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Last Post 01 Jul 2013 02:40 PM by  MRoth
R-12-0007 Rule 6(E)(4)(e)(2), Rules of Protective Order Procedure
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lkoschney
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12 Jan 2012 12:15 PM
    R-12-0007

    Petition to Repeal Rule 6(E)(4)(e)(2), Rules of Protective Order Procedure

    Would repeal the rule, which petitioner believes unconstitutionally criminalizes the possession, purchase, or receipt of firearms and ammunition by a defendant who is the subject of a civil injunction

    Petitioner:
    Michael Roth
    PO Box 422
    Quartzsite, AZ 85346
    Ph: 928-927-8888
    Fax: mrotha1@aol.com

    The Court issued the following Order on August 30, 2012:

    IT IS ORDERED that the draft amendment shall be opened for comment until May 20, 2013.

    COMMENTS DUE May 20, 2013.

    ADOPTED as modified, effective January 1, 2014.
    Attachments
    MPalmer
    Posts:

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    13 Apr 2012 06:48 PM
    Mike Palmer
    18402 N. 19th Ave., #109
    Phoenix, AZ 85023
    mikepalmer_arizona@fastmail.fm

    Comment in support of Michael Roth's petition to repeal ARPOP Rule 6(E)(4)(e)(2)for being unconstitutionally created, a violation of Article 3 of the Arizona Constitution.
    Attachments
    MPalmer
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    23 Apr 2012 05:00 PM
    Mike Palmer
    18402 N. 19th Ave., #109
    Phoenix, AZ 85023
    mikepalmer_arizona@fastmail.fm

    Supplemental comment, adding more historical data to my previous comment in support of Michael Roth's petition to repeal ARPOP Rule 6(E)(4)(e)(2)for being unconstitutionally created, a violation of Article 3 of the Arizona Constitution.
    Attachments
    kradwanski
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    18 May 2012 09:49 AM
    Hon. Emmet J. Ronan
    Superior Court in Maricopa County
    Southeast Court
    222 E. Javelina
    Mesa, AZ 85210
    Telephone: (602) 506-0438
    Facsimile: (602) 506-1848
    Chair, Committee on the Impact of Domestic Violence and the Courts
    Attachments
    mlanda
    Posts:

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    18 May 2012 06:50 PM
    John A. Furlong, Bar No. 018356
    General Counsel
    STATE BAR OF ARIZONA
    4201 N. 24th Street, Suite 100
    Phoenix, Arizona 85016-6266
    (602) 252-4804
    John.Furlong@staff.azbar.org
    Attachments
    mlanda
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    02 Jul 2012 11:40 AM
    Michael Roth
    PO Box 422
    Quartzsite, AZ 85346
    928-927-8888
    mrotha1@aol.com
    Attachments
    MPalmer
    Posts:

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    12 Jul 2012 10:16 AM
    Michael Roth
    PO Box 422
    Quartzsite, AZ 85346
    Ph: 928-927-8888
    Fax: mrotha1@aol.com
    -----------------------------------------------------------------------------------------------------------------------------
    I found that, just the other day, AFTER the deadline had passed for my reply on my Emergency Petition to Repeal ARPOP Rule 6.E.4.e.2., that the CIDVC finally posted the minutes from its February meeting. Considering that the meeting was in February and that this is July, and that the minutes contain "material evidence" on civil IAH's, crucial to the discussion of my petition, it appears the CIDVC acted in bad faith by purposely holding back its minutes.

    Therefore, I ask the Supreme Court for a special dispensation to post the following as an add on to my reply.
    *************************************************************************************
    A popular adage in politics is "Follow the Money." Citizens hope that adage doesn't apply to the Arizona Supreme Court. However, as I pointed out in my reply, the CIDVC is playing politics as it promulgates the anti-gun agenda of the Brady Campaign. But now there's evidence the CIDVC is also promulgating the Federal government's agenda as well!

    From the CIDVC February minutes, which were posted after the June 30 deadline had passed for my reply to repeal Rule 6.E.4.e.2.:
    (http://www.azcourts.gov/Portals/74/...14.12.pdf)

    "Section II
    C. U.S. Department of Justice – VAWA Grant

    Jeff Schrade, director, AOC Education Services Division, and Julee Ewy Bruno, ESD specialist, reported on the VAWA grant received by ESD last quarter. The $50,000 grant runs until June 30, 2013. The primary goal of the funds is to increase the knowledge of best practices within the judiciary regarding ex parte and contested civil protective orders. The objectives in reaching that goal are:

    - To enhance the DV bench book and develop an accompanying workbook that will contain best practices, rules of procedures, civil protective orders, statutes, resources, and forms."

    No wonder the CIDVC delayed posting this.

