3926 North 13th Place
Phoenix, Arizona 85014
Herb Encinas d/b/a Moon Valley Builders,
Aida C. Suarez,
Case No.: CV 99-018701
MOTION FOR DISQUALIFICATION
OF JUDGE EDWARD O. BURKE FOR
LACK OF IMPARTIALITY PURSUANT
TO JUDICIAL ETHICS RULE 81, CANONS
1-5, CODE OF JUDICIAL CONDUCT,
RULES OF THE ARIZONA SUPREME COURT, AND, IN THE ALTERNATIVE,
MOTION FOR CHANGE OF VENUE
(Judge William O. Burke)
Moses Shepard moves Judge Edward O. Burke (“Burke”) to reverse his order dated August 26, 2002 denying the motion to disqualify Judge Robert D. Myers (“Myers”) because Burke is prohibited from ruling with regards to a cause about which his impartiality might reasonably be questioned for the very same reasons provided in the motion to disqualify Myers, incorporated herein by this reference.
Burke must therefore, of necessity, reverse his order, and disqualify himself, or forward this motion to a non-superior court and/or non-bar member decision maker or body, for proper its adjudication for the following below enumerated reasons:
1. Burke’s Order is saying the supreme law prohibits Myers from following his own ethics rules. As Senator Sam Erving put it during Watergate, “I’m just a country lawyer, but that don’t sound right to me.” It is also worth noting that the U.S. Constitution does not say that only lawyers may serve on the Supreme Court. The drafters did not suffer from an overly inflated opinion of the legal profession, even though there were quite a few lawyers among them. The same is true of the pre-bar Arizona Constitution. Why then has Burke settled on a technical, and not a substantive issue, especially when he knows full well that he can easily violate the current constitution and do so with impunity? Bias?
2. Burke says all superior court judges must be admitted to practice law pursuant to Article 6, Section 22 of the Arizona Constitution. In other words, said judges must be a member of the bar.
3. Rule 31(c)3, R.A.S.C. states that to be admitted to the bar one must take and subscribe an oath to support the U.S. and Arizona constitutions and the laws of Arizona (not merely the constitutions).
4. Rule 81, R.A.S.C., at its terminology sub-section, following its preamble, states that “laws” denotes court rules, among many other things, not merely this or that constitutional provision.
5. Canon 3E is just such a court rule, specifically, a part of Rule 81, R.A.S.C.. Canon 3E mandates that a judge shall disqualify himself sua sponte (on his own initiative). The preamble states that the word shall in a Canon is intended to impose binding obligations that result in disciplinary action if violated. Burke is therefore expecting or requiring Myers to imperil himself with an ethical violation.
6. This case is therefore at an impasse. Burke can either uphold good faith, reason, and common sense or put Arizona law into further disrepute by using his office and the violence associated with the execution of his orders to convene a kangaroo court. In that event, if Myers does not disqualify himself over the UPL issue sua sponte (despite Burke’s opinion), and Myers does not dismiss this frivolous case (thereby mooting the UPL issue) because, there was never any meeting of the minds and, thus, no contract (agreement) on the contract term upon which the opposition originally sued (among a host of other reasons presented to Mangum), this case cannot proceed any further until the UPL issue is properly adjudicated because I can recognize a kangaroo court when I see one and I see one right now. There is an obvious conflict of interest and if it cannot be resolved because of a myriad of political and “legal” “reasons,” then there can be no “fair” or “just” trial. Only a kangaroo court can be convened.
7. Will Burke do the right thing? If he feels that he cannot and there is no provision in his laws to resolve an obvious conflict (his Canons prohibit biased decisions and the constitution “prohibits” non-bar member superior court judges) then I move for the “extension, modification or reversal of existing law” pursuant to Rule 11(a), Arizona Rules of Civil Procedure. It’s time that precedent was set in order to avoid court-supported fraud or malfeasance over this issue, or even the “appearance of impropriety,” pursuant to Canon 2. This Court’s indulgence in the truth and its studious review of the entire purpose for its judicial ethics rules is therefore urged. Consequently, the Preamble to the same is incorporated herein by this reference and I would ask Burke and Myers to re-visit their ethics rules in their entirety.
