already had papers stamped that day. In fact, someone was there just before our blogger. One presumes the date would be correct already.)

Our blogger remarked that it must be quite a trick to read numbers backward off the rubber stamp.

The clerk laughed and said she had learned very quickly how to read the stamp backward, especially because she often had to set back in time.

What?

The full impact of this statement didn't quite hit our blogger and besides, what could he do about it? He made a joke about it and said, "Oh . . . we're not post dating documents, are we?"

To which the clerk laughed sheepishly and said, "Shhh . . . don't tell anyone." (Or words to that effect.)

We don't think she's taking money to do post-date documents. (But our blogger didn't ask what it takes.) That would leave only a judge's informal "order" to post date something.

But however it happens, apparently it happens.

But Justice Hurwitz is being sued!

President Obama has nominated Arizona Justice Hurwitz for the Ninth Circuit.

But he's being sued in federal court!

"Justice Hurwitz has proven himself to be not only a first-rate legal mind but a faithful public servant," Obama said in announcing the nomination. "It is with full confidence in his ability, integrity and independence that I nominate him to the bench of the United States Court of Appeals."

Hmmm . . . It's impossible to know which of the five Arizona Justices refuse to comply with Arizona Law in the Michael's Law lawsuit. Presumably a majority of them refuse to choose the right. But surely this can't look good for Justice Hurwitz. Can't he convince his colleagues what is right?

Hopefully some Republicans will trip across this blog when it comes time for the Senate to confirm Justice Hurwitz. Hopefully they will ask him which way he voted in Michael's Law.

Plaintiff's Response to Defendants' Motion to Dismiss

Just throwing something up for now. This is about two-thirds of the Response. Will try to make it pretty later. Footnotes are not printed here. They add a lot of color.

Defendants have moved this Court to dismiss plaintiff's Complaint. Their motion is not difficult to adjudicate, as there can be only one logical outcome. Deny.

First and foremost—and since defendants moved for abstention in their motion, per the arguments previously offered in Plaintiff's Emergency Motion for Reconsideration (Doc. 6)—dismissal is simply not in the universe of logical outcomes in this unique action. This action cannot be adjudicated by its own defendants in State court. (See Fatal Flaw I and II in Doc. 6.) Besides, in general, there is strong precedent for the federal court to abstain from abstention.

Consistent with this, as proffered in plaintiff's Doc.6, and now stated definitively after further research, this is a case of first impression—distinguished from the few other federal actions against State judges because, among other things, these defendants, members of the judicial branch, have unconstitutionally enacted an unconstitutional "statute" and are the enforcers of that "statute." That is, they have acted in "absence of all jurisdiction." Mireles v Waco, 502 U.S. 9, 112 S.Ct 236, 116 L.Ed.2d 9 (1991). Moreover, they have been noticed as to the unconstitutionality of their actions long before suit was brought—a critical additional element which further mandates adjudication by this Court. Therefore, this case must be fully adjudicated in federal court.

Because this is a case of first impression, opposing counsel's negative cites for dismissal via immunity and/or abstention are, by definition, off point. For negative precedents cannot apply in unique new instances. On their face they are moot in light of the unique distinguishing circumstances here. Nevertheless, opposing counsel throws several abstention doctrines against the wall to see what will stick. As above, abstention in this unique action is not logical. Defending against abstention is, a priori, moot. But for the sake of completeness, I will deal with them at the end.

Happily, while this is a case of first impression, it does parallel the ongoing case in this same Court of United Food & Commercial Workers Local 99 v. Brewer, CV-11-921-PHX-GMS (cited in Doc. 6), where the defendants also are State officials. This Court has already upheld claims in United that parallel plaintiff's claims here, even granting plaintiffs in United a Preliminary Injunction to preclude alleged constitutional harm.

As it pertains to this Response, in United this Court denied dismissing the State officials who caused traceable injury to plaintiffs. How much more here where there's been actual injury? Not only that, but injury not merely "fairly traceable" to defendants, but directly attributable to defendants. Since the State has trod out the same Eleventh Amendment immunity argument in this instant matter it used in United, I will simply quote this Court's Order from United to refute here.

After a brief editorial comment and briefly restating the facts for the record, I will "accentuate the positive" before "eliminating the negative." I will focus on a recent federal case similarly considering dismissal of an § 1983 action against State judges because it addresses and dispenses with many of the same cites opposing counsel uses in her motion.

EDITORIAL COMMENT

In general, opposing counsel obfuscates and mischaracterizes the facts in this matter. For example, consider her Summary of Complaint. As amply stated in my Zeroth Amended Complaint ("ZAC," Doc. 5), this matter is not about Criminal Orders of Protection, but rather Civil Injunctions Against Harassment. Nor am I asking this Court to have the "Arizona Rules of Civil Procedure" declared unconstitutional, but rather one Rule of the "Arizona Rules of Protective Order Procedure." By over-generalizing, she perpetuates a fraud and makes this case more than it is as well, while, at the same time, less that it less. Similarly, in the body of her motion, she misstates the facts of this matter to set up invalid strawman arguments for her to knock down. She also glosses over critical quotes in her cites which bear directly on this action, as we will show.

