Moses Shepard
3926 North 13
Place
Phoenix, Arizona
IN THE SUPREME COURT
|
People
of Arizona, ex relatione Moses
Shepard et al., Petitioners, v. STATE
BAR OF ARIZONA et al., Respondents. |
SUPREME COURT NO. R-02-0017 COMMENT ON THE STATE BAR OF ARIZONA’S PROPOSED RULE
CHANGES, PETITION FOR SPECIAL ACTION, |
|
And
Related PETITION TO AMEND Rule 31, Arizona Rules of the Supreme
Court and TO ADD Rule 32 and Rules 76 through 80, Arizona Rules of the
Supreme Court |
MOTION TO CONSOLIDATE WITH PETITIONER’S PETITION TO REPEAL ARIZONA SUPREME COURT RULES 31-74, AND MOTION TO SUSPEND THE RULES. |
Comes now the people of Arizona
(hereinafter "Petitioners"), ex relatione Moses Shepard, (hereinafter
"Relator"), pursuant to Rule 7(a), Rules of Procedure for Special
Actions, to petition this Court against
the individual men and women doing business as,
and collectively known as, the “State Bar of Arizona” (hereinafter "the
bar"),
and to comment on
the bar’s proposed rule changes, pursuant to Rule 28(d), Ariz. R. S. Ct.. This Court is further moved to suspend the rules due to its bar
affiliation.
COMMENT ON THE
BAR’S PROPOSED RULE CHANGES
Because
the bar is, by their own admission, “not a state agency,” and, other
than mere hearsay, offers absolutely no evidence proving harm done to any
consumers, the bar lacks standing to be representing[1]
any one body, officer, or person, which, by definition, includes any alleged
consumers that it pretends to be interested in “protecting” [sic], including
representing individual bar members that are opposed to
the very existence of the bar, and, thus would like to see the bar disbanded.
JURISDICTIONAL
STATEMENT
This
special action is brought against the individual men and women doing business as, and collectively known as, the
bar, who presently usurp, intrude into, and unlawfully hold or exercise a
public office,[2] labor
organization, and or an association, resembling a franchise[3]
in Arizona. If this Court is opposed to the petitioners
bringing this action on behalf of the people of Arizona then it is requested to
state the facts which the state bar has submitted to establish their
alleged right to do so.[4]
The
petitioners also apply for damages caused by the bar due to their actions
described in the below statement of facts.
They also demand a jury trial so the issues raised herein shall be tried
and that the judgment given shall adjudge who is entitled to the office or franchise
which the bar currently purports to hold.
If judgment is given stripping the alleged “right” to the office to the
persons alleged to be entitled thereto, i.e., bar members, the petitioners
request that they may recover the damages which they have sustained by reason
of the usurpation of the office or franchise by the respondents. If it is adjudged that one single individual
or collection of individuals can presume to hold the office or franchise
presently being usurped, intruded into or unlawfully held or exercised by said
bar, then the judgment should include dissolving the bar and issuing a
permanent injunction against it in order to prevent any future lobbying efforts
to restrict the right to work in Arizona, an alleged right to work state.
This
action is brought against each
individual member of the bar because its members claim the same office or
franchise, so one action is brought against all members to try their alleged individual and collective right to that
office or franchise. Thus, if the
respondents are adjudged guilty of usurping or intruding into or unlawfully
holding an office, franchise or privilege, such respondents should be deemed
guilty of an offense justifying exclusion from their pretended office,
franchise or privilege.
This Court’s judges should also recuse
themselves so it will not decide whether or not it will accept review of this
matter, of which they are actually co-defendants, by invoking Rule 26, Ariz. R.
S. Ct., and Rule 3, ARCAP, thereby allowing a neutral body composed of
individuals, acceptable to all interested parties, that wish to comment on this
petition because this Court cannot rule on this petition for special action
impartially pursuant to the provisions of its code of judicial conduct, Rules
81-82, i.e., Canons 1-5, because each one of its member judges is also a member
of the bar.
If it does not recuse itself,
this Court is asked to state how such non-recusal is factually
consistent with its own judicial ethics rules pertaining to neutrality
and conflicts of interest. Notice is
given that there already exists precedent wherein trial court judges can sit by
designation on appellate court cases.
