18402 N 19th Ave., #109
Phoenix, AZ 85023
602-513-3738 [email protected]
This is my reply to the Comment made by the Commission on Judicial Conduct.
The Commission appears to be accusing me of lying to this Court, claims my issue is not ripe, head fakes a requirement for good cause, overlooks the real issue, and then proposes an impractical ivory tower workaround to a real world problem.
II. Request for Summary Rejection of the Commission's Comment.
But before rebutting the Commission, I request that this Court summarily reject the Commission's Comment. Although this Court's Rule 28 allows "any person" to comment on a rule petition, this Court should consider the Commission persona non grata and summarily reject its Comment for any of the following three reasons:
1) According to the Commission's web page, the Commission is "an independent state agency," which is "responsible for investigating complaints against justices and judges."
The latter statement is true. The Commission was constitutionally created for only one purpose: To discipline judges. (Note that it was NOT created to bully lawyers or pro se litigants, as I will develop later.) Nowhere in the Arizona Constitution has the Commission been given the authority to make the disciplinary Rules it is charged with enforcing. Similarly, the Commission, as ostensibly an "independent" agency (independent of the court), should not be commenting on the very Rules that it is to enforce, because that is biased and prejudicial.
That is, the Commission here is showing its bias and prejudice against any judges of faith who might come under its discipline if a judge follows a different Master than the Commission in this matter of homosexuality or transvestism.
If the individual judges and lawyers in the Commission wanted to comment, they were free to do so in their individual capacity. They should not have used the prestige of the Commission to speak out. This, in itself, is a violation of the Code of Conduct, which I will address in point 3.
2) While the Commission claims to be an "independent" state agency, the reality is that the Commission is stacked with members from the Judicial branch.
Specifically, the Commission has 11 members. Six are the court's own justices and judges. Two are court sanctioned attorneys. Only three are truly independent public members. Thus, 8 out of 11 members of the Commission are beholden to this Court. (By oath.)
This, on its face, gives rise to the appearance of impropriety when the Commission comments. That is, it could appear to the public that the Court's members in the Commission are doing the Court's dirty work by filing this Comment. Worse, it gives rise to the appearance of more impropriety if this Court rubber stamps the Court's/Commission's Comment.
3) Given the makeup of the Commission, basic mathematics dictates that there must have been at least one judge who voted in favor of the Commission commenting here. (That is, say that the public members and the two attorney members voted to comment, but most of the judges were against commenting. There had to be at least one judge who voted in favor of this Comment to get a needed 6-5 majority to green light it.)
So then at least one judge on the Commission is abusing their prestige of the Commission to sway this Court.
Abusing prestige of Office is a violation of the Commission's own Code of Judicial Conduct. (Rule 1.3.) Since this is unlawful, this Court should reject the Commission's Comment since it is a product of an unlawful act. (Fruit of the poisonous tree doctrine.)
On the assumption that this Court will not honor my request to summarily reject the Commission's Comment, then:
1) As to lying: I am confused by the Commission's reference to the report in my petition as "anecdotal" and "theoretical." Should I be insulted? Is the Commission accusing me of fabricating a false report?
If so, it is public record that I have been active in things judicial for at least fifteen years now. The current Chief Justice himself can attest to the veracity of my reporting from his time as presiding judge in Yavapai County. As can the Commission from the same time period. As such, I assure this Court that the report in my petition is true.
2) Ripeness: The "dilemma" in my petition is very real and, in fact, made national news a few weeks ago, when a judge in Connecticut ordered lawyers from the Scottsdale Alliance Defending Freedom to refer to males as "transgender females."
This is a case where the ADF challenged Connecticut's policy of allowing males, who say that they're females, to compete in women's athletic events.
Here is a link from a source favoring the Commission's spin, which called the ADF a "hate group." (For "consistently 'attacking' the 'rights' of LGBTQ Americans in the courts across the country.")
Although the news story is spun godless Left, at least they quoted the court transcript. Here the judge is telling the ADF attorney what is court sanctioned correct speech.
Judge Chatigny: "What I'm saying is you MUST refer to them as 'transgender females' rather than as 'males.' Again, that's the more accurate terminology... (Emphasis mine.)
"Referring to these individuals as 'transgender females' is consistent with science, common practice and perhaps human decency. .... [Even though, according to science and societal norms up until now, they are males because they have both an X and a Y chromosome.] So going forward, we will not refer to the proposed intervenors as 'males'; understood? ...
"So if you feel strongly that you and your clients have a right to refer to these individuals as 'males' and that you therefore do not want to comply with my order, then that's unfortunate. ... I don't want to bully you, but at the same time, I don't want you to be bullying anybody else. ... But I certainly don't want to put CIVILITY at risk in this case. Quite the opposite. My goals for this case include, very importantly, the goal of maintaining civil discourse, respectful, humane, intelligent, civil discourse in the course of the case."