THE FACTS

Briefly then, I restate the salient facts:

Plaintiff has suffered the deprivation of numerous constitutional rights as a result of an ex parte civil action at the hands of defendant Jones, under the guise of A.R.S. § 12-1809. (ZAC, ¶19). An ex parte deprivation of any constitutional right constitutes a prima facie violation of Due Process.

Defendant Jones did not declare the ex parte action unconstitutional and dismiss it, as is within his authority as a judge. Defendant Jones merely "rubber stamped" one citizen's ex parte claims against another citizen. Contrast this with Arizona Judge John Keegan (a student pilot of plaintiff's, now retired) who declared state law authorizing photo-enforcement tickets unconstitutional and, sua sponte, dismissed them from his court. (Exhibit 1)

Judge Jones issued the Injunction and enforces the Injunction by force of law, namely through A.R.S. § 13-2810. Interfering with judicial proceedings; "A. A person commits interfering with judicial proceedings if such person knowingly: 2. Disobeys or resists the lawful order, process or other mandate of a court;" Among the constitutional deprivations plaintiff is suffering is the deprivation of his Second Amendment right. (ZAC, ¶36) There is no statutory authority in A.R.S. § 12-1809 authorizing defendant Jones to deprive plaintiff of his Second Amendment right. (Id., ¶39) Thus defendant Jones exceeded his statutory authority. Given that, to date, defendant Jones has not vacated his Injunction as did JP Judge Karen Slaughter in the similarly Michael Roth (Quartzsite) fiasco (Exhibit 2), it is a "reasonable inference" that defendant Jones would consider possession of weapons by plaintiff a violation of his order, thus perpetuating and enforcing his order.

Contrary to opposing counsel's implication, (8:21) plaintiff has not engaged the State in challenging these deprivations. To do so might invoke Rooker-Feldman. There are no pending state court proceedings in which this Court can interfere.

It is likely defendant Jones was relying on the Arizona Supreme Court's "Arizona Rules of Protective Order Procedure" (ARPOP) instead of the Arizona Revised Statutes. (Id., ¶48) The latter is law. The former is not. Defendant Jones took an oath to defend the latter, not the former.

The ARPOP is compiled by the Justice defendants of the Arizona Supreme Court. It is merely a compendium of state laws. It cannot supercede state law. While the Court has statutory authority (I presume, no cite) to make its own rules for the administration of the courts, publishing the ARPOP—or, at least, publishing an unlawful Rule—is not administrative. Therefore, such is not a legislative function.
In the ARPOP, the defendant Justices have published a rule, namely Rule 6(E)(4)(e)(2) that is without legal citation because it is outside legal authority. (Id., ¶50) That is, defendants have created, promulgate and continue to promulgate a Rule which they have, through their own officers, given the force of law. This is a violation of Article III of the Arizona Constitution, Distribution of Powers.

Almost a year before this action commenced, defendant justices were noticed, by way of the Supreme Court's public forum, that they were promulgating a fraud. (Id., ¶52) The justices even acknowledged plaintiff's petition had some merit. (Id., ¶54) Yet, to this day, even after this action commenced, defendants have not acted to repeal their unlawful Rule.

Plaintiff had his Second Amendment right revoked once before via a Civil Injunction. (Id., ¶20) As a proximate result, plaintiff's name was put on the FBI's NCIC database for ""positive Brady Record Indicator." (See Doc. 6, Ex. C) There is nothing in Arizona statute § 12-1809 giving the defendants the statutory authority to put a citizen's name in the FBI's Federal database.

A recent conservation with a veteran certified Quartzsite (Arizona) police officer informs me NCIC information is coughed up by Dispatch whenever an ACJIS inquiry is made on a citizen. Since my name was put on the NCIC database before by JP Judge Hamm as Standard Operating Procedure in a previous Civil Injunction, it is reasonable to believe I am suffering the same NCIC injury now.

Being the highest court in the State, even if defendant justices could sit on and judge their own case, given that, to this day, they refuse to repeal their unconstitutional rule, it is reasonable to assume they would continue their present course. Furthermore, Arizona law governing appeals of Civil Injunctions (Rule 9(B)(1) 17B A.R.S.) precludes plaintiff from appealing past Superior Court. Thus, the only remedy—and the proper remedy—available to plaintiff is the federal court.

CASE IN POINT

Before refuting defendants' motion line by line, it seems more instructive to cite a recent District Court case (from 2003, after the 1996 Federal Courts Improvement Act cited by defendants) which deals with many of opposing counsel's objections. The case is LECLERC, et al. v. WEBB, et al. (270 F.Supp.2d 779) The defendant Justices of the Louisiana Supreme Court were sued in their official capacities (as here) as in what appears to be a § 1983 action. The complaint sought declaratory and injunctive relief (as here) but also monetary damages. (Not here.) From the Westlaw headnote, "The District Court, Zainey, J., held that: (1) claims were ripe for adjudication; (2) aliens had standing; (3) Ex parte Young exception applied, such that action was not barred by Eleventh Amendment; (4) Louisiana Supreme Court Justices were not entitled to immunity from suit; (5) aliens were not denied due process or equal protection; (6) state Supreme Court rule was not preempted by federal law; . . ."
While not an exact parallel (since this instant matter is a case of first impression), I cite this ruling since Items 1,2,3,4, and 6 are on point in this instant matter and were affirmed.