    The Court, via the AOC, has a financial interest in ex parte civil injunctions! The federal government is influencing the Court to violate the rights of Arizona citizens! How are we "little people" supposed to fight this when it appears the Court is being paid off?
    MPalmer
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    15 Jul 2012 12:41 AM
    Mike Palmer
    18402 N. 19th Ave., #109
    Phoenix, AZ 85023
    mikepalmer_arizona@fastmail.fm


    In light of Mr. Roth's latest finding, that this Court has accepted $50,000 from the federal government to promulgate rules about ex parte civil "protective orders," and since his petition is about repealing Rule 6(E)(4)(e)(2), which is doubly unconstitutional when applied in ex parte civil injunctions, the Court must immediately return the money it received from the government as it considers Mr. Roth's petition. (Hah.)

    When the Court accepts money from the federal government, it appears the Court is being influenced by the federal government. Consider: What if the Court decided to repeal Rule 6(E)(4)(e)(2)? Would that please the VAMA contingent from on high? Would the feds pull the grant this year and/or not offer it next year? Isn't that specter there? If the Court does not repeal Rule 6(E)(4)(e)(2), can't the public reasonably speculate that the Court was bought off?

    It should go without saying that the Arizona Supreme Court should not be influenced by the federal government, state sovereignty and all that. If the Arizona Legislature thought it best to "increase the knowledge of best practices within the judiciary" regarding ex parte injunctions, then the Arizona Legislature should provide the impetus for that. (Albeit through independent funding, outside the Judiciary.) Direction to the Arizona Supreme Court should not come from someone in Washington, D.C.

    Canon 1 of the Code of Conduct says "A judge shall uphold and promote the Independence, Integrity, and Impartiality of the judiciary." That extends to the Court. By accepting money from an outside agency, the Court is no longer independent or impartial. By accepting money, the Court violates the second half of Canon 1, that the Court "shall avoid Impropriety and the appearance of Impropriety."

    The Court can only accept money from the Legislature for administration of the courts. (Salaries, operational expenses, etc.) But a cursory review of the CIDVC meeting minutes shows the Court is flush with money from "Recovery Act: STOP (domestic violence against women)." In February, 2010, the Court put in for a $1 million grant from the DOJ! (Which, among other things, would pay for a junket.) Anytime outside money is taken, especially money to promulgate a cause, no matter how valiant the cause may appear, the Court's independence can be questioned.

    As it stands now, it appears there's a quid pro quo to maintain the status quo on Rule 6(E)(4)(e)(2). It appears the Court is taking a bribe. For the sake of public confidence in the judiciary, the Court should return the money and repeal this lawless Rule.
    MPalmer
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    01 Nov 2012 06:41 PM
    Mike Palmer
    18402 N. 19th Ave., #109
    Phoenix, AZ 85023
    602-513-3738
    mikepalmer_arizona@fastmail.fm

    Since some here claim to "live in the real world," I offer that Mr. Roth's petition to repeal ARPOP Rule 6(E)(4)(e)(2) is no longer an academic exercise. It's now become very real.

    To wit, I got a call a few weeks ago from a desperate Phoenix police officer. (He found me via Google when he searched for civil injunctions and the Second Amendment.) He's about to permanently lose his job of 12 years as a proximate result of an unlawful, unconstitutional revocation of his Second Amendment right via a civil injunction. (As a cop, no gun = no job.)

    The issue here is not the injunction per se. The issue is the lawless revocation of a constitutional right, unconstitutionally promulgated as substantive law by this Court's ARPOP Rule 6(E)(4)(e)(2). (The ARPOP being a mere Rule 28 rule of (internal) administration for the Court, not binding as law on all Arizonans.)

    Specifically, after a hearing for a civil injunction against workplace harassment [FN 1], one of the judiciary's "fine and highly respected group of professionals"--a bounced around pro tem JP-- issued a criminal domestic violence "Brady Disqualification" against our cop, causing his name to be placed on the FBI's NCIC database as a domestic violence prohibited possessor! [FN 2] But this wasn't a DV situation. (No intimate partner.)

    As I have repeatedly said in this forum, the Arizona Legislature did not authorize a judicial officer to revoke one's Second Amendment constitutional right (let alone any constitutional right) in a civil injunction. The word "firearm" is not in A.R.S. §§ 12-1809 and 1810. (Injunction Against Harassment and Injunction Against Workplace Harassment, respectively.) Moreover, the statute for Workplace Harassment has specific verbiage from the Legislature that used to be in §12-1809, that "This section does not [p]ermit a court to issue a temporary restraining order or injunction that prohibits speech or other activities that are constitutionally protected . . . " § 12-1810 (K)(2).

