Since these filings, our blogger filed a Notice of change of judge for cause, a motion for reconsideration and a reply to plaintiff's goofy Response.
Will post soon.
thomas-morgan v. palmer
Court paperwork in the case of Melody Thomas-Morgan v. Palmer, 20110410J in the so-called Prescott "Justice" court, an (unconstitutional) ex parte civil injunction against harassment.
Friday, September 21, 2012
Don't forget your Certificate of Service
We add this unusual Certificate of Service, since Prescott Justice Court Presiding Judge Arthur Markham told our blogger he would be arrested for serving papers on the petitioner, even though serving such papers is required by law!
Certificate of Service:
Defendant files this notice ex parte because, in a previous injunction with this same plaintiff, despite Rule 5(a) of Civil Procedure to serve all papers on plaintiff (and contrary to Superior Court Judge Bluff's Order ordering same during appeal), Justice of the Peace Markham ordered this defendant NOT to serve court papers on plaintiff.
In fact, Judge Markham hinted at criminal sanctions if I served court papers on plaintiff. As the statutes are quite unforgiving for violating an Injunction, lawful or not, pro se defendant, even acting as his own attorney, will not risk the legitimate act of serving a copy of this petition on plaintiff.
Defendant has lodged an extra copy of this paper for the court to mail to the plaintiff as it has in the past.
Defendant files this notice ex parte because, in a previous injunction with this same plaintiff, despite Rule 5(a) of Civil Procedure to serve all papers on plaintiff (and contrary to Superior Court Judge Bluff's Order ordering same during appeal), Justice of the Peace Markham ordered this defendant NOT to serve court papers on plaintiff.
In fact, Judge Markham hinted at criminal sanctions if I served court papers on plaintiff. As the statutes are quite unforgiving for violating an Injunction, lawful or not, pro se defendant, even acting as his own attorney, will not risk the legitimate act of serving a copy of this petition on plaintiff.
Defendant has lodged an extra copy of this paper for the court to mail to the plaintiff as it has in the past.
Motion to Compel Disclosure
In theory, in a civil Injunction against harassment, your accuser (the petitioner) has to make their case. "The plaintiff shall prove the case by a preponderance of the evidence . . ." ARPOP Rule 8. (Although the ARPOP is not law. It is only a guide.)
The "evidence" is supposed to be ONLY the material cited in the petitioner's petition.
But our blogger's personal experience and observation is that judges always allow the petitioner to introduce new evidence at your hearing, evidence you've never seen before and so aren't prepared to defend against. (In fact, in one case, cheating Judge Mary Hamm and a court clerk allowed a petitioner to slip documents into the court file! A felony!) This is violation of your Fourteenth Amendment right to Due Process, as codified in the Arizona Rules of Civil Procedure.
A professional attorney might object to new evidence not being disclosed beforehand, citing the Rules of Evidence and Rules of Civil Procedure. But dumb pro se's don't know all that, and judges don't listen to dumb pro se's anyway.
So might as well head 'em off at the pass. File this Motion. Even if it's denied, when your accuser tries to slip in new accusations against you, and you object, this will help your appeal.
The "evidence" is supposed to be ONLY the material cited in the petitioner's petition.
But our blogger's personal experience and observation is that judges always allow the petitioner to introduce new evidence at your hearing, evidence you've never seen before and so aren't prepared to defend against. (In fact, in one case, cheating Judge Mary Hamm and a court clerk allowed a petitioner to slip documents into the court file! A felony!) This is violation of your Fourteenth Amendment right to Due Process, as codified in the Arizona Rules of Civil Procedure.
A professional attorney might object to new evidence not being disclosed beforehand, citing the Rules of Evidence and Rules of Civil Procedure. But dumb pro se's don't know all that, and judges don't listen to dumb pro se's anyway.
So might as well head 'em off at the pass. File this Motion. Even if it's denied, when your accuser tries to slip in new accusations against you, and you object, this will help your appeal.
Defendant files this Motion under protest, holding that Arizona Injunction law is patently unconstitutional when applied ex parte (as here), as it violates defendant's right to due process as codified in the Fourteenth Amendment and Article 2, Section 4 of the Arizona constitution.
This Motion should not be necessary, since, technically, a plaintiff in an Injunction hearing is only allowed to enter material presented at petition as evidence.
Nevertheless, it is defendant's personal experience, reenforced by numerous observations of other injunction hearings, that the courts in Arizona routinely allow plaintiffs to present new evidence at a challenge hearing than originally presented in the Injunction petition.
Naturally, it is impossible for a defendant to rebut new material that has not been disclosed beforehand and this practice violates the spirit of Rule 301 of the Rules of Evidence, if not the Rule itself. It also violates Rule 26.1 of Rules of Civil Procedure (Duty to Disclose). And of course, this practice violated a defendant's Fourteenth Amendment right to due process, as also guaranteed by Article 2, Section 4 of the Arizona constitution.
Nevertheless, since this is the state of affairs in Arizona courts, defendant moves the court to order plaintiff to disclose all material to defendant since petition that she intends to introduce as evidence at the challenge hearing.
As this court allowed before, defendant will lodge an extra copy of this motion with the court to serve on plaintiff, since defendant has been threatened in the past by Judge Markham for complying with Rule 5(a).
DATED this 18th day of August, 2012
MEMORANDUM AND POINTS OF AUTHORITY
This Motion should not be necessary, since, technically, a plaintiff in an Injunction hearing is only allowed to enter material presented at petition as evidence.
Nevertheless, it is defendant's personal experience, reenforced by numerous observations of other injunction hearings, that the courts in Arizona routinely allow plaintiffs to present new evidence at a challenge hearing than originally presented in the Injunction petition.
Naturally, it is impossible for a defendant to rebut new material that has not been disclosed beforehand and this practice violates the spirit of Rule 301 of the Rules of Evidence, if not the Rule itself. It also violates Rule 26.1 of Rules of Civil Procedure (Duty to Disclose). And of course, this practice violated a defendant's Fourteenth Amendment right to due process, as also guaranteed by Article 2, Section 4 of the Arizona constitution.