If Burke claims that he lacks the legal authority to disqualify himself and must therefore defer to another decision maker, he is moved to forward this motion to the appropriate venue (just as the motion to disqualify Myers was forwarded to him), and to further enact whatever provisions which may presently exist stating how conflicts of law such as those enumerated herein are to be resolved fairly.
On the one hand, Burke states he is “prohibited” from granting the relief requested because the Arizona Constitution states a Superior Court Judge shall be a bar member. On the other hand:
1. Article 6 of the Arizona Constitution, Section 28, states: “No justice or judge of any court of record shall practice law during his continuance in office” making Section 22, requiring that said judge be admitted to practice law moot and a nullity. In essence, bar membership means absolutely nothing.
2. Judicial Canon 4G states: “Practice of Law. A judge shall not practice law ...” [emphasis added] so, again, Article 6, Section 22 of the Arizona Constitution is moot and a nullity. In light of these facts, we will not ask Burke if he believes Myers, or his own, mere ability to practice law is a substantive issue here because, obviously, it is not. Burke should therefore disregard the Arizona Constitution just as Judge Mangum disregarded Rule 31(c)3, R.A.S.C., in the furtherance of justice.
3. There was no bar when the Arizona Constitution was first written so pre-bar judges did not need to be “admitted to practice law” and yet their decisions are still considered an “authority” resulting in “precedent” lending even further support to the fact that bar membership is not a substantive issue.
4. Judicial Canon 3E(1) states: “Disqualification. (1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned ...” [emphasis added]. We will not embarrass Burke, or insult his intelligence, by asking him if he believes Myers, or his own, impartiality regarding UPL, cannot reasonably be questioned because, obviously, it can.
5. Smith v. Smith, 115 Ariz. 299, 303 564 P.2d 1266 (App.1977) states: “The Arizona Court of Appeals recognized, ‘the bias and prejudice necessary to disqualify a judge must arise from an extra-judicial source and not from what the judge has done in his participation in the case. U.S. v Grinnel Corp. 384 U.S. 563 … (1966).’” We will not ask Burke if he believes the State Bar is extra-judicial, because, obviously, the State Bar is judicial given that it is, ostensibly, filled with “officers of the court.” This, however, presents another contradiction because the members of the pretended “bar” pretend to be a private organization.
6. A.R.S. 38-503(B) states: “Conflict of interest. Any public officer or employee who has, or whose relative has, a substantial interest in any decision of a public agency shall make known such interest in the official records of such public agency and shall refrain from participating in any manner as an officer or employee in such decision.” We will not ask Burke if he believes Meyers or himself (both bar members, public officers, and employees) have a conflict of interest, because, obviously, they do. And, needless to say, the judicial branch is a public agency employing public servants (yourselves).
7. Art. 2, Sec. 11 of the Ariz. Const. states, “Justice [not injustice] in all cases shall be administered openly, and without unnecessary delay.” Art. 2, Sec. 4 of the Ariz. Const. states, “No person shall be deprived of life, liberty, or property without due process of law.” Due process means, above all else, fundamental fairness and substantial justice (Black’s Law Dictionary). Therefore, there can be no fair, just process until the UPL issue is resolved in a manner consistent with Rule 1, A.R.C.P..
By stating that the Arizona Constitution prohibits a non-bar member from making decisions in the superior court Burke has cited a circular reference that is, by its very nature, irresolvable because a judge’s ethics rules prohibit him from ruling on issues about which his impartiality might reasonably be questioned. I question Burke’s impartiality regarding any anti-UPL cause just as I question any bar member’s impartiality with regards to UPL [sic] given the long standing anti-UPL propaganda issued by individuals pretending to be an alleged “bar.” Also, the very fact that Burke ruled on the motion to disqualify Myers, and did not strike it, indicates that he did not consider it to be frivolous nor did Burke consider it “legally defective” consistent with his own anti-UPL position. Therefore, the only solution to this issue is to take this decision outside of the superior court to decision makers acceptable to all parties concerned, hence the need for a motion for change of venue given Burke’s current position.