As this Court can see, defendants in Leclerc rounded up the ususal suspects, just as defendants do here. By name they are: lack of jurisdiction, failure to present a "case" or "controversy," Rooker-Feldman, Eleventh Amendment, Judicial & Legislative Immunity, and Abstention.

Page limits prevent an in-depth analysis. Nor do I think it necessary. For, after reading this Court's Order denying dismissal of State Agents in United (Doc. 100), I am persuaded that this Court knows how to Choose The Right. So I merely highlight important points in Leclerc, following along with Judge Zainey's sequence.
As to Case or Controversy, unlike plaintiff Leclerc, I have suffered actual injury. As to Rooker-Feldman, like plaintiff Affleck, I have not engaged the State in any way. I am not a party to a state suit. Thus, there can be no collateral attack on a state court judgment.

As with Affleck, I assert federal law does not require exhaustion of state remedies prior to brining a claim alleging violations of federal law. (And remember, my Second Amendment deprivation is not an allegation, but fact per by defendant Jones' Order. ZAC, Ex. 1) Judge Zainey agrees, saying in FN12, "Indeed, it is well established that administrative exhaustion does not apply to civil rights claims . . . " (citations omitted.) Also as with Affleck, given that the Arizona Supreme Court refused to repeal its unlawful Rule when I petitioned, pursuing in-state action would be futile anyway.

As to the Eleventh Amendment, I'll simply quote this instant Court (GMS) from Doc. 100 in United. "State officials, however, can be sued in their official capacity for
injunctive relief to prevent them from implementing state laws that violate the Constitution. Under the doctrine of Ex Parte Young, 'relief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect on the state treasury.'"

In my instant case, a state "law" which violates the Constitution had already been implemented and continues to be promulgated. It has affected me and others before (Michael Roth of Quartzsite) and will continue to do so unless challenged. So how much more the harm here? Furthermore, as I will address in the next section, the state is not a real party of interest since no money or revenue is involved, nor any lawful state action. "The state is the real party in interest when the judgment would tap the state's treasury or restrain or compel government action." There is no official, sanctioned government action here to compel. The defendants made up, promulgate and enforce a "law," acts they are prohibited from doing.

As to Judicial Immunity, Judge Zainey presents a lot of history, starting with opposing counsel's own Supreme Court of Virginia v. Consumers Union, taking us through counsel's Forrester V. White, ending with counsel's Federal Courts Improvement Act of 1996. After considering the history, Judge Zainey sums up, saying, "The Supreme Court's jurisprudence had long been unequivocal in that the Court did not consider every act taken by a judicial officer to be a “judicial act” subject to judicial immunity. Therefore, Congress's decision to preclude injunctive relief when the judge acts specifically in his “judicial capacity” can only mean that injunctive relief remains available when the judicial officer acts in other capacities. . . . " Considering the history, he then defines judicial capacity as the SCOTUS cited in Forrester: "the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform.”

However, in this instant case, by making up law and promulgating such in a Handbook of theirs, the Justices are acting outside law. Defendants are not assigned by law to perform the unconstitutional "function" of promulgating a Rule in their Handbook that the Legislature and Governor did not authorize.
Interestingly, Judge Zainey shrewdly observes (in FN17) that "Interestingly, Defendants' own invocation of legislative immunity [which defendants in this instant case also invoke - see Doc. 18, 6:14] belies any assertion that they believe that the FCIA erased the recognized distinctions between the various capacities in which judges act."

Moving on to Legislative Immunity, in my instant case, because the Justices lack statutory authority to make law, and since Rule 6(E)(4)(e)(2) is not based on law, the Justices cannot claim they are simply promulgating a rule from the Legislature. Therefore, by definition, they cannot claim Legislative Immunity.

Last is Abstention. As far as specific abstention doctrines go, there's nothing on point in Leclerc. Nevertheless, an important point: Judge Zainey noted "[Justice] Defendants' abstention argument is less persuasive given that many of Plaintiffs' federal arguments have already been presented to and rejected by the Louisiana Supreme Court." Similarly, plaintiff here has been a good citizen, has tried to repeal the unconstitutional Rule from within the system (Doc. 5, Ex. 8) and yet has been rejected by the Arizona Supreme Court. (ZAC, ¶53). There is no reason this Court should believe that, even if it could abstain and let the Justices judge themselves, that they would do any different. They're being sued in federal court but still haven't repealed their Rule.

Status as of November 17

Lot's been happening.

Defendants filed your classic Motion for Dismissal, rounding up the usual suspects of bogus arguments.

Plaintiff fired back a Response, quoting Judge Snow back to himself at several points from a parallel case from his own court!

Plaintiff filed an Emergency Motion to Disqualify the Arizona State Attorney General from appearing for defendants. (Conflict of Interest, Acting outside the law and Ethics Violations.) It appears the R Tom Horne is really no different than the D Terry Goddard. No wonder people call them "Repubocrats."