This is possible because many, if not most, justices of the peace are
not bar members. If this Court is not
already familiar with such precedent then cites can be provided granted leave
to do so.
In addition, the Supreme Court,
in State v. Superior Court, 103 Ariz. 208, 210, 439 P.2d 294 (1968), has
stated: “We will consider any application to this Court which states sufficient
facts to justify relief irrespective of its technical denomination.”
Jurisdiction is invoked under
A.R.S. 12-102(A) and Arizona Constitution Article 6, § 1 & 5.
STATEMENT OF THE ISSUES[5]
1.
Is the bar’s
existence factually consistent with Arizona Constitution Article 25?
2.
By what
authority did the bar file a petition to amend the rules (R02-0017) regarding
the unauthorized practice of law on April 30, 2002 when its existence is factually
inconsistent with Art. 25?
3.
Does the bar
lack standing to be acting in a representative capacity on behalf of the
consumers that it claims to be interested in protecting? See Rule 9(a), Ariz.R.Civ.P., and all
pertinent authorities.
4.
What factual
showing did it make that it had been retained by said consumers to be
acting as their alleged agent?
5.
What facts,
if any, have been presented to prove there is any principal-agent relationship
between the members of the bar, individually, or collectively, and the
consumers that they claim to represent?
6.
May these
individual consumers hold the members of the bar, individually and
collectively, responsible for their actions or omissions while the bar acts in
this alleged representative capacity?
7.
What facts
exist to show any alleged principals actually directing these alleged agents,
the bar?
8.
What facts
exist to show the defendants are acting on behalf of anyone other than
themselves?
9.
If retained
by said consumers, what standing would allow any such consumers to be
bringing any alleged complaints when their previous employ of UPL constituted
the aiding and abetting of said UPL?
10.
Is there a factual
or substantive difference between the bar and a franchise?
11.
Is the bar’s existence factually
consistent with that of a
franchise?
12.
Is the bar’s claim it is not a state agency factually
consistent with its title State Bar of
Arizona?
13.
Is there a factual
or substantive difference between the title, the “State Bar of Arizona,” and a
“doing business as” (d/b/a) title? [6]
14.
Is the very
nature of the bar’s existence factually consistent with that of a
protection racket?
15.
Is Arizona
Constitution Article 25 factually consistent with Rules 31-74, Ariz. R.
S. Ct.?
16.
Do Rules
31-74, Ariz. R. S. Ct., rely on coercion and actual physical violence for their
application and enforcement?
17.
On what
grounds (factual circumstances) can this Court decline or accept
discretionary review?
18.
Is this
Court’s acceptance or rejection of this petition factually consistent
with its prohibition against maintaining obvious conflicts of interest, i.e.,
its judicial ethics rules pertaining to neutrality?
19.
Is the bar
actually forcing their attempted rule changes (R-02-0017) on their
alleged principals?
20.
If their
principals want new changes to the rules then why do they have to be forced
upon them?
21.
Why is it
that the alleged “four hundred consumers,” who allegedly complained
about UPL in 2001, are not themselves being prosecuted for “assisting,”
facilitating, and/or aiding and abetting UPL?
22.
Do Arizona
Supreme Court judges represent the people or the bar, a confessed non-state
agency?
23.
Is this
Court’s backing of “a mere creature of the legal imagination,” i.e., the bar,
by physical violence, factually consistent with “traditional notions of
fair play and substantial justice”?
24.
How can bar
members be required to take an “oath of office” and not be “state
officers”?
25.
Is an
officer of the court an officer and/or agent of the state being that the court
is of the state?
26.
Can citizens
avoid practicing law? If so, how
can one report a crime without committing UPL?
STATEMENT OF FACTS
1.
The bar’s
membership is comprised of a group of individual men and women, substantively,
nothing more, nothing less. These
individuals are “the bar,” and “the bar,” is these individuals.
2.
These men
and women act collectively as the “State Bar of Arizona.”
3.
The Supreme Court
did not create anything tangible, they only generated an opinion that is
labeled Rule 31, Ariz. R. S. Ct., that is to say, the so-called “State Bar of
Arizona” is, quite literally, factually, nothing more than an opinion on
a piece of paper.
