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Moses Shepard

3926 North 13 Place

Phoenix, Arizona

 

IN THE SUPREME COURT

OF THE STATE OF ARIZONA

 

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.