Nevertheless, since this is the state of affairs in Arizona courts, defendant moves the court to order plaintiff to disclose all material to defendant since petition that she intends to introduce as evidence at the challenge hearing.
As this court allowed before, defendant will lodge an extra copy of this motion with the court to serve on plaintiff, since defendant has been threatened in the past by Judge Markham for complying with Rule 5(a).
DATED this 18th day of August, 2012
Notice for Finding of Fact
Judges hate this, but it's your right. And, since our blogger's personal experience and observation is that judges make up facts and law more often than not, you had better hold them accountable and MAKE them state, for the record, the facts and law they're citing. It will make your appeal that much easier.
A Rule52(a) Notice forces the issue. It's a simple, perfunctory Notice.
A Rule52(a) Notice forces the issue. It's a simple, perfunctory Notice.
Pursuant to A.R.S. § 22-211 and Superior Court Rule of Civil Procedure 52(a), defendant Peter Michael Palmer serves this Notice on the Court requesting a finding of facts and conclusion of law in this above referenced matter.
Defendant files this Notice under protest, holding that Arizona Injunction law is patently unconstitutional when applied ex parte (as here), as it violates defendant's right to due process as codified in the Fourteenth Amendment and Article 2, Section 4 of the Arizona constitution.
MEMORANDUM AND POINTS OF AUTHORITY
Rule 52(a) states, "In all actions tried upon the facts without a jury or with an advisory jury, the court, if requested before trial, shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action.Requests for findings are not necessary for purposes of review. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or minute entry or memorandum of decision filed by the court."
Defendant Palmer so requests before trial.
While there can be no harm to plaintiff by not receiving a copy of this Notice, since the notice is perfunctory and impinges only on the court, as this court allowed before, defendant will lodge an extra copy of this notice with the court to serve on plaintiff since defendant Palmer has been threatened in the past by Judge Markham for complying with Rule 5(a).
DATED this 18th day of August, 2012
Defendant files this Notice under protest, holding that Arizona Injunction law is patently unconstitutional when applied ex parte (as here), as it violates defendant's right to due process as codified in the Fourteenth Amendment and Article 2, Section 4 of the Arizona constitution.
MEMORANDUM AND POINTS OF AUTHORITY
Rule 52(a) states, "In all actions tried upon the facts without a jury or with an advisory jury, the court, if requested before trial, shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action.Requests for findings are not necessary for purposes of review. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or minute entry or memorandum of decision filed by the court."
Defendant Palmer so requests before trial.
While there can be no harm to plaintiff by not receiving a copy of this Notice, since the notice is perfunctory and impinges only on the court, as this court allowed before, defendant will lodge an extra copy of this notice with the court to serve on plaintiff since defendant Palmer has been threatened in the past by Judge Markham for complying with Rule 5(a).
DATED this 18th day of August, 2012
Motion fo menal exam of Thomas-Morgan
It has been our bloggers experience and observation that women who seek these injunctions are generally paranoid and mentally sick.
Did you know that Arizona law prohibits someone of unsound mind from getting an Injunction? And that you have the right to request a court ordered mental exam of your accuser?
If you have good cause for it, there's no harm in filing a motion for a mental exam of your accuser.
A full PDF with the exhibits coming soon.
Did you know that Arizona law prohibits someone of unsound mind from getting an Injunction? And that you have the right to request a court ordered mental exam of your accuser?
If you have good cause for it, there's no harm in filing a motion for a mental exam of your accuser.
A full PDF with the exhibits coming soon.
Pursuant to A.R.S. § 22-211 and Superior Court Rule of Civil Procedure 35(a), defendant files this Motion requesting a court ordered mental exam of Plaintiff Melody Thomas-Morgan before defendant's requested hearing.
Defendant files this Notice under protest, holding that Arizona Injunction law is patently unconstitutional when applied ex parte (as here), as it violates defendant's right to due process as codified in the Fourteenth Amendment and Article 2, Section 4 of the Arizona constitution.
Rule 35(a) states, “When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or psychologist or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”
Further, A.R.S. § 12-2202 requires that "Persons who are of unsound mind at the time they are called to testify shall not be witnesses in a civil action."
Plaintiff Thomas-Morgan’s petition for an Injunction per A.R.S. § 12-1809 is a civil action by definition, being under Title 12. Defendant believes Thomas-Morgan is of unsound mind and cannot be called to testify. If so found, that would make the Injunction hearing pointless, since she is the primary witness who must make her case.
NOTE: If she is found of unsound mind, then this Injunction should be quashed sua sponte since 1) it was issued in violation of A.R.S. § 12-2202 then and 2) the defendant cannot testify to sustain the Injunction now.
Good cause for a mental exam of Thomas-Morgan exists for the following reasons:
1) Her own attorney told the court that "my client is in absolute serious need of counseling. She likewise basically is someone I would characterize [as] suffering from post traumatic stress [disorder]. And Judge, she is in counseling . . . " (Statement of Chester Lockwood, attorney, in case DO 2006-0917. Exhibit 1, line 8 ff.)
According to the Department of Veterans Affairs, PTSD is a "mental disorder." (See the 4th edition of the Diagnostic and Statistical Manual for Mental Disorders, available on the Internet.)
2) Consistent with this, plaintiff's father-in-law, who has Ph.D.'s in Clinical Social Work and in Social Service Administration and who knew his daughter-in-law during her 20 plus years of marriage to his son, attested that, "In my opinion, Melody [plaintiff] seems to be developing these same characteristics [as her mother] and I have advised her to seek more intensive psychiatric counseling and perhaps medication at this time." (Affidavit of Mr. Robert J. Bodine, Exhibit 2.)
3) Consistent with this, plaintiff's home church elder of many years suggested to another church leader that ". . . Melody [plaintiff] is a totally different individual than the person we knew. At this particular time in her life, she could be experiencing a chemical imbalance in her body . . ." (Letter from Warren Rushton, Bible Teacher, Exhibit 3.)
4) Consistent with this, plaintiff has exhibited paranoia and continues to exhibit paranoia. (Defined as an irrational fear.) For some examples:
a) She hired armed security guards for her daughter's wedding. (Testimony of husband at trial in DO 2006-0917. Exhibit 4, line 13.) Father was not invited to wedding. Wedding held in Prescott. Father went to Flagstaff the day of his daughter's wedding. There were no confrontations of any kind at the wedding.