Again quoted Judge Snow back to himself from when he was an Arizona Court of Appeals Judge. (Hmmm . . . does anyone see a problem with this picture?)

A few more doozie motions are planned.

Will try to catch up and post all the above when we can catch a breath.

Status as of November 1

Our blogger filed an Emergency Interlocutory Appeal with the Ninth Circuit.

Shortly after that, an Assistant Attorney for Tom Horne's Office, the Arizona State AG, filed a Motion to Dismiss. (Anyone see anything wrong with this picture? Hint: See Article III of the Arizona Constitution, titled "Distribution of Powers.")

Some doozie motions are planned. This appears to be a case of first impression and should set a number of interesting precedents.

More to come.

Soliciting Intervenors for Michael's Law

For Immediate Release

Soliciting Intervenors in the federal case, Palmer v. Jones et al. 11-CV-1896, in the District Court of Arizona

++++++++++++++++++

In honor of Michael Roth, of Quartzsite Arizona, who had his 2nd Amendment right revoked simply for calling someone a "turd," Mike Palmer is suing the Justices of the Arizona Supreme Court, in their official capacity, to get his 2nd Amendment right back.

As with Roth, Palmer recently had his 2nd Amendment right revoked via a Civil Injunction Against Harassment - for blogging! In addition, Palmer's name has been put on the FBI's National Crime Information Center database, essentially reducing him to a criminal felon, all via a purely civil procedure! And, as with Roth, an ex parte (one sided) action at that.

Worse, there is no law in Arizona allowing courts to do this. The Arizona Supreme Court made up its own "law!" (So this is also a Constitutional issue in Arizona - the Court, by making law, is violating Arizona's Article III, Distribution of Powers. Your Legislator should be involved in this suit.)

Palmer fought this once in court. And won. After finding the cause of the confusion, he petitioned the Arizona Supreme Court to repeal its unlawful rule. The Court refused, but admitted Palmer's arguments had some merit and would be forwarded to a subcommittee for consideration.

Nothing happened, so now a Federal Civil rights lawsuit to force the Arizona Supreme Court to obey the law. The case is still in its infancy. A complaint has been filed. It is 11-CV-1896, Palmer v. Jones, et al. in the District Court of Arizona.

Palmer is soliciting Intervenors for his suit. Others who have, or are, the victims of the same constitutional deprivation; gun right groups who wish to protect their members in the future; Congressmen and Senators of Arizona.

Palmer can be reached at 602-513-3738.

Judge Snow: "What I have written, I have written."

Our blogger got a terse, less than one page order from Judge Snow, rejecting the Motion for Reconsideration. Judge Snow didn't even bother to deal with the alternative Motion to Clarify. In his short Order affirming his previous ruling, his reasoning, in essence was, "Because I said so." (We empathize with Dr. Orly Taitz and her efforts to get justice in court.)

Why is that that, just last month, Judge Snow granted a Preliminary Injunction for Arizona residents who sued a branch of government (the executive) for an alleged constitution deprivation (First Amendment) but won't grant our blogger the same? Our blogger is also suing a branch of government (the judicial) for an actual constitutional deprivation (Second Amendment). One would think if our dumb pro se's motion was so refutable it would have been an easy matter for Judge Snow to refute at least a part of it.

So what to make of Judge Snow's short order? While you cannot make an argument from silence, our blogger thinks Judge Snow's silence will make it easier to refute him in an Emergency Interlocutory Appeal to the Ninth's Motion Panel, which is planned next. (Notice of Appeal filed today.) It turns out that Judge Snow overlooked a very on-point ruling from the Ninth Circuit, recently cited when the Ninth Circuit shot down parts of Arizona's controversial SB1070.

To quote the Ninth,

The Ninth Circuit Court of Appeals has stated "'that an alleged constitutional infringement will often alone constitute irreparable harm.'" Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (quoting Assoc. Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equal., 950 F.2d 1401, 1412 (9th Cir. 1991)). Indeed, if an individual or entity faces the imminent threat of enforcement of a preempted state law and the resulting injury may not be remedied by monetary damages, the individual or entity is likely to suffer irreparable harm. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992) (stating that a federal court may properly enjoin “state officers ‘who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution’” (quoting Ex parte Young, 209 U.S. 123, 156 (1908)); New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 366-67 (1989) (suggesting that irreparable injury is an inherent result of the enforcement of a state law that is preempted on its face); Edmondson, 594 F.3d at 771 (concluding that plaintiff is likely to suffer irreparable injury if enforcement of state law that is likely preempted by IRCA and IIRIRA is not enjoined); Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 858, 878 (N.D. Tex. 2008) (concluding that there is a likelihood of irreparable injury if enforcement of a city ordinance that is preempted by the INA is not enjoined).

This paragraph from the Ninth will be the final trust of our blogger's interlocutory appeal. He has not suffered an alleged constitutional infringement, but quoting the Second Amendment, our blogger's right to keep and bear arms has in fact been infringed. And that absent state law!