There exists an intense emotional bias and an equally extreme intellectual hatred on the part of many bar members against non-bar members as demonstrated by, 1) the Court of Appeals 1/15/02 anti-UPL opinion that dealt, not with any measure of Shepard’s competence, but, instead, that focused solely on his non-bar affiliation, 2) the bar’s creation of a mandatory bar to begin with, 3) their attempts to destroy UPL through the legislature when anti-UPL statutes were retired, and now, 4) their recent petition to destroy any remaining UPL by modifying the rules of the supreme court despite the huge public outcry found within responsive comments in the records of that court, most of which were not my own. Indeed, in comparison, my comments represent a very small portion. The record is very clear. Even though the people want to be free to choose who will practice law on their behalf, instead of being subjected to “the lawyer protection racket” at the barrel of a gun, the pretended “bar” still insists on forcing their “protection” upon people. Why? Art. 2, Sec. 2 of the Ariz. Const. states, “all political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.” Is that clause from the “supreme law” just another of the many political lies found within “the system” or is the very existence of the pretended “bar” the actual lie?
If UPL-ers were so incompetent then they would not be able to produce the professional pleadings that now exist within the Supreme Court case file in the response to the Bar’s petition to destroy UPL. Judge Burke is encouraged to examine that file for himself before the Supreme Court has it destroyed. Conversely, if the opposition’s two lawyers are, by definition, competent, merely by their attainment of bar membership, then they would not have been so incompetent as to “assist UPL” by responding to it for such a long period of time, as they did, instead of simply moving to strike it.
If Burke disagrees with any of the above statements of fact and/or legal conclusions he is asked to stipulate to the same in any responsive minute entry. Finally, for the record, I never filed a pleading pursuant to the change of judge rules with regards to the motion to disqualify Myers so, why that motion was forwarded to Burke I do not know. I was asking Myers to disqualify himself pursuant to Canon 3E in anticipation of his possible failure to do so sua sponte. This is because, clearly, the inherent contradictions within the laws of the present status quo creates a monumental due process problem and my experience in this case tells me I cannot rely on Arizona judges to necessarily follow their own rules. It is therefore with great reservation and regret that I ask its judges to do that which should be done, or should have been done, sua sponte. I did not create these laws. I merely read, then comment on them.
“It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.”
-- Thomas Jefferson
Respectfully Submitted this 23rd day of September, 2002.
3926 North 13 Place
ORIGINAL of the foregoing filed with the Clerk of this Court this 23rd day of September, 2002, and a COPY mailed and or hand-delivered to:
Honorable Judge Edward O. Burke
125 West Washington, Suite 002
Phoenix, Arizona 85003
Honorable Judge Robert D. Myers
101 West Jefferson, 4th Fl.
Phoenix, Arizona 85003
G. Eagleburger, att’y.
2999 N. 44 St., # 300
Phoenix, Arizona 85018
I, the Honorable Judge Burke presiding, state the following facts upon my personal knowledge.
1. As a bar member, a judge’s impartiality can reasonably be questioned when it comes to hearing any anti-UPL cause pursuant to that judge’s ethics rules because there exists a conflict of interest, etc..
2. There are no facts presently before me upon which I can reasonably require a Superior Court Judge to violate his or her own ethics rules, whether that by Judge Myers or myself.
3. By focusing on the practice of law I am raising a moot procedural hurdle that impedes the cause of justice because all of the pertinent facts and authorities demonstrate that the practice of law is not a substantive issue here and is, in fact, essentially moot, and a nullity, because the Arizona Constitution and a judge's ethics rules prohibit him or her from practicing law.
4. If I focus on the practice of law, a moot constitutional provision, I am not acting in good faith because doing so is not factually consistent with my own ethics rules requiring impartial judges.
5. Without an impartial judge there can be no justice.
6. Without justice there cannot be fair, legal process, only a kangaroo court.
7. A kangaroo court is intolerable to this Court. I will not order an judge to convene such a “court.”
8. I can rule any way that I want to, with impunity, because the Preamble to my judicial ethics rules give me complete immunity from any civil or criminal liability. I still choose to do the right thing.