I trust the court recognizes that having armed guards at a wedding is not normal.
b) Plainitff moved herself and the children out of the primary family residence without telling her husband or the court (or anyone) after plaintiff stopped home-schooling the children and enrolled them in a public school on questionable legal grounds.
According to her testimony in court, she did this simply because a friend, this defendant, had called a school supervisor about the move. (See meandering testimony of plaintiff, then known as Melody Bodine, Exhibit 5, p 57 through 60.) As Mrs. Bodine testifies, defendant did not go to the school. Defendant made merely made a phone call from Phoenix.
Nevertheless, Mrs. Bodine scooped up her children and herself to move out of the primary residence.
c) Even former Superior Court Judge Hinson weighed in on plaintiff's mental state when he continued her Order of Protection against her then husband. Arguably continuing the OOP for the wrong reason (A.R.S. § 12-2202 applied and Mrs. Bodine should not have been allowed to testify), Judge Hinson said, "if I don't continue this order of protection, she's liable to decide that she has to take the children and go off to someplace where no can find her because of her desire to indulge her fear in order to reinforce her decision to continue on this course of separation from [her husband.]." (Exhibit 6.) Again, paranoia is defined as an irrational fear.
5) Similarly, plaintiff has trouble with reality and does not know her own name.
In a police report, plaintiff reported to police that her maiden name was "Thomas-Morgan." (This was before plaintiff changed her surname to "Thomas-Morgan.") But in fact, plaintiff's maiden name is "Eells." (See police report and marriage license, Exhibit 7.)
6) As it pertains to trouble with reality, paranoia and this instant injunction, plaintiff's sworn petition to the court would have the court believe that, due to defendant's previous martial art training, he might "do a quick chop to my neck and kill me."
This would be laughable if it weren't so seriously sad.
Defendant has no belts in Karate and does not know how to do a "quick chop" to kill someone. This is the stuff movies are made of. And movies are fantasies. Not reality.
Defendant offers a more realistic alternative narrative to plaintiff's freaky recollection of past events from happier times. (See Exhibits 8.) In addition to being an enjoyable read, this will help the court as it considers this motion regarding plaintiff's soundness of mind.
While this list is by no means exhaustive, the mere fact that plaintiff suffered from PTSD and was in counseling demands that defendant, and this court, know if plaintiff continues to suffer from PTSD, is in counseling or is on medications.
Therefore, for any or all these reasons, good cause exists for defendant's requests of a psychiatric exam of plaintiff Thomas-Morgan.
As this court allowed before, defendant will lodge an extra copy of this motion with the court to serve on plaintiff since defendant Palmer has been threatened in the past by Judge Markham for complying with Rule 5(a). Once plaintiff is noticed, the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made can be determined.
DATED this 18th day of August, 2012
Defendant files this Notice under protest, holding that Arizona Injunction law is patently unconstitutional when applied ex parte (as here), as it violates defendant's right to due process as codified in the Fourteenth Amendment and Article 2, Section 4 of the Arizona constitution.
MEMORANDUM AND POINTS OF AUTHORITY
Rule 35(a) states, “When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or psychologist or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”
Further, A.R.S. § 12-2202 requires that "Persons who are of unsound mind at the time they are called to testify shall not be witnesses in a civil action."
Plaintiff Thomas-Morgan’s petition for an Injunction per A.R.S. § 12-1809 is a civil action by definition, being under Title 12. Defendant believes Thomas-Morgan is of unsound mind and cannot be called to testify. If so found, that would make the Injunction hearing pointless, since she is the primary witness who must make her case.
NOTE: If she is found of unsound mind, then this Injunction should be quashed sua sponte since 1) it was issued in violation of A.R.S. § 12-2202 then and 2) the defendant cannot testify to sustain the Injunction now.
Good cause for a mental exam of Thomas-Morgan exists for the following reasons:
1) Her own attorney told the court that "my client is in absolute serious need of counseling. She likewise basically is someone I would characterize [as] suffering from post traumatic stress [disorder]. And Judge, she is in counseling . . . " (Statement of Chester Lockwood, attorney, in case DO 2006-0917. Exhibit 1, line 8 ff.)
According to the Department of Veterans Affairs, PTSD is a "mental disorder." (See the 4th edition of the Diagnostic and Statistical Manual for Mental Disorders, available on the Internet.)
2) Consistent with this, plaintiff's father-in-law, who has Ph.D.'s in Clinical Social Work and in Social Service Administration and who knew his daughter-in-law during her 20 plus years of marriage to his son, attested that, "In my opinion, Melody [plaintiff] seems to be developing these same characteristics [as her mother] and I have advised her to seek more intensive psychiatric counseling and perhaps medication at this time." (Affidavit of Mr. Robert J. Bodine, Exhibit 2.)
3) Consistent with this, plaintiff's home church elder of many years suggested to another church leader that ". . . Melody [plaintiff] is a totally different individual than the person we knew. At this particular time in her life, she could be experiencing a chemical imbalance in her body . . ." (Letter from Warren Rushton, Bible Teacher, Exhibit 3.)
4) Consistent with this, plaintiff has exhibited paranoia and continues to exhibit paranoia. (Defined as an irrational fear.) For some examples:
a) She hired armed security guards for her daughter's wedding. (Testimony of husband at trial in DO 2006-0917. Exhibit 4, line 13.) Father was not invited to wedding. Wedding held in Prescott. Father went to Flagstaff the day of his daughter's wedding. There were no confrontations of any kind at the wedding.
I trust the court recognizes that having armed guards at a wedding is not normal.
b) Plainitff moved herself and the children out of the primary family residence without telling her husband or the court (or anyone) after plaintiff stopped home-schooling the children and enrolled them in a public school on questionable legal grounds.
According to her testimony in court, she did this simply because a friend, this defendant, had called a school supervisor about the move. (See meandering testimony of plaintiff, then known as Melody Bodine, Exhibit 5, p 57 through 60.) As Mrs. Bodine testifies, defendant did not go to the school. Defendant made merely made a phone call from Phoenix.