If any attorneys have jumped through the hoops of actually filing an Emergency Appeal to the Ninth's Motion Panel, our blogger would appreciate some guidance. (It's amazing that Jared Loughner, the Tucson Murderer, has already had three or four.) Our blogger can write the arguments and certifications. But it's the little things like having the wrong color paper can trip one up. So any guidance from someone who's been there, done that would be appreciated. Please leave your contact info via a comment. (All comments are moderated, so your info will not be published.)

We'll plan to post the Appeal as soon as it's filed.

What is Judge Snow thinking?

On Friday, our blogger filed an Emergency Motion to Reconsider Judge Snow's refusal to grant a TRO.

There are quite a few logical inconsistencies in Judge Snow's Order. The fatal one is that, if one were to follow Judge Snow's order (that he will abstain from this matter, letting the state court rule first), then not even the Justices of the Arizona Supreme Court are legally allowed to hear this case! (See Fatal Flaw.)

Another inconsistency: just last month, Judge Snow granted a TRO to Arizona residents who sued the executive branch for alleged constitutional deprivations. Whereas, in this instant matter, Judge Snow denied a TRO to a resident suing the judicial branch for actual constitutional deprivation! (See "As to Clarification.") So, what's the difference?

This seems prejudicial. Our blogger has asked Judge Snow to clarify the differences. (If any.) In fact, our blogger points out a few other basic errors by Judge Snow. These hint at prejudice. (See Endnotes)

It seems like this may be a case of first impression, headed for an Emergency Action in the Ninth Circuit if Judge Snow doesn't reverse himself. (If any attorneys reading this have jumped through the procedural hoops of getting an Emergency TRO in the Ninth (as with SB 1070 or Jared Lee Loughner), we could sure use some guidance. We can make the legal arguments. Just need to know how to file the paperwork properly.)

Also, it occurs to us that our blogger and Michael Roth can't be the only ones who have suffered a constitutional deprivation caused by the Arizona Supreme Court's basis Rule. There must be thousands.

If you have suffered an unlawful gun deprivation as a result of an Injunction Against Harassment and are interested in participating in this lawsuit, please leave your contact information in a comment. Perhaps we can move this to "Class Action" status and make it more important than just one man's battle. (You can remain anonymous if you comment.) Only attorneys can get any money for participating, but you'll be helping your fellow man.

Below are excerpts from the Motion for Reconsideration. Or you can download the full PDF version of the Motion, complete with footnotes and exhibits, both which add a lot of color to this picture.

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11-CV-1896-PHX-GMS

PLAINTIFF'S EMERGENCY MOTION
FOR RECONSIDERATION
OR ALTERNATIVELY
MOTION FOR CLARIFICATION
OF JUDGE SNOW'S
DENIAL OF TRO

Pursuant to LRCiv 7.2(g), citing manifest error & new evidence; and in the interest of justice & judicial economy, Plaintiff moves Judge Snow to reconsider and reverse his Order denying Plaintiff's Temporary Restraining Order (Doc. 4). Or, alternatively, to state for the record where "Plaintiff has not met the burden of Fed.R.Civ.P 65(b)." (Id. p2, line 7) This Motion is supported by the following Memorandum of Points and Authorities as well as Plaintiff's recently filed Zeroth Amended Complaint ("ZAC," Doc. 5)

The need for emergency consideration continues by extension since TRO's are emergency matters and because Plaintiff's life is in danger every day the status quo is not restored, every day he is deprived of his right to defend himself, his loved ones, or his fellow man. There is real, literal potential irreparable harm here. In fact, this past Sunday, there were two reported murders in Phoenix, one within a mile of Plaintiff.

OVERVIEW

It occurs to pro se Plaintiff that suing the Justices of a state Supreme Court for constitutional violations may be a case of first impression and may set a precedent showing the Abstention Doctrine can never be an option in such a matter and a federal court must always take jurisdiction in such a matter.

The Court has denied granting Plaintiff a TRO in this matter, ultimately choosing to abstain from exercising jurisdiction, citing Railroad Comm 'n of Texas v. Pullman Co. Ignoring for now that Railroad is yellow-flagged on Westlaw and is not on point for this instant matter [EN1], abstention is not an option. Plaintiff will show that the Court's decision to abstain in this unique matter, with these unique defendants, violates an axiom of jurisprudence and is, therefore, illogical. Not only in theory, but in practice. Therefore, the Court's ruling cannot be correct and must be reconsidered.

Once Plaintiff has shown that error, Plaintiff will politely point out other manifest errors in the Court's Order, to aid the Court's reconsideration to grant Plaintiff his requested TRO.

Because the Standard of Review to issue a Preliminary Injunction is essentially the same as for a Temporary Injunction, it seems best to make a motion for reconsideration now, in the interest of judicial economy, since, if unchallenged, the Court will likely make the same ruling in the upcoming hearing for a Preliminary Injunction.

While Plaintiff can see that he may have to appeal to the Ninth on an Emergency basis for remedy, this need not be the case. For ironically, this same Court (GMS), just last month, granted a TRO for Arizona residents who also sued a branch of the state government, citing similar constitutional deprivations. But in that matter, this Court did not abstain. Nor did this Court tell those Plaintiffs to take their constitutional issues to the state judicial branch first. This Court took jurisdiction and applied the standard of review to grant a TRO. As both cases are the same in the abstract, both suing government agents for harmful unconstitutional deprivations, this Plaintiff is at a loss to understand why he did not get the same outcome as the others. If the Court will not reconsider and grant Plaintiff a TRO, then I ask the Court to clarify the distinctions between the two cases.