IT IS ORDERED reversing my previous Order. All parties will be contacted regarding the disposition of this matter in the future unless Judge Myers has not already dismissed this case sua sponte for lack of any justiciable controversy, as alleged by the defendants, effectively mooting the UPL issue.
signed, Hon. Edward O. Burke, Presiding Judge
 I file this motion because, ostensibly, Judge Burke views me as a real party in interest in so far as the issue of the “unauthorized practice of law” (UPL)[sic] is concerned because he ruled on my motion to disqualify Judge Myers, instead of striking it, on the grounds that is was, ostensibly, “a product of UPL.” How Judge Burke can treat me as a real party in interest I do not know, given the fact that, more often than not, bar members do not consider non-lawyers to have a lawful interest to practice law, unlike Judge Mangum, who accepted all my paperwork and would have let me defend at trial. I also file this motion alone because I don’t want my mom to be punished for by boldness at declaring that which is obvious, correct and true.
 Even though Cannon 3E gives him that authority and even states that he shall do so, on his own initiative. He was therefore prohibited from ruling on the motion to disqualify Myers in the first place.
 Even if this means reporting himself to the appropriate authority pursuant to Canon 3D for knowingly violating his ethics rules. For example, Article 6.1, Commission of Judicial Conduct states, at Section 2: “A judge is disqualified from acting as a judge ... while there is pending ... a recommendation to the supreme court by the commission on judicial conduct for his suspension, removal or retirement.” Section 3 states: “On recommendation of the commission on judicial conduct, or on its own motion, the supreme court may suspend a judge from office without salary when, … he is found guilty of a crime punishable as a felony under Arizona or federal law or of any other crime that involves moral turpitude under such law. If his conviction is reversed the suspension terminates, and he shall be paid his salary for the period of suspension. If he is suspended and his conviction becomes final the supreme court shall remove him from office.” It should go without saying that, by violating his own ethics rules, a judge is demonstrating moral turpitude, absent any actual criminal or civil liability.
 “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) (Emphasis added). 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. [Footnote 2] (Emphasis added). Thus, as a corporation, the “bar” is a mental conception as real as Santa Clause.
 Therefore, either a judge’s ethics rules are moot / unconstitutional or Art. 6, Sec. 22 of the Ariz. Const. is moot / a nullity.
 On 4-8-02 Burke stated, in open court, that he agreed with bar member Eagleburger that Shepard should not be allowed to practice law contrary to Mangum’s position that he should be granted full powers to do so, whether verbally, or in writing, so Burke’s lack of impartiality over any anti-UPL cause for want of neutrality is already established by this case’s history.
 In addition to circumventing and/or totally ignoring every single substantive issue that was raised, as if simply non-existent.
 Burned at the stake, as it were, as UPL heresy.
 In direct contravention of Rule 42, E.R. 5.5 (b), R.A.S.C., and a host of other ethics rules. See the 3/18/02 Motion to Have Plaintiff’s Counsel Removed, in its entirety, filed under CV1999-018701, a “classic” case study in bar member fraud.
 See our Proposed Order attached hereto as Exhibit 1.
 However much obviously obscene, to the cause of justice that this may be, I can force myself to live with the idea of never getting paid a penny for the three years of work that I have done in this case on my mother’s behalf, if it means keeping her from losing her home, or any part of it. I cannot, however, live with the idea of her losing her home, or any part of it, because, when I brought her to Arizona I swore a solemn oath that I would defend and protect her, and defend her I have. If have defended her poorly then Judge Mangum must be incompetent because he disagrees or he would not have stuck fast to his position that none of my paperwork should ever be stricken. If he is in error on this point then his bar membership does not guarantee any level of competence. Or is it that he is competent and it is bar members that do have a problem with UPL that are, in point of fact, the ones that are actually incompetent because they cannot see that which is the obvious: Bar membership proves nothing except for the fact that one paid their tuition and passed a test that any non-lawyer can study for.
 Without standing, there is no justiciable controversy and no action may be maintained, U.S. v. I.C.C., 337 U.S. 426 (1949).