Petition — Tracy v. Golston

¢

v.

RODGER A. GOLSTON, ET AL,

FOR LEAVE TO FILE PETITION FOR

IN THE

Supreme Court of the United States

October Term, 1977

RICHARD T. TRACY, SR.

Petitioner,

v.

RODGER A. GOLSTON, ET AL,

Respondents.

MOTION FOR LEAVE TO FILE PETITION FOR

WRIT OF CERTIORARI AND PETITION FOR

WRIT OF CERTIORARI

TABLE OF CONTENTS

Independence and Integrity of the Judiciary ........

Sovereign Power Was Present, the Accused Was Not

The Evidence and Standard of Proof as Improper

as the Body and Procedures — ..........:sessssesseeseeeeeees

REIS cneccsereresescnecesennnenccssonsensscoseneessoqnocsees

APPENDIX A - Federal District Court Judgment No.

AY FP BBR GUE ccccccecccstnstipnteptonscngnpepemmetpennapaenences

APPENDIX B - Notice of Appeal, U. S. Court of

DOMED crrcrcccececsssevccccrcccercnsvescrsscccosssosnosesnonsnosseaseesse

APPENDIX C - Pronouncement of Judgment-Findings

APPENDIX D - Judgment and Conclusions and Find-

ing, Maricopa County Superior Court No. 333371 ....

APPENDIX E - Order, Jurisdiction Declined Arizona

Supreme Court No. 12760 ...........0cccceeccesssseeeeeenneeeeees

APPENDIX F - Order of Transfer Arizona Supreme

Grumt DEe. BIBGD cccrscecswscressrssemnensessenssserseemssnsssenessssese

APPENDIX G - Motion for Rehearing-Injunctive Re-

ee

TABLE OF AUTHORITIES

Cases: | Page

Application of Levine,

FT Agie. OB, 397 P.28 BOB orceccesccccscccrcccccccccseceesonce 30

Arizona Press Club, Inc. v. Arizona Board of Tax

Appeals, 113 Ariz. 545, 5$8 P.2d 697 — ...........0000 33

Arlington Heights v. Metro Housing Corp.,

__ US. __, SOL. Ed. 24 450,975S.Cr. _..... 21

Azar v. Conley,

456 F.2d 1382 (6th Cir. 1972) ....cccccccceccccceseceeeees 21

Bishop v. Wood,

Te 17

Boles v. Fox,

SCD eeliietrecctnicsecnenevsenctnesnsindnetitiiinn 21

Boline v. United Farm Workers,

494 F.2d 541 (9th Cir. 1974) oo... ccccccccccccccceeeenees 21

1 v. State Bar,

27 Ariz. 47, 550 P.2d 1089 ........................ a 32

Chambers v. Central Committee,

RRS Foe eae ere) ™ 34

Davies v. Osborne,

14 Ariz. 185, 125 P. 884(1912) ............................ 31

Dombrowski v. Pfister,

ED cncitstninchtintncnenesmecctamatblbadientias 21,26

Gibson v. Berryhill,

411 U.S. 564, 93 S. Ct. 1689, 36 L. Ed. 2d 488 .... 23,26

Haines v. Kerner, :

404 U.S. $19 (1972) 2.2.00... -cceceeeee beadithastie 21

Case, '

2 DC. 11 409, 1 L. Ed. 436 (U.S. 1792) __............ 31

In re ,

380 R.I. , 44N.E.247 une 33

In re McLaughlin,

153 Tex. 183, 165 S.W.2d 805, dismissed,

343 U.S. 859, 75 S. Cr. 83, 99 L. 677 ...2....... 33,34

TABLE OF AUTHORITIES

Cases: Page

Johnson v. Collins,

11 Ariz. App. 327, 464 P.2d 647 — ......2.cccecceeseeeeens 30

Lownschuss v. Kane,

ee a eee 21

McCall v. Cull,

EK FEE I Se 15

McNeese v. Board of Education,

373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622

A Sa Ee Se TENE SIT we 22

Monroe v. Pape,

i A ATE ETC aS Ee RN 22,24

Mt. “7 v. Doyle,

__, SOL. Ed. 2d 471,97S.Cr. 21

Paul v. v. oak,

gt oe 5,17

v. Sinderman,

TTT ID ee eR 20,22,24

v. Board of Education,

EE I 20,21

v. Philadelphia Psychiatric Center,

SOSH. Gam. SED CIIIG nn. nnn enerrccrcceeeccoencevcees 21

v. Roth,

ee 20,22,24

Schware v. Board of Bar Examiners

353 U.S. 232, 77 S. Ct. 753, 1 L. Ed. 2d 796 .......... 26,30

State v. A.M. .