Nevertheless, Mrs. Bodine scooped up her children and herself to move out of the primary residence.
c) Even former Superior Court Judge Hinson weighed in on plaintiff's mental state when he continued her Order of Protection against her then husband. Arguably continuing the OOP for the wrong reason (A.R.S. § 12-2202 applied and Mrs. Bodine should not have been allowed to testify), Judge Hinson said, "if I don't continue this order of protection, she's liable to decide that she has to take the children and go off to someplace where no can find her because of her desire to indulge her fear in order to reinforce her decision to continue on this course of separation from [her husband.]." (Exhibit 6.) Again, paranoia is defined as an irrational fear.
5) Similarly, plaintiff has trouble with reality and does not know her own name.
In a police report, plaintiff reported to police that her maiden name was "Thomas-Morgan." (This was before plaintiff changed her surname to "Thomas-Morgan.") But in fact, plaintiff's maiden name is "Eells." (See police report and marriage license, Exhibit 7.)
6) As it pertains to trouble with reality, paranoia and this instant injunction, plaintiff's sworn petition to the court would have the court believe that, due to defendant's previous martial art training, he might "do a quick chop to my neck and kill me."
This would be laughable if it weren't so seriously sad.
Defendant has no belts in Karate and does not know how to do a "quick chop" to kill someone. This is the stuff movies are made of. And movies are fantasies. Not reality.
Defendant offers a more realistic alternative narrative to plaintiff's freaky recollection of past events from happier times. (See Exhibits 8.) In addition to being an enjoyable read, this will help the court as it considers this motion regarding plaintiff's soundness of mind.
CONCLUSION
While this list is by no means exhaustive, the mere fact that plaintiff suffered from PTSD and was in counseling demands that defendant, and this court, know if plaintiff continues to suffer from PTSD, is in counseling or is on medications.
Therefore, for any or all these reasons, good cause exists for defendant's requests of a psychiatric exam of plaintiff Thomas-Morgan.
As this court allowed before, defendant will lodge an extra copy of this motion with the court to serve on plaintiff since defendant Palmer has been threatened in the past by Judge Markham for complying with Rule 5(a). Once plaintiff is noticed, the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made can be determined.
DATED this 18th day of August, 2012
Motion to Quash Injunction
Our blogger hopes some attorney can make use of this. (Judges like it better when attorneys plead their cause vs. dumb pro se's.) Arizona Injunction law is unconstitutional on its face, since it doesn't, by law, comport with federal Rule 65.
Also, our blogger cites Lafaro v. Cahill about injunctions and protected speech.
Also, our blogger cites Lafaro v. Cahill about injunctions and protected speech.
Defendant Peter Michael Palmer moves this court to quash the above-referenced ex parte Injunction for the reasons below. Pursuant to Super.Ct.Local Prac.Rules, Yavapai County, Rule 15, pro se defendant asks for leave of the court if I exceed a page limit.
Defendant files this motion under protest, holding that Arizona Injunction law is patently unconstitutional when applied ex parte (as here).
I. Arizona ex parte Injunction law, A.R.S. § 12-1809, is unconstitutional
While defendant realizes that even the Arizona Court of Appeals is reluctant to rule statutes unconstitutional, the case must be made here.
Depriving a person of liberty or property via an ex parte action is patently unconstitutional by definition. An ex parte action, being one sided, violates our right to due process as guaranteed in both the U.S. constitution's Fourteenth Amendment and the Arizona constitution's Article 2, Section 4. The latter plainly says, "No person shall be deprived of life, liberty, or property without due process of law." But this is exactly what an ex parte injunction does!
While federal courts (and so state courts too) have temporarily allowed such constitutional deprivations when "immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition," the deprivation is only allowed with numerous safeguards for a very short time (fourteen days in federal, ten in Arizona) to minimize damage to the adverse party. But A.R.S. § 12-1809 E. eviscerates two of the safeguards put in place by the federal (and Arizona state) courts when issuing injunctions.
Namely, 1809 E. says, "Rules 65(a)(1) and 65(e) of the Arizona rules of civil procedure do not apply to injunctions that are requested pursuant to this section." (In fact, Rule 65(d)—which calls for an ex parte injunction to expire within ten (10) days—does not apply either. Nor does Rule 65(h) as it pertains to setting "forth the reasons for its issuance . . .")
Now, Rule 65(a)(1) says, "No preliminary injunction shall be issued without notice to the adverse party." But an ex parte civil injunction is a de facto one year preliminary injunction without notice to the adverse party!
And Rule 65(e) says "No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant . . ." The purpose of demanding security is to protect adverse parties by preventing, or at least minimizing frivolous petitions for injunctions. But the Legislature has unconstitutionally done away with that protection. Consequently, since there is no down side to filing a fraudulent or frivolous petition, it's no surprise that injunctions against harassment are abused to harass.
Furthermore, there are three more constitutional protections in federal case law that are lacking in Arizona Injunction law.
In the Federal Court, Injunctions are an "extraordinary remedy" and rarely granted. Whereas in Arizona, civil injunctions against harassment are granted for the asking. In the Federal Court, an Injunction maintains the status quo. In Arizona, Injunctions upset the status quo.
In the Federal Court, there is a balancing test typically employed to determine whether to issue an injunction. The defendant's Fifth Amendment due process rights are weighed (heavily) against the immediacy of the harm allegedly done to the plaintiff. But in Arizona, one citizen can swear out a false or frivolous petition against another with no consequences, and totally ex parte, deprive another citizen his constitutional rights! (And force defendants in an Injunction to incur attorney fees with no remedy for recovery since there is no security required from which to recompense defendants.) There is no balancing test in Arizona at all. All the weight is given to the petitioner.
In an attempt to mitigate this unconstitutional practice in Arizona of "guilty until proven innocent," Arizona ostensibly guarantees the defendant in an Injunction a speedy trial (within ten days of request) to challenge and quash an Injunction. That, however, is illusionary and does not ameliorate the constitutional harm.