    Even though that language is no longer in §12-1809, according to FN 7 in LaFaro v. Cahill, 203 Ariz. 482, P.3d 56 (App. 2002), that statute likewise does not permit a court to issue an injunction that prohibits constitutionally protected activities. [FN 3]

    Despite being educated about the law in a motion to reconsider (after the officer was forced to hire an attorney to defend his constitutional rights), the JP in our "professional and impartial court system" refuses to uphold the constitution or the law by vacating her unlawful Brady Disqualification. As a result, the cop is about to be fired.

    A Notice of Appeal has been filed and I'm hopeful this instant error will be corrected. Unfortunately, the officer (who is burning up vacation time) will be terminated a month from now (December 1) and will be irreparably harmed (he and his wife will lose their house) unless this matter can be remedied in four weeks. Which isn't likely. (Especially considering the Thanksgiving Holiday.)

    Sadly, part of the problem here is promulgated by the CIDVC's "one form fits all" approach to petitions for civil Injunctions Against Harassment, which lumps criminal DV Orders of Protection with civil IAH's on one form, failing to distinguish that the Second Amendment Firearm restriction checkbox on the form can, by law, ONLY be checked off in a criminal DV situation.

    Better in the first place if this Court didn't posture through the ARPOP that a judicial officer could revoke a constitutional right in a civil injunction. And better if this Court would insist on two separate forms for petitions for criminal OOP's vs civil IAH's, since they're not the same but distinct. (Criminal vs. civil.)

    FN 1 - Not the cop's workplace. Rather, the workplace of some foes his wife is suing in a federal civil rights lawsuit. The foes have offered (in writing) to withdraw the injunction against our cop in exchange for his wife withdrawing her federal lawsuit. (Arguably extortion.) As I've said elsewhere, "Harassment law is being used to harass."

    FN 2 - Initially, he was told to turn over his gun in an ex parte action and had to stop working immediately. A patent violation of his Fourteenth Amendment right to due process.

    FN 3 - Ironically (and interestingly), ARPOP Rule 6(F)(4)(d), the Workplace Harassment equivalent of Rule 6(E)(4)(e)(2), does not mention firearms. Rather, it simply quotes the pertinent statute without adding to it. So even though the ARPOP is not law, this JP can't even cite the ARPOP as good faith basis to invoke a firearm restriction in this Injunction against Workplace harassment.
    MRoth
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    07 Nov 2012 09:48 AM
    Michael Roth
    PO Box 422
    Quartzsite, AZ 85346
    928-927-8888
    mrotha1@aol.com

    Great. I petitioned you to repeal your unconstitutional rule. Instead, you double down and want to amend it to make it worse.

    Well, go ahead. Amend your rule all you want. Violate your oath of office. Don't uphold the constitution. Why not go all the way and amend your rule to put citizens in jail in civil injunctions simply because one citizen swears (without consequence for lying) that another is a "credible" threat?

    Yours is a Rule 28 administrative rule. It doesn't apply to me because I'm not a "judge, an attorney or judicial staff." So I will not abide by your rule. I will abide by law - the Constitution. (Both U.S. and Arizona.) I encourage citizens everywhere reading this to do the same and not give up their rights.

    As judges, you might say what I suggest is "illegal." Or even "anarchy."

    But the Founders (and I) say what you suggest is illegal. Or even "tyranny."
    MPalmer
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    10 Dec 2012 05:59 PM
    Mike Palmer
    18402 N. 19th Ave., #109
    Phoenix, AZ 85023
    602-513-3738
    mikepalmer_arizona@fastmail.fm

    =======

    Division 2 of the Arizona Court of Appeals gets it.

    In an Opinion dated October 18, 2012, the Court of Appeals stated that civil injunction law (A.R.S. § 12-1809) does not authorize orders concerning firearms in civil harassment actions.

    The case is Mahar v. Acuna (2012 WL 5055125 (Ariz.App. Div. 2))
    available at www.apltwo.ct.state.az.us/Decisions/CV20120060Opinion.pdf.

    While that case was about a CRIMINAL domestic violence action (vacating an unjustified deprivation of a citizen's constitutional (Second Amendment) right via that action), the court touched on civil injunction harassment law in its Opinion.

    In paragraph 20, the court said,

    "Our statutes do not authorize [orders concerning firearms] to discourage people from yelling or engaging in 'harassment' of the type proscribed by A.R.S. § 12-1809(R)." [FN1]

    So, this ruling should end ARPOP Rule 6(E)(4)(e)(2). As the Court of Appeals correctly noted, there is no statutory authority for judicial officers to issue orders prohibiting firearms in civil actions under A.R.S. § 12-1809, even if a judge finds "harassment."

    As such, the Arizona Supreme Court cannot be telling judicial officers (via the ARPOP) that they have authority to prohibit firearms under civil harassment law.

    The rule of law requires ARPOP Rule 6(E)(4)(e)(2) be repealed.