203 of Phoenix Court .................... 34

Steffel v. Thompson,

415 U.S. 472, 94S. Ct. 1222, 39 L. Ed. 2d 522 ..... 23

v.

~~ SHO (Sth Cir. 1973) ne.cenncccccccccccseseeeeenene 24

US. v. Diebold,

369 U.S. 654 . i eustitieasnidees 21

TABLE OF AUTHORITIES

Cases: Page

Vazzano v. Superior Court,

106 Ariz. 542, 479 P.2d 685 .........cccccceeseeeeeresenees 30

Wong Yen Suing v. McGrath,

339 U.S. 33, 70 S. Ct. 445, 95 L. Ed. 616 ............ 29

Wood v. Casualty,

332 F. Supp. 295 DX. La. 897%) sdosmmnnavnndanapeseages 21

Yeck Wo v.

118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220(1885). 5,29

SED GD, BF csatesectcnssccassarscsnsitescemsssmncesinscesenssniansiis 27

Statutes, Rules and Constitutions

Arizona Revised

©. GRRE, connscmesneeessemenenmncentdlinhiiindmaie 16

9 qa = 16

© GE cennansssssecenmmmmennnenisenenninenmepaegas 15

© FD ceccececsestpreisssnnetpuetsnteyetntatinscdtandeiantsibs 15

§ 38-431, may. 1974 Revision of the Open Meet-

ID ccecssccasecesocnensenassvanssnsnsseenapennesggpepest 33

© SEED. censcessssssssssnacesvennsemecssemecssnsceaggmgapenges 15

© TO hesecrennisnccsrsitictatinntiiemmmennnccnion 15

GS SB4BLOS ..0..ccccccreeeceeneeeceneenes 15

§ 38-431.07, Arizona Open Meeting Laws ..... 16

D TD cess 33

A.R.S. 1, Arizona Constitution, Article 6,

§ 25 . 26,31

§ 32 13

§ 35 32

5 36 13

A.R.S. 1, Arizona Constitution, Article 6.1 ............ 32

A.R.S. 16, Arizona Rules of Civil Procedure,

Rule 56(c) 17

ARS.17 . - 16

Rules 4 and 6 9

vi

TABLE OF AUTHORITIES

Statutes, Rules and Constitutions: Page

Federal Rules of Civil Procedure,

EES ea SR ae 57 UY ae ae Pe 21

ET a a ee eR 24

I i etal a tccrtmertienntnactiiaatticl 25

i 24

Phoenix City Charter, Chapter 8,

gaan she aR dR ae. SII 14

Phoenix City Ordinance,

gee Rn 14,31

A Tne MY We 19,20

TTC TSS aN ee 8

II A te a tc a 8

28 U.S.C. 1291 ahataieatenetepsetenstanieinninilnntiil ne 9

TS ee eee | 8

I, i ae a 9,18

I 9,18

EE Ee ee ee ee 8

SETTER EEE eR: vane 7 25

Is i u

Be ID OD GD ectccccccccosisccccsococccsnccesiumbentesins 8,18

nn 2 sibasenentadshinanieanaiadiadl 9,24

ETE. ATLL NTR se SNe SNE TR 8

i i 9

Ee 8,18

United States Constitution,

Ast AMOMGMENE ..............ccccceececeeeeeeeeeeeceeeeeeee 20,21,25

FE ED ccctiteccteresettteitttetibe 25

a ee 25,29

TABLE OF AUTHORITIES

Other Authorities: Page

Canon One, Judicial Code of Conduct — ....:.......2:.000++ 13

RINE SES EE SaaS Ce ene 34,35

Canon Five, Judicial Code of Conduct — ..........sseeseeees 25

Declaration of Independence _ ..............sccsseeseeeeeneeees 27,29

IN THE

Supreme Court of the United States

October Term, 1977

RICHARD T. TRACY, SR.

Petitioner,

v.

RODGER A. GOLSTON, ET AL,

Respondents.

MOTION FOR LEAVE TO FILE PETITION FOR

WRIT OF CERTIORARI AND PETITION FOR

WRIT OF CERTIORARI

Petitioner moves this Court to accept jurisdiction of this,

his Petition for Writ of Certiorari or an Alternative Writ of

Mandamus or Prohibition under this Court’s appellate and

supervisory powers. Petitioner, an incumbent City Court

Judge of the City of Phoenix, Arizona, has been subjected

to invidious discrimination by a usurping city administra-

tive board, dominated by the state judiciary in the person

of the Chief Justice of the Arizona Supreme Court, other

judges and officers of the County and State Bar Associa-

tions and three possibly uninformed laymen in retaliation

for exercise of First Amendment rights.