MEMORANDUM OF POINTS AND AUTHORITIES

Fatal Flaw, Part I

The Court's decision "to abstain from exercising its jurisdiction until the state courts have had the opportunity to [rule]" is fatally flawed and cannot stand because it violates an ancient axiom of jurisprudence.

It is axiomatic that “[a] fair trial in a fair tribunal is a basic requirement of due process.” Consistent with this, it is also axiomatic, and recently reaffirmed in the SCOTUS, that "no man is allowed to be a judge in his own cause." (Id.)

But this Court is telling Plaintiff to take this matter to the defendants he is suing, and let the defendants—who are judges—be judges in their own cause! Literally! This is not right!

Let's apply this to real life to see how it would work in a recent high profile case in the District of Arizona. Consider the ACLU's challenge to Arizona's controversial SB 1070. Had the ACLU moved this Court for a Preliminary Injunction to stop SB 1070 (as, in fact, it did in Judge Bolton's court), this Court would tell the ACLU to take up its fight against SB1070 first with the Executive, exhausting its remedies there. (Perhaps by proving to the Executive that parts of SB1070 are unconstitutional? But of course, the Executive obviously believed SB 1070 was constitutional or else it wouldn't have approved it.) Or this Court would tell the ACLU to vote the Executive out of office and change the law that way. Or this Court would tell the ACLU to take its constitutional challenge of SB 1070 to the Arizona Supreme Court first. And only if those remedies fail, then, and only then, will the federal court intervene.

But, quite properly, the judge in this District did not abstain from jurisdiction. Nor did the judge in this District tell the ACLU to exhaust its remedies first by challenging SB 1070 in the Arizona Supreme Court before going federal. (Which, in contrast, is what this Court is telling me to do.) No, there were alleged federal constitutional issues which were rightly tried in this District Court and upheld in the Ninth Circuit. (I parenthetically add that the federal court blocked parts of SB 1070 before it went into effect, before anyone suffered actual harm. I will touch on this later in discussing the Second Amendment and irreparable harm.)

One hopes even the defendant judges will see the illogic in this Court's abstention ruling. For, by law (Rule 2.11 of the Arizona Code of Judicial Conduct), Defendants must recuse themselves from sitting on this matter because they have a personal bias, since they are the defendants I am suing. And so both in theory and practice, there can be no remedy at the state level when a state's highest court judges are sued for constitutional violations. They cannot judge their own cause and consistent with this, they are prevented from hearing their own case. As there is no higher court in the state, suing a state's highest judges may make this case unique and a case of first impression, making federal intervention mandatory.

Fatal Flaw, Part II

Further, this Court is saying that the defendant Justices should determine, for example, whether they are in violation of Count Five for violating Article III of the Arizona Constitution (Distribution of Powers) for making and enforcing a "law." I respectfully submit that it makes no sense to ask a State court if it is violating the State's constitution.

The Judicial Branch is the only branch in Arizona government that has the authority to rule as to what is constitutional or not. And the State Supreme Court is the highest court in the state. But this federal court is ultimately telling Plaintiff that I must first go to the Justices of the Arizona Supreme Court to see if they will rule as unconstitutional a Rule they have already issued as constitutional. Again, to require the defendant Justices to rule on whether they are obeying the state constitution is to allow them to be judges in their own cause.

Besides, I've already challenged the Supreme Court on the unconstitutionality of its unlawful rule in a public forum. Why would the result be any different in another pubic forum, especially when they're being sued?

No, abstention is not viable here. There is no one in the state who can review the actions of the state's highest court. Therefore, the federal court must take jurisdiction whenever a state court is accused of making an unconstitutional law.

Court narrowly focused

If I may politely say, the Court did not articulate all the facts of this case in its Analysis and has completely overlooked the 800 pound gorilla in the room. Namely, if I read it right, the Court is narrowly focusing on only First Amendment issues while totally ignoring the larger, 800 pound seminal issue of the Second Amendment deprivation via the Arizona Supreme Court's ARPOP Rule 6(E)(4)(e)(2).

Pro se Plaintiff is learning to think like a lawyer and can kinda-sorta see the Court's narrowly tailored point, that, ignoring the fact that defendants unlawfully deprived me of my constitutional Second Amendment right—that if this were solely a First Amendment issue—this matter might not yet be ripe for federal intervention because I might be able to prevail challenging the Injunction in a state hearing, citing the on-point cites from the SCOTUS and the Ninth (ZAC, para 26 & 27). If so, we might not be here today.

But this matter is ripe because defendants did, absent law, deprive me of my Second Amendment right. This is incontrovertible and this is what makes this a federal issue. Besides, the Arizona Supreme Court's unconstitutional rule affects all Arizonans, making this ripe with public interest.