Ten days is not enough time for a zealous defense considering pretrial motions that might need to be filed. (Say, a motion for a mental exam of the petitioner. Or motions for discovery. Or whatever.) After the commensurate back and forth of Response & Reply, time can easily extend to months before a hearing. Moreover, record requests, say from the police department, needed to defend oneself, take longer than ten days and cause delay. (Not to mention that it costs the defendant time and money to do all this, whereas it cost the plaintiff nothing to bring the action.)
So then, because this ex parte injunction is unconstitutional on its face, lacking any of the four safeguards federal law put in place, this injunction must be quashed.
II. The Injunction unconstitutionally violates defendant's right to free speech
A. Arizona case law
Defendant refers the court to the Arizona Court of Appeals case, LaFaro v. Cahill ((App. Div.1 2002) 203 Ariz. 482, 56 P.3d 56) which is on point in this case. (Except that, in LaFaro, there was one actual incident of contact. Whereas in this case, defendant has not had any contact with plaintiff for seven or eight years now. Consistent with this, plaintiff does not allege any contact by defendant, either with her or the children.)
Now, according to the Court of Appeals, "The legislature likely intended A.R.S. § 12-1809 to provide a civil (i.e., non-criminal) method to help protect citizens from stalkers . . . " (¶22)
As above, plaintiff does not allege any stalking behavior by defendant, let alone any contact by defendant against her or the children. Therefore, as in LaFaro, the injunction must be quashed for failing to meet the statutory requirements to issue an injunction. (¶16)
Instead, it's evident from plaintiff's petition that her sole reason for wanting an injunction is because she is unhappy with defendant because she tripped across an "outrageous" blog about her, http://thatwomanjezebel.blogspot.com, which she doesn't like. She protests, as cause for an injunction, that "None of what he says about me is true." Clearly, then, this is about content of speech.
According to her petition, plaintiff's sole proximate reason for seeking an injunction in April is because, in March 2011, presumably while 'googling' for her name, she discovered a blog titled "That Woman Jezebel." But the blog shows it's been up since December 2010, four months prior to her petition for an Injunction Against Harassment. The point being, she did not pursue an injunction until she became aware of the blog — on her own.
She swears on oath the blog talks about her "death." (Note that she consistently put "death" in quotes in her petition.) But that's not true. The blog never mentions the "death" of Miss Thomas-Morgan. (Nor were the Bodine minor children ever mentioned by name in the blog at that time, as she falsely swears.)
It is true that the blog That Woman Jezebel talks about spiritual life and spiritual death of a Melody Bodine. That would be spiritual "death," as frequently talked about in the Bible, as in "The wages of sin is death. (Romans 6:23a.) Spiritual "death" as also in the well known verse (among born-again Christians): "As for you, you were dead in your transgressions and sins . . ." (Ephesians 2:1)
In fact, the header in the blog says, "On the life... err, death and death of Mrs. Melody Anne Bodine, 6/25/1982 - 4/21/2009." The "birth date" of 6/25/1982 is not the former Mrs. Bodine's birth date, but the date of the former Mrs. Bodine's wedding, when she became Mrs. Bodine. The "death date" is the date Mrs. Bodine legally changed her name. Of course the significance of these particular dates are obvious to Miss Thomas-Morgan. She knows full well that the blog is not calling for anyone's death. It's merely documenting a former wife's spiritual passing.
Plaintiff refers to "lies" about her. But that is not grounds for a court to issue an Injunction. At best, if she's correct (that there are lies about her in the blog) that is libel. The proper remedy for libel is a civil suit, not an abuse of law, seeking an Injunction against harassment.
As to the "outrageous" speech in the blog, in LaFaro, the Court noted "As a general matter, in public debate [as in a blog on the Internet] our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment." (at ¶20)
As to "overhearing" conversation on the Internet by plaintiff, quoting Lafaro at ¶13, "Both parties acknowledge that [they] had no direct contact or communication . . . Although LaFaro [plaintiff] may have overheard a segment of that conversation [as here, overhearing something on the Internet], Cahill's communication does not satisfy the statutory definition of harassment, which requires a harassing act to be 'directed at' the specific person complaining of harassment."
Plaintiff LaFaro claims, as plaintiff implies here, that the defendant called him names. (¶14) But the Court of Appeals felt especially "compelled to address the unconstitutional applications of § 12-1809 to permit an injunction placing significant restrictions on [the defendant's] freedom of speech." The Court ruled that "The injunction against Cahill was unconstitutionally broad because of its infringement of his First (and Fourteenth) Amendment right to free speech as well as Cahill's right to free speech under the Arizona constitution." (¶16) The Court also noted that "We are confident that the legislature did not intend § 12-1809 to be used for issuance of injunctions restricting political speech." (¶22)
In fact, the Arizona Legislature recently reaffirmed its intentions regarding protected speech by way of H.B. 2549, which "amends §§ 13-2916 and 13-2923, Arizona Revised Statutes; relating to Electronic or digital devices." The Arizona Legislature took a lot of heat and ridicule from the nation when it was reported that the Legislature's first pass at this amendment was overbroad and infringed on the First Amendment rights of bloggers as it would criminalize speech that "annoyed" or "offended." Subsequently, the Legislature modified its Bill, removing those two elements, thus showing it did not mean to restrict protected speech. The news report from the outrageous Phoenix New Times newspaper blog sums it up pretty well: "Feel Free to Continue Being an A-Hole on the Internet." (Exhibit 1)
By extension, the First Amendment right to free political speech must also extend to free religious speech too, as the U.S. Supreme Court recently ruled. (See B, below.)
Even plaintiff agrees with this. In a Cease and Desist letter sent defendant, plaintiff acknowledges through her attorney that the blog, thatwomanjezebel.blogspot.com, is First Amendment protected speech, stating ". . . you certainly have the right to blog" about the plaintiff. (Exhibit 2.) Further, she goes on to acknowledge the spiritual nature of the blog in the C&D letter, asking defendant for a treatise on John 8:7 in the Bible.
Because LaFaro, the Arizona Legislature and even the plaintiff agree that speech on the Internet is protected speech, the injunction was issued unlawfully and should be quashed.