Such board exceeded their jurisdiction, usurped the

powers of elected city officials and acted contrary to the

laws imposed upon the states by the First and Fourteenth

Amendments of the United States Constitution.

Respondents have been shielded from responding for

their acts by both State and Federal Judiciary who, in so

doing, have departed from the accepted and usual course

of judicial proceedings, this apparent conduct having been

sanctioned by both the Ninth Circuit Court of Appeals and

the Arizona Supreme Court.

Respectfully submitted,

RICHARD T. TRACY, SR. Attorney

Petitioner Pro Se

7437 North 7th Street

Phoenix, Arizona 85020

Telephone 602-943-7700

IN THE

Supreme Court of the United States

October Term, 1977

IN THE MATTER OF

RICHARD T. TRACY, SR.,

Judge of the City Court,

Phoenix, Arizona,

Petitioner,

AGAINST

RODGER A. GOLDSTON, JOHN WENTZ, ANTHONY H...

MASON, ROBERT C. BROOMFIELD, STANFORD LERCH,

JAMES CAMERON, JAMES O. WHITE, CHARLES LEE

WHITECRAFT, ROBERT J. DONOHOE, MARGARET P.

HANCE, WILLIAM DONAHUE, JOY W. CARTER,

ROSENDO GUTIERREZ, KENNETH O’DELL, WILLIAM

P. DIXSON, RALPH SMITH, RICHARD GARCIA, and the

City of Phoenix, Arizona, a Municipal Corporation,

Respondents.

PETITION FOR WRIT OF CERTIORARI BEFORE

JUDGMENT TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT AND

THE ARIZONA SUPREME COURT

IN THE

Supreme Court of the United States

October Term, 1977

RICHARD T. TRACY, SR.,

Judge of the City Court, Phoenix, Az.,

Petitioner,

v.

RODGER A. GOLSTON, et al,

Respondents.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Case No. 77-2034

AND

WILLIAM P. DIXON, et al

ARIZONA SUPREME COURT

Case No. 12760 and Case No. 13195

Petitioner prays that Writ of Certiorari be issued to the

United States Court of Appeals for the Ninth Circuit to

review before judgment is issued in that Court. The Judg-

ment of the District Court which denied Petitioner relief

due to a fraudent State Judgment finally determined by

the Arizona Supreme Court. Or for this Court to issue an

alternative Writ of Mandamus or Prohibition in regard to

the United States Court of Appeals for the Ninth Cir-

cuit’s Order of June 8, 1977, denying injunctive relief to

stay proceedings in the Arizona Supreme Court, on a Judg-

ment which purports to pertain to Civil Rights Claims

which were not filed or adjudicated in the State Court and

on its face is void.

The fraudulent Superior Court Judgment allowed to stand

when the Arizona Supreme Court refused jurisdiction in

Special Action No. 12760 on July 20, 1976, was in des-

peration appealed to the Arizona Court of Appeals a pos-

sible impartial State tribunal. Subsequent to the District

Court having dismissed or abstained in the federal action,

the Chief Justice of the Arizona Supreme Court, an indivi-

dual defendant in the Federal Suit, transferred that appeal

to the Arizona Supreme Court for immediate hearing and

then disqualified himself.

The United States Court of Appeals for the Ninth Cir-.

cuit has sanctioned the gross departure from applicable

decisions of this Court commencing with Yeck Wo v. Hop-

kins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1885)

and from accepted and usual course of judicial proceedings

in an effort to conceal judicial corruption, so as to call for

an exercise of this Court’s power of supervision.

Petitioner’s apprehension that he will not receive a fair

hearing in the lower tribunals is based on prior unortho-

dox decisions and procedures with final judgment being

awarded Respondent Defendants without evidence. Respon-

dents, as in the past, advance sham defenses such as cit-

ing Paul v. Davis, 424 U.S. 693, and this Court’s require-

ment of a “tangible interest, such as employment,” re-

quired to demonstrate liberty or property interest, know-

ing Petitioner was dismissed from his employment as City

Judge and prevented from engaging in his profession by

vicious, false charges manufactured by Respondents. In the

State Case, they argue that an “ordinance is not a law.”

That an official body created by law, exercising powers in

excess of all jurisdiction of the delegating authority is merely

a group of “civil minded individuals,” the same definition

could apply to a lynch mob, the facts will reveal procedures

employed would be appropriate for the latter, not an offi-

cial body composed of judges, lawyers and learned laymen.