Focusing on the Second Amendment

From the Court's claim that I have not met the burden of Rule 65(b) (Doc. 4, p2, lines 6-7), the implication seems to be that an unconstitutional Second Amendment deprivation does not constitute irreparable harm. I will show later, based on a recent ruling from this same Court granting a TRO for a similar unconstitutional deprivation, that a Second Amendment must constitute irreparable harm, just as a Fourth or Fifth Amendment deprivation was so deemed to negate portions of Arizona's SB 1070.

Perhaps the time is ripe for a court to rule on this. It was only recently that the SCOTUS reversed the Liberal's belief that the Second Amendment was not a fundamental, individual right but only attached to Militias. (McDonald v. Chicago.) So, for the record, Plaintiff needs clarification from this Court in the form of a yes or no ruling: Does an unconstitutional deprivation of one's Second Amendment right constitute irreparable harm, especially when Plaintiff has changed his "course of conduct" as a proximate result of being deprived of his right to keep and bear arms? This is seminal to consideration of this instant TRO. (The court may wish to extend "harm" to a fellow citizen who may be harmed during an armed car-jacking if another good citizen cannot help because he has been deprived of his constitutional right to bear arms.)

More ripe fruit

Back to ripeness and the need for federal intervention: Counts Five, Six, Eight. Ten, and Eleven, which are a proximate result of the Arizona Supreme Court's unlawful Rule 6(E)(4)(3)(2) can only be resolved in federal court. There is no higher court in the state that can hold the state Supreme Court accountable to la or adjudicate these matters.

Public Interest

Further, the motivation behind this federal suit is not simply to remedy my constitutional rights to keep and bear arms in an Injunction, but, in the public interest, to ensure no Arizonan suffers harm in the future. There is a huge element of public interest here. This Court needs to intervene to order the Justices of the Arizona Supreme Court to repeal its baseless ARPOP Rule 6(E)(4)(3)(2).

In fact, while writing this motion, Phoenix radio station KFYI talk show host Mike Broomhead covered this story. Nationally, this case has been reported on the Internet by World Net Daily. Arizona's Mr. Broomhead, having read the amended complaint for himself, expressed his concern that, as a controversial radio talk show host, he could find himself similarly facing an unconstitutional deprivation of his gun rights simply because a listener got a judge to sign off on an ex parte petition.

As to Clarification

Given all the above, this Court's Order cannot stand. Naturally, Plaintiff desires that this Court will reconsider and reverse itself and grant Plaintiff his TRO. But if it does not, Plaintiff asks this Court to rehearse the Standard of Review for a TRO as it did when it granted a TRO in a similar matter last month. And if it does not grant the TRO, to clarify the reason(s) why not.
I refer the Court to UNITED FOOD AND COMMERCIAL WORKER LOCAL 99 et al., v (Governor) Jan BREWER, CV-11-921-GMS. (Exhibit A)

In United, as here, Arizona residents sued a branch of the state government in its official capacity. Plaintiffs there sued the executive, whereas I am suing the judicial. This Court accept jurisdiction in United. But not here.

At issue there was a state law which was to go into effect, that Plaintiffs alleged was unconstitutional. Here, Plaintiff is challenging a "state 'law,'" already in effect, promulgated and enforced by the judicial branch. (Which, on its face, according to both common sense and Article III of the Arizona Constitution (Distribution of Power) is patently unconstitutional. Pro se Plaintiff surmises it was never foreseen that a Supreme Court would make and enforce a law, and this may be a first.) This Court accepted jurisdiction in United. But not here.

In United, as here, Plaintiffs alleged a violation of a right enumerated in the Bill of Rights. Even though Plaintiffs in United had not suffered harm (the law not having been put into effect) this Court ruled that a "court may hear a constitutional challenge to a law that has not yet been enforced when 'the plaintiff intends to engage in "a course of conduct arguably affected with a constitutional interest" and that there is a credible threat that the challenged provision will be invoked against the plaintiff.'"

Here, Plaintiff has, in fact, engaged in a course of conduct that has, in fact, been affected with constitutional interests (ZAC para 6). Here, the threat has actually been invoked against the Plaintiff. The Court accepted jurisdiction in United. But not here.

In United, the Court noted that “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury" and that "the harms they would suffer should SB 1365 go into effect are irreparable per se."

This pro se Plaintiff is at a loss to understand how, if the loss of First Amendment freedoms (for even minimal periods of time) constitutes irreparable injury, the same is not true for the loss of Second Amendment freedoms. Especially in light of this Court's observation from the above case that one does not have to prove harm but that it is only likely. (“that irreparable injury is likely in the absence of an injunction.”) Especially since, as I've argued before, the result of not being able to defend oneself (or others) from violent crime can result in literal irreparable harm. Not only to Plaintiff but to the public.

In the above case, the Court took the time to rehearse the legal standards in issuing a Preliminary Injunction. And granted the Injunction. Here, the Court is silent, simply stating I have not met the burden of satisfying Rule 65(b). Unlike other federal judges in my research (Chief Judge Ted Stewart of the District of Utah, for example), this Court did not document any specific defects, nor offer guidance as to how this pro se can cure those defects. Here the Court simply jumps from "not met the burden of Rule 65(b)" to abstention.