B. Federal Law
In March 2011, a month before the Prescott court granted plaintiff's ex parte petition, the U.S. Supreme Court ruled 8-1 that "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate." (Quoting Justice Roberts in Snyder v. Phelps, et al. 562 U. S. ____ (2011)) That case was about religious free speech. (The infamous Westboro Baptist church.) But in Prescott, the court punished the speaker.
Similarly, in mid-July 2011, the Ninth Circuit reversed a criminal conviction of a man who blogged about 50 caliber bullets and a presidential candidate. Ostensibly real, serious "death threats." But as Chief Judge Kozinski wrote, "Taking the two message board postings in the context of all of the relevant facts and circumstances, the prosecution failed to present sufficient evidence to establish beyond a reasonable doubt that Bagdasarian had the subjective intent to threaten a presidential candidate . . . given any reasonable construction of the words in his postings, those statements do not constitute a “true threat,” and they are therefore protected speech under the First Amendment." United States v. Bagdasarian, 2011 WL 2803583 (9th Cir. July 19, 2011)
Similarly, taking the blog thatwomanjezebel.blogspot.com in the context of all of the relevant facts and circumstances, given any reasonable construction of the words in the postings, the statements in the blog do not constitute a “true threat,” and they are therefore protected speech.
There is nothing in the blog thatwomanjezebel.blogspot.com about bullets. Nor are there threats of any kind. Even plaintiff knows this. In her petition, she consistently puts the word "death" in quotes, making it clear that even she understands the word is not to be taken literally. As such, she acknowledges there is no "true threat."
And again plaintiff knows her Injunction is really just a ploy to squelch defendant's First Amendment rights. Exhibit 3 is an email between plaintiff and her personal police liaison, Dan Murray of the Prescott Police. Referring to the defendant as "Dufus #2," she says "He does not have all the freedom he thinks he has under the First Amendment. Yeah! [sic]"
Actually, according to the U.S. Supreme Court, the Ninth Circuit and the Arizona Court of Appeals, I do. WE do.
It's obvious that plaintiff is simply unhappy that some of us exercise our First Amendment right saying things she does not want to hear. But the court should note that no one is forcing her listen.
CONCLUSION
This injunction should be quashed for any of three reasons. First, an ex parte injunction without federal Rule 65 safeguards, which is what we have in this instance by statute, is facially unconstitutional.
Second, the Arizona Court of Appeals said "Section 12-1809 is intended to address a situation in which a person directs harassing conduct at his target repeatedly." (¶15) Blogging about someone on the Internet is not "harassing conduct," let alone conduct. The Arizona Legislature recently reaffirmed our right to be outrageous on the Internet by removing the words "annoy or offend" from its first overbroad draft of H.B. 2549 defining harassment. (That is, it's not harassment to annoy or offend on the Internet.) Furthermore, the amended law only applies to telephone calls, text messages, instant messages and email. (i.e., directed communication.) None of which have been sent by defendant to plaintiff. Defendant has not had any contact with plaintiff for seven or eight years!
Third, per LaFaro, the Ninth Circuit and the SCOTUS, an injunction against harassment cannot be issued simply because one citizen is unhappy that another citizen exercised his First Amendment rights to free protected speech. That this injunction was issued in the first place punishes the speaker, a path affirmatively rejected by the SCOTUS.
Therefore, the injunction must be quashed.
As this instant court allowed before, defendant will lodge an extra copy of this notice with the court to serve on plaintiff, since defendant has been threatened in the past by Judge Markham for complying with Rule 5(a) while under an Injunction.
DATED this 18th day of August, 2012
Defendant files this motion under protest, holding that Arizona Injunction law is patently unconstitutional when applied ex parte (as here).
MEMORANDUM AND POINTS OF AUTHORITY
I. Arizona ex parte Injunction law, A.R.S. § 12-1809, is unconstitutional
While defendant realizes that even the Arizona Court of Appeals is reluctant to rule statutes unconstitutional, the case must be made here.
Depriving a person of liberty or property via an ex parte action is patently unconstitutional by definition. An ex parte action, being one sided, violates our right to due process as guaranteed in both the U.S. constitution's Fourteenth Amendment and the Arizona constitution's Article 2, Section 4. The latter plainly says, "No person shall be deprived of life, liberty, or property without due process of law." But this is exactly what an ex parte injunction does!
While federal courts (and so state courts too) have temporarily allowed such constitutional deprivations when "immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition," the deprivation is only allowed with numerous safeguards for a very short time (fourteen days in federal, ten in Arizona) to minimize damage to the adverse party. But A.R.S. § 12-1809 E. eviscerates two of the safeguards put in place by the federal (and Arizona state) courts when issuing injunctions.
Namely, 1809 E. says, "Rules 65(a)(1) and 65(e) of the Arizona rules of civil procedure do not apply to injunctions that are requested pursuant to this section." (In fact, Rule 65(d)—which calls for an ex parte injunction to expire within ten (10) days—does not apply either. Nor does Rule 65(h) as it pertains to setting "forth the reasons for its issuance . . .")
Now, Rule 65(a)(1) says, "No preliminary injunction shall be issued without notice to the adverse party." But an ex parte civil injunction is a de facto one year preliminary injunction without notice to the adverse party!
And Rule 65(e) says "No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant . . ." The purpose of demanding security is to protect adverse parties by preventing, or at least minimizing frivolous petitions for injunctions. But the Legislature has unconstitutionally done away with that protection. Consequently, since there is no down side to filing a fraudulent or frivolous petition, it's no surprise that injunctions against harassment are abused to harass.
Furthermore, there are three more constitutional protections in federal case law that are lacking in Arizona Injunction law.
In the Federal Court, Injunctions are an "extraordinary remedy" and rarely granted. Whereas in Arizona, civil injunctions against harassment are granted for the asking. In the Federal Court, an Injunction maintains the status quo. In Arizona, Injunctions upset the status quo.
In the Federal Court, there is a balancing test typically employed to determine whether to issue an injunction. The defendant's Fifth Amendment due process rights are weighed (heavily) against the immediacy of the harm allegedly done to the plaintiff. But in Arizona, one citizen can swear out a false or frivolous petition against another with no consequences, and totally ex parte, deprive another citizen his constitutional rights! (And force defendants in an Injunction to incur attorney fees with no remedy for recovery since there is no security required from which to recompense defendants.) There is no balancing test in Arizona at all. All the weight is given to the petitioner.