4.
Laws are opinions
about the way something “should be” backed by violence if one disagrees.
5.
It is
written: "Today's new rule emphasizes the dominance of the corporation, a
creature of the legal imagination. [FN2]"
State Tax Commission of Utah v. Aldrich, 316 U.S. 174, 187
(1942). "[FN2] A corporation is
defined by John Marshall as 'an artificial being, invisible, intangible, and
existing only in contemplation of law.”
Trustees of Dartmouth College v. Woodward, 4 Wheat. 518,
636. The New York Court of Appeals has
said: “A corporation, however, is a mere conception of the legislative
mind. It exists only on paper through the command of the Legislature that
its mental conception shall be clothed with power.” People v. Knapp, 206 N.Y. 373, 381, 99 N.E. 841, 844, Ann.Cas.
1914B, 243.
6.
Corporations
are abstractions so, substantively speaking, the “bar” is an idea, an
abstraction.
7.
Rule
31(a)(1), Ariz. R. Sup. Ct., refers to the bar as a “corporation” and an
“organization.”
8.
The bar is
maintained by threats of actual physical violence resulting from
violating the opinions-rules that created it, i.e., nothing more than organized
violence and organized coercion.
9.
If one
cannot afford a lawyer judges still insist that one hire a
lawyer, the alternative being that civil litigant pro pers, which are, by
definition, incompetent, are literally forced to represent themselves
even while these same judges simultaneously acknowledge pro pers in criminal
cases are incompetent.[7]
10.
Given the above
set of undeniable facts (the present status quo), the bar is a protection
racket.
11.
UPL
includes, but is not limited to: calling 911, charging a sales tax, acting as a
personal representative in a probate proceeding, going about one’s daily life
“as a law-biding citizen,” doing UPL in order to avoid doing UPL,
representing oneself in court which, by definition, requires making
legal determinations regarding the rights of others, which is the same
exact definition for the practice of law.
12.
An idea, the
“bar,” uses, and wishes to expand its use of, physical violence to
achieve its aims.[8]
13.
The bar has
presented no evidence of any principal-agent relationship with
the consumers that it claims to be protecting in its recent petition to amend
and/or add new supreme court rules (R-02-0017).
14.
The bar
represents no one other than itself.
15.
Rule
31(a)(1), Ariz. R. Sup. Ct., states the bar is a creation of the Arizona
Supreme Court.
16.
Each Arizona
Supreme Court judge is a bar member.
Effectively, this Court is the bar.
17.
Rules 31-74,
Ariz. R. S. Ct., states bar members are officers and counselors of the court
which take an oath of office that includes a political oath of allegiance. See Rule 31(c)(3), Ariz.R.Sup.Ct..
18.
As officers of the court, bar members hold, or exercise, public
office or a form of public office.
19.
Arizona’s
Constitution, at Article 25, states:
“Right to work or employment
without membership in labor organization.
No person shall be denied the opportunity to obtain
or retain employment because of non-membership in a labor
organization, nor shall the State or any subdivision thereof, or any
corporation, individual or association of any kind enter into any
agreement, written or oral, which excludes any person from employment
or continuation of employment because of non-membership in a labor
organization.” [emphasis added]
ARGUMENT
Arizona’s constitution alleges
the “right to work” free from any violence and or threats of
violence. By the bar’s own admission,
the number of complaints against bar members each and every year
are far, far more numerous than any alleged by them to
exist against any so-called “unauthorized practitioners,” if there is such a
thing. Even so, the bar currently seeks
to use violence (new changes to already factually inconsistent rules of
law to isolate and punish non-members) in order to eliminate their
competition. Truly competent
business professionals do not have to use violence in order to eliminate
their only competition, however small.
They simply compete, and let consumers decide for themselves.
Extensive legal research done by
no less than full law professors with juris doctorate degrees
and/or bar members affiliated with prestigious universities supports an
end to all mandatory bars throughout the world. See: http://humanrightsandupl.tripod.com/index.htm
and http://www.cato.org/.