Note that the judge here is doing the very thing that this Court/Commission wants Arizona judges to do. He is forcing/ bullying litigants to express a message contrary to their deepest conviction.
And, more subtlety, he is doing it under the guise of State mandated Politically Correct speech, calling it "civil." The implication is that it is uncivil - "doubleplusungood" - to not call a transvestite man a "she" in court. And not only is it uncivil, it is "crimethink," since refusal to speak "civilly" is punishable by loss of liberty or monetary fine. (The terms are from George Orwell's 1984.) More subtly, the Court is effectively judge in my heart, since, according to Rule 2.3, by refusing to call a man a "she," I am biased, prejudiced. (And, not yet said in the Rule, I am hate filled.) This Court does not have the authority to rule over what is in my heart.
So the issue in my petition is real. And it is ripe.
3) As to Good Cause for a Rule Change: As it goes to the Commission's argument that there is not good cause for a rule change:
a) There is nothing in Rule 28 that requires establishing good cause for a rule change. So the Commission's argument is specious on its face.
b) Even if good cause for a rule change were required, I have shown that the issue is ripe. The Court need not wait for a litigant to suffer a contempt of court proceeding and then suffer years more to take this matter to a Supreme Court before this Court acts here. Metaphorically speaking, this Court need not wait for a certain number of people to be harmed in an intersection before installing a stop light in the courts. This Court can save people from harm now. (Being put in jail for contempt of court is real harm. Not like "hurt feelings," which is fake harm.)
4) As to the Commission's naïve workaround: The Commission says that this issue could be avoided by referring to individuals as "Plaintiff," "Defendant," or "Witness Doe." Wrong. I addressed this in FN 2 in my petition.
While this workaround might work on paper filings - although briefs will become less brief than they are now if the pronouns "he" or "she'" cannot be used - this workaround will not work in the real world of a court.
We all use the pronouns "he" and "she" regularly and instinctively as a normal part of speech and life. So even if, say, I were willing to capitulate to the State, and speak only what the State deems is politically correct "civil" speech, and so tried to avoid calling a transvestite man a "he" by referring to him as "the plaintiff," I could be held in contempt when I slip up, unintentionally, as I surely would, when I instinctively refer to the man as "he."
IV. The Conclusion of the matter
The Commission got one thing right when it said that my petition "effectively seeks to abrogate Rule 2.3's requirement that judges REQUIRE lawyers, court staff and others subject to the judge's direction and control to refrain from" speech/thoughts that the State has not deemed Politically Correct.
This is true. Abrogation is called for per the Arizona Constitution. For Rule 2.3 goes too far.
Look, the Commission was constitutionally created with one purpose: to discipline judges. The Commission does not have the authority to discipline lawyers, court staff, or others under the judge's "control," which is, indirectly, what the Commission is doing here. The Commission - and by extension - this Court, have made judges middle men and Bullies. (As Connecticut Judge Chatigny plainly acknowledged to the ADF attorney, above, when he talked about bullying the ADF lawyer into submission.)
Is that what this Court wants?
Look, if it is really the policy of the Judiciary of Arizona that anyone who enters a courtroom must waive their First Amendment right to exercise their religion and their First Amendment right to Free Speech, and be forced by the courts to express a message contrary to their deepest convictions, then this Court should make a statewide Administrative Order, saying that anyone who refuses to use State mandated politically correct speech in court will be held in contempt of court.
But going about it indirectly, by putting judges in the middle, making them take the hit if they don't act as Hit Men to enforce their Mafia Boss' will, is not the way to force this policy.
(Even so, notice that my petition is very narrow. I have not petitioned the Court to protect judges of faith from being forced "to express a message contrary to their deepest convictions." I leave such a petition to judges of faith, if there are any in the judiciary. In my petition, I am only petitioning to preserve the Free Speech rights of non-judges, especially as it pertains to pro se litigants.)
The Court already has a Code of Conduct for Judicial Employees, where it can require staff members to speak (and think) Politically Correctly. (Which it does already in its similar Rule 2.3 there.) This Court, through its Bar, already has Rules of Professional Conduct for Lawyers, where it can force licensed attorneys to speak (and think) Politically Correctly. So for those directly under the court's jurisdiction, there are ways to force your will on your employees/officers.
What the Court is doing here, either by design or accident, is to try to force all Arizonans to think the Court's way in court by compelling speech. But, quoting from Brush & Nib (at ¶ 164), "Freedom of speech and religion requires tolerance of different beliefs and points of view."
Ironically, as Rule 2.3 stands now, the Court is being intolerant. The Court should adopt my petition in "tolerance of another's beliefs."