In an attempt to mitigate this unconstitutional practice in Arizona of "guilty until proven innocent," Arizona ostensibly guarantees the defendant in an Injunction a speedy trial (within ten days of request) to challenge and quash an Injunction. That, however, is illusionary and does not ameliorate the constitutional harm.
Ten days is not enough time for a zealous defense considering pretrial motions that might need to be filed. (Say, a motion for a mental exam of the petitioner. Or motions for discovery. Or whatever.) After the commensurate back and forth of Response & Reply, time can easily extend to months before a hearing. Moreover, record requests, say from the police department, needed to defend oneself, take longer than ten days and cause delay. (Not to mention that it costs the defendant time and money to do all this, whereas it cost the plaintiff nothing to bring the action.)
So then, because this ex parte injunction is unconstitutional on its face, lacking any of the four safeguards federal law put in place, this injunction must be quashed.
II. The Injunction unconstitutionally violates defendant's right to free speech
A. Arizona case law
Defendant refers the court to the Arizona Court of Appeals case, LaFaro v. Cahill ((App. Div.1 2002) 203 Ariz. 482, 56 P.3d 56) which is on point in this case. (Except that, in LaFaro, there was one actual incident of contact. Whereas in this case, defendant has not had any contact with plaintiff for seven or eight years now. Consistent with this, plaintiff does not allege any contact by defendant, either with her or the children.)
Now, according to the Court of Appeals, "The legislature likely intended A.R.S. § 12-1809 to provide a civil (i.e., non-criminal) method to help protect citizens from stalkers . . . " (¶22)
As above, plaintiff does not allege any stalking behavior by defendant, let alone any contact by defendant against her or the children. Therefore, as in LaFaro, the injunction must be quashed for failing to meet the statutory requirements to issue an injunction. (¶16)
Instead, it's evident from plaintiff's petition that her sole reason for wanting an injunction is because she is unhappy with defendant because she tripped across an "outrageous" blog about her, http://thatwomanjezebel.blogspot.com, which she doesn't like. She protests, as cause for an injunction, that "None of what he says about me is true." Clearly, then, this is about content of speech.
According to her petition, plaintiff's sole proximate reason for seeking an injunction in April is because, in March 2011, presumably while 'googling' for her name, she discovered a blog titled "That Woman Jezebel." But the blog shows it's been up since December 2010, four months prior to her petition for an Injunction Against Harassment. The point being, she did not pursue an injunction until she became aware of the blog — on her own.
She swears on oath the blog talks about her "death." (Note that she consistently put "death" in quotes in her petition.) But that's not true. The blog never mentions the "death" of Miss Thomas-Morgan. (Nor were the Bodine minor children ever mentioned by name in the blog at that time, as she falsely swears.)
It is true that the blog That Woman Jezebel talks about spiritual life and spiritual death of a Melody Bodine. That would be spiritual "death," as frequently talked about in the Bible, as in "The wages of sin is death. (Romans 6:23a.) Spiritual "death" as also in the well known verse (among born-again Christians): "As for you, you were dead in your transgressions and sins . . ." (Ephesians 2:1)
In fact, the header in the blog says, "On the life... err, death and death of Mrs. Melody Anne Bodine, 6/25/1982 - 4/21/2009." The "birth date" of 6/25/1982 is not the former Mrs. Bodine's birth date, but the date of the former Mrs. Bodine's wedding, when she became Mrs. Bodine. The "death date" is the date Mrs. Bodine legally changed her name. Of course the significance of these particular dates are obvious to Miss Thomas-Morgan. She knows full well that the blog is not calling for anyone's death. It's merely documenting a former wife's spiritual passing.
Plaintiff refers to "lies" about her. But that is not grounds for a court to issue an Injunction. At best, if she's correct (that there are lies about her in the blog) that is libel. The proper remedy for libel is a civil suit, not an abuse of law, seeking an Injunction against harassment.
As to the "outrageous" speech in the blog, in LaFaro, the Court noted "As a general matter, in public debate [as in a blog on the Internet] our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment." (at ¶20)
As to "overhearing" conversation on the Internet by plaintiff, quoting Lafaro at ¶13, "Both parties acknowledge that [they] had no direct contact or communication . . . Although LaFaro [plaintiff] may have overheard a segment of that conversation [as here, overhearing something on the Internet], Cahill's communication does not satisfy the statutory definition of harassment, which requires a harassing act to be 'directed at' the specific person complaining of harassment."
Plaintiff LaFaro claims, as plaintiff implies here, that the defendant called him names. (¶14) But the Court of Appeals felt especially "compelled to address the unconstitutional applications of § 12-1809 to permit an injunction placing significant restrictions on [the defendant's] freedom of speech." The Court ruled that "The injunction against Cahill was unconstitutionally broad because of its infringement of his First (and Fourteenth) Amendment right to free speech as well as Cahill's right to free speech under the Arizona constitution." (¶16) The Court also noted that "We are confident that the legislature did not intend § 12-1809 to be used for issuance of injunctions restricting political speech." (¶22)
In fact, the Arizona Legislature recently reaffirmed its intentions regarding protected speech by way of H.B. 2549, which "amends §§ 13-2916 and 13-2923, Arizona Revised Statutes; relating to Electronic or digital devices." The Arizona Legislature took a lot of heat and ridicule from the nation when it was reported that the Legislature's first pass at this amendment was overbroad and infringed on the First Amendment rights of bloggers as it would criminalize speech that "annoyed" or "offended." Subsequently, the Legislature modified its Bill, removing those two elements, thus showing it did not mean to restrict protected speech. The news report from the outrageous Phoenix New Times newspaper blog sums it up pretty well: "Feel Free to Continue Being an A-Hole on the Internet." (Exhibit 1)
By extension, the First Amendment right to free political speech must also extend to free religious speech too, as the U.S. Supreme Court recently ruled. (See B, below.)