The relator’s Petition To Repeal Arizona Supreme Court
Rules 31-74, (No. R-02-0027), filed on 5/23/02, is incorporated herein
by this reference, as if fully set forth herein at length. This Court is moved to consolidate this
petition with that one because they address the same operative facts.[9]
At the bar’s present website,
its home page includes the following admission concerning its “lawful”
creation: “The State Bar of Arizona is a non-profit corporation that
exists under the supervision and oversight of the Arizona Supreme Court.” See http://azbar.org/. Also, at http://azbar.org/StateBarInfo/: “the State Bar is a
non-profit corporation and not a state agency, it does not
receive financial support from the state or taxpayers. The organization's activities are funded
through membership dues and licensing fees, service fees and program
tuition.” [emphasis added]
These statements clearly admit
the absence of any specific legislation creating the bar as a duly
constituted agency of the Arizona state government. Thus, the bar was not established by the Arizona Constitution,
and is not a duly constituted office of the Arizona state government. See United States v. Germaine, 99
U.S. 508 (1879); Norton v. Shelby County, 118 U.S. 425, 441 6 S.Ct. 1121 (1886) ("there
can be no officer, either de jure or de facto, if there be no office to
fill"); United States v. Mouat, 124 U.S. 303, 8 S.Ct. 505 (1888); United
States v. Smith, 124 U.S. 525, 8 S.Ct. 595, 607, 21 S.Ct. 891 (1901)
("The law creates the office, prescribes its duties"); Cochnower
v. United States, 248 U.S. 405, 407, 39 S.Ct. 137 (1919) ("Primarily
we may say that the creation of offices and the assignment of their
compensation is a legislative function ....
And we think the delegation must have clear expression or
implication"); Burnap v. United
States, 252 U.S. 512, 516, 40 S.Ct. 374, 376 (1920); Metcalf & Eddy
v. Mitchel, 269 U.S. 513, 46 S.Ct. 172, 173 (1926); N.L.R.B. v.
Coca-Cola Bottling Co. Of Louisville, 350 U.S. 264, 269, 76 S.Ct. 383
(1956) ("'Officers' normally means those who hold defined offices. It does not mean the boys in the back room
or other agencies of invisible government, whether in politics or in the
trade-union movement."); Crowley
v. Southern Ry. Co., 139 F. 851, 853 (5th Cir. 1905); Adams v. Murphy,
165 F. 304 (8th Cir. 1908); Scully
v. United States, 193 F. 185, 187 (D.New.
1910) ("There can be no offices of the United States, strictly
speaking, except those which are created by the Constitution itself, or by an
act of Congress"); Commissioner v. Harlan, 80 F.2d. 660, 662 (9th
Cir. 1935); Varden v. Ridings, 20 F.Supp. 495 (E.D. Ky. 1937); Annoni v. Blas Nadal's Heirs,
94 E.2d 513, 515 (1st Cir. 1938); and Pope v. Commissioner, 138 F.2d
1006, 1009 (6th Cir. 1943).
Furthermore, neither the bar,
nor any of its members, assigns, or instrumentalities, may claim standing [to
do anything] without first alleging facts to show that alleged standing
to be factual:
“Standing cannot be inferred
argumentatively from averments in the pleadings, but rather must affirmatively
appear in the record; it is the burden of the party who seeks the exercise of
jurisdiction in his favor clearly to allege facts demonstrating that he is a
proper party to invoke judicial resolution of the dispute; the parties must
allege facts essential to show jurisdiction, and if they fail to make the
necessary allegations, they have not standing.” FW/PBS, Inc. v. Dallas 493 U.S. 215. 110 S.Ct. 596, 107
L.Ed.2d. 603.
“Unlike most state courts of general jurisdiction,
in which jurisdiction is generally presumed unless contrary is demonstrated, in
federal district courts absence of jurisdiction is generally presumed unless
party invoking federal jurisdiction clearly demonstrates that it exists.” State of La. v. Sprint Communications Co.
892 F.Supp. 145.
The bar cannot make any showing
of any standing to be representing any consumers. It has not and cannot provide any evidence of any principal-agent
relationship. It merely pretends that
one exists. If it claims that its
authority lies in Rules 31-74, then this belies its claims that it is “not
a state agency.”