    [FN1] Further, the Court of Appeals went on to say, "Nor do our statutes authorize the use of firearms restrictions to provide incentives for positive behavior or to teach people a '[l]esson' about civilized conduct."
    MRoth
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    24 Jan 2013 05:41 PM
    Michael Roth
    PO Box 422
    Quartzsite, AZ 85346
    928-927-8888
    mrotha1@aol.com

    The Court has replaced my first post, my original petition, with a petition of its own.

    Since my original petition told my colorful story about Quartzsite Councilman Joe Winslow using this Rule to get my 2nd Amendment right revoked (after I exercised my 1st Amendment right), and since my story is still germane to this matter, I'm attaching my original petition to keep the record intact.
    Attachments
    MPalmer
    Posts:

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    25 Jan 2013 12:53 PM
    Mike Palmer
    18402 N. 19th Ave., #109
    Phoenix, AZ 85023
    602-513-3738
    mikepalmer_arizona@fastmail.fm


    As I learn more about man's law and learn your jargon, I see that I (and Mr. Roth) have been wrong as to form, incorrectly calling ARPOP Rule 6(E)(4)(e)(2) a "Rule 28" rule of administration. [FN 1]

    Rather, this ARPOP Rule is being promulgated as a rule of procedure, purportedly under Article 6, Section 5 of the Arizona Constitution.

    But this doesn't change the substance of the problem and Mr. Roth is still correct when he writes that your rule "does not apply to me." For, as this Court itself has said in an earlier time, "Any rule of court that operates to lessen or eliminate [a constitutional right] is of no legal force."

    The full quote found in Marsin v. Udall , 78 Ariz. 309, 312, 279 P.2d 721, 723 (Ariz. S. Ct. 1955), where there (as here), a judge sought to deprive a litigant of a constitutional right citing a rule of procedure.

    But "Neither this [supreme] court nor the superior court can by rule of procedure deprive a party of the opportunity to exercise this [a constitutional] right."

    Moreover, "Courts cannot enact substantive law."

    But that's what this Court is doing with Rule 6(E)(4)(e)(2), since there's no statutory authority for the Rule. (Nor could there be.)

    And here's the clincher:

    "A court is limited to passing rules which prescribe procedure for exercising the right. Any rule of court that operates to lessen or eliminate the right is of no legal force."

    So Mr. Roth is correct. Since Rule 6(E)(4)(e)(2) operates to eliminate the Second Amendment constitutional right, it has no legal force. Since the rule has no legal force, law abiding citizens are not bound by it and must uphold the real law.

    "It has even been held by the Supreme Court of the United States that under some circumstances a procedure that had such effect offended the due process clause of the Federal constitution." Q.E.D.

    Rule 6(E)(4)(e)(2) offends the constitution and must be repealed.



    FN 1 I in my comment of 11/01/2012. Mr. Roth in his comment of 11/07/2012. I admit to being functionally illiterate (a product of our public school system) when I initially read the text of Rule 28. Sorry.
    MPalmer
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    30 Jan 2013 05:15 PM
    Mike Palmer
    18402 N. 19th Ave., #109
    Phoenix, AZ 85023
    602-513-3738
    mikepalmer_arizona@fastmail.fm


    In addition to Article III of the Arizona Constitution, in addition to the Court's own Marsin v. Udall (previous comment), there is also A.R.S. § 12-109.

    Titled "Promulgation of rules of pleading, practice and procedure; distribution," the statute says:

    "The supreme court, by rules promulgated from time to time, shall regulate pleading, practice and procedure in judicial proceedings in all courts of the state . . . [b]The rules shall not abridge, enlarge or modify substantive rights of a litigant." [/b]

    Since ARPOP Rule 6(E)(4)(e)(2) abridges the Second Amendment substantive rights of Arizonans, the Rule is unlawful and must be repealed.
    kradwanski
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    17 May 2013 12:24 PM
    Hon. Emmet J. Ronan
    Superior Court in Maricopa County
    Southeast Court
    222 E. Javelina
    Mesa, AZ 85210
    Telephone: (602) 506-0438
    Facsimile: (602) 506-1848
    Chair, Committee on the Impact of Domestic Violence and the Courts
    E-mail: kradwanski@courts.az.gov
    Attachments
    SheilaPolk
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    20 May 2013 01:03 PM
    Sheila Sullivan Polk (007514)
    Elizabeth Ortiz (012838)
    Arizona Prosecuting Attorney's Advisory Council
    1951 W. Camelback Road, Suite 202
    Phoenix, AZ 85015
    Phone: 602-542-7222
    E-mail: sheila.polk@yavapai.us

    Attachments
    MRoth
    Posts:

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    01 Jul 2013 02:40 PM
    Michael Roth
    PO Box 422
    Quartzsite, AZ 85346
    928-927-8888
    mrotha1@aol.com



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