Even plaintiff agrees with this. In a Cease and Desist letter sent defendant, plaintiff acknowledges through her attorney that the blog, thatwomanjezebel.blogspot.com, is First Amendment protected speech, stating ". . . you certainly have the right to blog" about the plaintiff. (Exhibit 2.) Further, she goes on to acknowledge the spiritual nature of the blog in the C&D letter, asking defendant for a treatise on John 8:7 in the Bible.
Because LaFaro, the Arizona Legislature and even the plaintiff agree that speech on the Internet is protected speech, the injunction was issued unlawfully and should be quashed.
B. Federal Law
In March 2011, a month before the Prescott court granted plaintiff's ex parte petition, the U.S. Supreme Court ruled 8-1 that "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate." (Quoting Justice Roberts in Snyder v. Phelps, et al. 562 U. S. ____ (2011)) That case was about religious free speech. (The infamous Westboro Baptist church.) But in Prescott, the court punished the speaker.
Similarly, in mid-July 2011, the Ninth Circuit reversed a criminal conviction of a man who blogged about 50 caliber bullets and a presidential candidate. Ostensibly real, serious "death threats." But as Chief Judge Kozinski wrote, "Taking the two message board postings in the context of all of the relevant facts and circumstances, the prosecution failed to present sufficient evidence to establish beyond a reasonable doubt that Bagdasarian had the subjective intent to threaten a presidential candidate . . . given any reasonable construction of the words in his postings, those statements do not constitute a “true threat,” and they are therefore protected speech under the First Amendment." United States v. Bagdasarian, 2011 WL 2803583 (9th Cir. July 19, 2011)
Similarly, taking the blog thatwomanjezebel.blogspot.com in the context of all of the relevant facts and circumstances, given any reasonable construction of the words in the postings, the statements in the blog do not constitute a “true threat,” and they are therefore protected speech.
There is nothing in the blog thatwomanjezebel.blogspot.com about bullets. Nor are there threats of any kind. Even plaintiff knows this. In her petition, she consistently puts the word "death" in quotes, making it clear that even she understands the word is not to be taken literally. As such, she acknowledges there is no "true threat."
And again plaintiff knows her Injunction is really just a ploy to squelch defendant's First Amendment rights. Exhibit 3 is an email between plaintiff and her personal police liaison, Dan Murray of the Prescott Police. Referring to the defendant as "Dufus #2," she says "He does not have all the freedom he thinks he has under the First Amendment. Yeah! [sic]"
Actually, according to the U.S. Supreme Court, the Ninth Circuit and the Arizona Court of Appeals, I do. WE do.
It's obvious that plaintiff is simply unhappy that some of us exercise our First Amendment right saying things she does not want to hear. But the court should note that no one is forcing her listen.
CONCLUSION
This injunction should be quashed for any of three reasons. First, an ex parte injunction without federal Rule 65 safeguards, which is what we have in this instance by statute, is facially unconstitutional.
Second, the Arizona Court of Appeals said "Section 12-1809 is intended to address a situation in which a person directs harassing conduct at his target repeatedly." (¶15) Blogging about someone on the Internet is not "harassing conduct," let alone conduct. The Arizona Legislature recently reaffirmed our right to be outrageous on the Internet by removing the words "annoy or offend" from its first overbroad draft of H.B. 2549 defining harassment. (That is, it's not harassment to annoy or offend on the Internet.) Furthermore, the amended law only applies to telephone calls, text messages, instant messages and email. (i.e., directed communication.) None of which have been sent by defendant to plaintiff. Defendant has not had any contact with plaintiff for seven or eight years!
Third, per LaFaro, the Ninth Circuit and the SCOTUS, an injunction against harassment cannot be issued simply because one citizen is unhappy that another citizen exercised his First Amendment rights to free protected speech. That this injunction was issued in the first place punishes the speaker, a path affirmatively rejected by the SCOTUS.
Therefore, the injunction must be quashed.
As this instant court allowed before, defendant will lodge an extra copy of this notice with the court to serve on plaintiff, since defendant has been threatened in the past by Judge Markham for complying with Rule 5(a) while under an Injunction.
DATED this 18th day of August, 2012
Motion for continuance
Defendant Peter Michael Palmer has filed this day a Request for Hearing in the above-referenced Injunction, which, by statute, is to be held within ten (10) days of request.
However, since defendant has filed this same day several pre-trial motions and notices which will require responses and rulings from the court, defendant moves this court for a continuance along with an Order accelerating the time for plaintiff to respond, as this court has done before.
Defendant requests a hearing be set approximately four weeks from receipt of these filings, on Wednesday, September 12, 2012.
Since defendant has now waived his right to a hearing within ten days (but not a hearing before the injunction lapses), the court can act sua sponte to issue the continuance requested. That is, the court need not wait on a response from plaintiff to issue a continuance.
Defendant files this Notice under protest, holding that Arizona Injunction law is patently unconstitutional when applied ex parte (as here), as it violates defendant's right to due process as codified in the Fourteenth Amendment and Article 2, Section 4 of the Arizona constitution.
As this court allowed before, defendant will lodge an extra copy of this notice with the court to serve on plaintiff, since defendant has been threatened in the past by Judge Markham for complying with Rule 5(a).
DATED this 18th day of August, 2012
However, since defendant has filed this same day several pre-trial motions and notices which will require responses and rulings from the court, defendant moves this court for a continuance along with an Order accelerating the time for plaintiff to respond, as this court has done before.
Defendant requests a hearing be set approximately four weeks from receipt of these filings, on Wednesday, September 12, 2012.
Since defendant has now waived his right to a hearing within ten days (but not a hearing before the injunction lapses), the court can act sua sponte to issue the continuance requested. That is, the court need not wait on a response from plaintiff to issue a continuance.
Defendant files this Notice under protest, holding that Arizona Injunction law is patently unconstitutional when applied ex parte (as here), as it violates defendant's right to due process as codified in the Fourteenth Amendment and Article 2, Section 4 of the Arizona constitution.
As this court allowed before, defendant will lodge an extra copy of this notice with the court to serve on plaintiff, since defendant has been threatened in the past by Judge Markham for complying with Rule 5(a).
DATED this 18th day of August, 2012
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