“Silence can only be equated
with fraud where there is a legal or moral duty to speak or where an inquiry
left unanswered would be intentionally misleading.” U.S. vs. Tweel, 550 F. 2d 297, 299 (1977) quoting U.S. vs. Prudden, 424 F. 2d 1021, 1032
(1970).
“Silence constitutes an implied
representation of the existence of the state of facts in question and will
operate as an estoppel.” Carmine v. Bowen,
64 A. 932 (1906).
In Rules 31-74, Ariz. R. Sup.
Ct., the state delegates responsibilities to its agent, the bar, and yet the
bar says that it is not a state agency, so, here, the bar is not
what it claims to be, while it is what it claims it is not. It even claims that it “self-regulates”
(its members police one another), perhaps in an effort to avoid any and all
true outside oversight (consumers rarely get any satisfaction from
complaints filed against bar members), and yet this same bar wants new
rules that would have them regulate others. Thus, to be logically, as well as factually
consistent, either Rules 31-74, Ariz. R. Sup. Ct., should be repealed, or
Arizona Constitution Article 25 should be repealed, because one or the other is
a falsehood.
CONCLUSION
This honorable Court is
therefore respectfully requested to appoint a tribunal composed of non-bar
members to decide this petition, one acceptable to all interested parties
affected by an end to mandatory bar membership. Leave is also requested to file a reply to any answering
memorandum.
REQUEST FOR DAMAGES, COSTS AND EXPENSES
Damages[10]
and/or costs and expenses[11]
are requested under any and all pertinent authorities.
CERTIFICATE OF COMPLIANCE
Pursuant
to Rule 7(e), Rules of
Procedure for Special Actions, this petition’s line spacing is double, its
typeface, Times New Roman, its point size, 12, and its word count, 3276. The computer word processing system does not
state whether the text is proportionate or monospaced typeface.
Respectfully
Submitted this 9th day of July, 2002.
________________________
Moses Shepard
3926
North 13 Place
Phoenix,
Arizona
Original
and six copies filed with the Clerk of the Arizona Supreme Court on this 9th
day of July, 2002, and a copy mailed, telefaxed or hand-delivered to:
Allen
B. Shayo, Assistant Executive Director – Legal
State
Bar of Arizona
111
West Monroe, Suite 1800
Phoenix,
Arizona 85003
By:
___________________________
[1] Representing means acting on behalf of, or acting as the agent of any principal, with the principal’s knowledge and consent.
[2] See Rule 31(a)(1) and 42, Ariz. R. S. Ct., wherein bar members are deemed “officers of the court” and “public citizens.”
[3] See Black’s Law Dictionary, 6th edition, pages 658-9, for the pertinent definition of the word “franchise.”
[4] This Court is asked to state why the people cannot bring an action in the name of the people when the bar can bring an action to amend the rules to regulate the practice of law on behalf of consumers of legal services, i.e., the people, and are, thus, acting in a representative capacity on behalf of the body politic, i.e., the people of the state of Arizona.
[5] The above statement of issues should be construed in accordance with, and in light of, Arizona Rules of Procedure for Special Actions, Rules 3(a) through 3(c). See also Rule 8(f), Ariz.R.Civ.P., regarding the construction of pleadings.
[6] See Rule 31(a)(1), Ariz.R.Sup.Ct., which states that the bar may sue and be sued, contract, buy and sell, do marketing, etc..
[7] See Gideon v. Wainwright, 372 U.S. 335 (1963) and Powell v. Alabama, 287 U.S. 45, 68, (1932).
[8] See In the Matter of Petition to Amend Rule 31, Ariz. R. Sup. Ct. and To Add Rule 32 and Rules 76 - 80, Ariz. R. Sup. Ct.
[9] In the interest of judicial economy one typewritten opinion can address them both, as can a trial of the factual issues raised.
[10] Damages caused by the bar’s attacks on non-bar member competitors expended in their efforts at self-preservation.
[11] The costs and expenses referred to are, at minimum, the hard costs lost, due to this action and, at maximum, the time lost in having to protect something which should not have to be protected, namely, the right to work. See Ariz. Cont. Art. 25.