I am at a loss to understand how two similar cases can have two antithetical outcomes, especially since, arguably, mine has more meat showing harm and unconstitutional deprivations. It the difference in the parties?

Endnotes

The Court may skip to the "Wherefore" if it wishes. What follows should be moot, since I have shown that abstention is not viable because state judges cannot be judges in their own cause. Nevertheless, because a right is deemed waived if no objection, and because an argument not raised in District Court is waived on appeal, for the sake of completeness in anticipation of an appeal:

Taken if true, Part I

It is my understanding, as a pro se litigant, that Plaintiff's "factual allegations are taken as true and construed in the light most favorable to the plaintiff." Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). But when I tell the Court, as a statement of fact, that the ten day "expedited" hearing to challenge a civil Injunction against Harassment is patently unconstitutional and therefore, not a remedy, this Court tells me that's false. (Doc. 4, p2, line 26 to p3, line 6.) There are two issues here: 1) the fallacy that truth will prevail in court and 2) the fallacy that ten days is enough time to gather material evidence for a defense.

As to the first, while I suppose I should be pleased that this Court believes my legal constitutional arguments (which ones? First Amendment? Second Amendment?) should prevail if I challenged the Injunction in state, that is no guarantee and not a viable remedy. This Court knows that courts are arbitrary and capricious. Sadly, our justice system is often like a game of Poker. You can have the best hand. You can play your cards just right. But you can still lose.

To wit, not even federal judges in different Districts agree on the constitutionality of ObamaCare, even when considering the same arguments. Sometimes different plaintiffs get different results from the same judge. Having a "legitimate basis" or having the truth does not guarantee one will prevail in court. (Cf. Pilate v Jesus.) I proved this when I petitioned the Arizona Supreme Court to repeal it's unlawful Rule 6(E)(4)(e)(2). My "legitimate" argument was rejected, even though the Justices acknowledged some of my arguments were worthy of consideration.

Further, challenging the lawfulness of Rule 6(E)(4)(e)(2) in any lower court is pointless. A lower court cannot (and will not) invalidate a Rule made by the Supreme Court.

As to the second fallacy, this Court knows that, if I had to appeal a lower court's decision, appellate courts do not accept new evidence or new facts. A defendant has to have ALL his ducks in the initial appearance to make them available on appeal. I have already told this Court why ten days does not constitutionally qualify as "due process." In my amended complaint, I added the fact that Mr. Bodine would have to move the Arizona court for leave to Intervene (or something like that) because defendant Jones' Injunction unlawfully modifies father's visitation rights. (See ZAC, FN 11 and Exhibit B, attached, for support.) As a new fact, I called Mr. Bodine the other day and asked him how long he thought it would take him to prepare such a motion. Never having done it before, he guessed "three weeks." Further, he travels a lot on business, so even if his ex-wife does not challenge his motion for leave to Intervene, it may be a while before a trial can be had where he can participate. And I would need to subpoena some of the adult children to be hostile witnesses, which takes time. As I told this Court in my complaint, there is no way a zealous defense can be mounted in ten days and Arizona's expedited hearing is illusionary.

Moreover, this Court has forgotten the realities of litigation. If I lose in the first round, it will cost me a few hundred dollars for a certified transcript of the court proceedings, a necessity in Arizona for an appeal. But there is no remedy to recover this cost from a petitioner if I prevailed in vacating the Civil Injunction. So an appeal automatically causes irreparable harm to Plaintiff. This violates due process and equal protection under law. (It's not equal because petitioner can file before the court at no cost or bond requirement, but doing so can automatically cost a "victim" hundreds of dollars to challenge. Michael Roth (of Quartzsite), cited in my ZAC, paid an attorney $1000 to defend a vacated Injunction.)

Taken if true, Part II

Along similar lines (and please forgive me if I am wrong. It is hard to read inflection in the written word), this Court seems to question my claim that my name has been placed in the FBI's NCIC database. (Not that it "will be placed" as the Court said, but it has been placed. (Doc. 4. p2, line 24).)

Again, I assumed the Court would take what I said as true and did not think it would be necessary to supply this evidence. But in case there is genuine controversy here, I supply Exhibit C, a copy of JP Judge Mary Hamm's "Notice to Sheriff of Brady Disqualification."

Please see the line "and should be assigned a positive Brady Record Indicator in the Protection Order File of the National Crime Information Center database."

For the nth time, I point out that this is patently unlawful and a violation of my constitutional right to due process, since I was never served with, nor found to be in violation of, a Title 13 Criminal Order of Protection. There must be countless other Arizonan who have been victimized by the Arizona Supreme Court because of this. The federal court is the proper forum to stop the abuse.

Since putting my name in the database was the procedure in my first Injunction, there is good cause to believe it is still procedure and has happened again.

Even if , despite all the arguments above there was somehow a viable remedy at the state level to resolve all the constitutional claims here; or, even if, defendant Jones were to vacate the Injunction against me, the damage has been done. The State does not have the power to grant me an audit of the FBI's NCIC database, nor does the state have the power to order the FBI to remove my name from the database if stuck there. As far as I know, only a federal court can grant that remedy.