OPINIONS BELOW

None of the lower Court opinions has been reported.

The Judgment of the District Court, rendered by the

Senior Judge, the Honorable Martin Pence, assigned to the

Motions by the Honorable Walter E. Craig, Chief Judge

of the Federal District Court for Arizona, was entered on

April 22, 1977 and is reproduced as Appendix A.

The Notice of Appeal, which includes some of the

grounds for post judgment relief, there being no judge

to hear or consider post judgment relief, was filed on

April 25, 1977 and is reproduced herein as Appendix B.

The pronouncement of judgment in which the Senior

Judge dismissed the Federal Claims and directed Petitioner

to exhaust solely state administrative remedies, which had

already been denied in the State Court, is reproduced as

Appendix C.

The Judgment in the State Court, in a class action

which sought to review and void by Special Action (Writ

of Certiorari) Quo Warranto and violation of Open Mect-

ing Law, the prior proceedings by the Judicial Selection

Board and City Council, summarily dismissed with preju-

dice and Conclusions of Law and Fact worded to include

claims and parties not presented, is reproduced as Appen-

dix D.

The Judgment of the Arizona Supreme Court in Case

No. 12760 refusing jurisdiction to review by Special Ac-

tion (Writ of Certiorari) the judgment of the Superior

Court in Case No. C 333371 is reproduced as Appendix

E.

The Judgment of the Superior Court was crtered on

both July 7, 1976 and on July 30, 1976, Notice of Ap-

peal, which recited the first date, was filed on August 3,

1976 and held lawful regardless of the two dates for an

identical judgment. That appeal case No. 13195, against

the City of Phoenix, already briefed, was pending in the

Arizona Court of Appeals until the day following the

Senior Judge’s Pronouncement of Judgment. in the Dis-

trict Court, at which time it was transferred to the Ari-

zona Supreme Court. The notification of transfer is repro-

duced as Appendix F. This case rests upon the same rec-

ord that was before the Supreme Court of Arizona when

it refused jurisdiction and affirmed the Trial Court on

July 20, 1976. Case No. 12760 (Appendix E).

The order and timely Motion for Rehearing by the

Court in Banc of the denial for injunctive relief by the

U. S. Court of Appeals to stay the Arizona Supreme

Court deciding the State Case, is reproduced as Appen-

dix G. |

No public vote was taken by City Council on Peti-

tioner’s request for a hearing and all discussion and con-

sideration of Petitioner’s removal on February 25 and

March 2, 1976 took place in closed meetings.

JURISDICTION

This Court’s jurisdiction is found in 28 U.S.C. 12541),

28 U.S.C. 1257(3), 28 U.S.C. 1291(3), 28 U.S.C. 1651 and

42 U.S.C. 1984. In enacting the latter section, it was the

apparent intent of the Congress in specifically designating

review of Civil Rights Chapter matters by the United

States Supreme Court to assure the availability of a neutral

and detached forum when, as in the case at hand, the lo-

cal Federal and State courts are not available or impartial

to process claims under 42 U.S.C.S. 1981 to 1986 inclu-

sive and 42 U.S.C. 1988. This petition for certiorari is

filed within 90 days after denial of a timely motion for

rehearing by the Ninth Circuit Court of Appeals in banc.

STATEMENT AS TO JURISDICTION

All proceedings to date, state and federal, conflict with

well established decisions of this Court and so depart from

the accepted and usual course of judicial proceedings,

which the Ninth Circuit of the United States Court of

Appeals has thus far sanctioned. Sham and frivolous de-

fenses asserted by defendants therein lead Petitioner to

believe that irreparable damage will be suffered in much

the same manner as in prior proceedings. The indepen-

dence and integrity of the judiciary and fraudulent acts

perpetuated to date on Petitioner calls for the exercise of

this Court’s power of supervision.

The State Action brought to void administrative proceed-

ings on several grounds was improperly dismissed without

trial or hearing and final judgment worded in such a man-

ner as to create an apparent bar to Petitioner’s proceeding

upon civil rights violations against the officials. This Court

has the power to look to the record of State proceedings

and has long give Section 28 U.S.C.S. 1291 a practical

ing whether further appellace review is possible within the

state.

The presence of the Chief Justice of the Arizona

Supreme Court as ranking member of the City of Phoenix

Judicial Selection Board, refusal of the Arizona Supreme

Court to grant jurisdiction on the very same case on July

20, 1976, so prejudiced Petitioner’s State Case as to deny

future appellate review. The Supreme Court or, if re-

manded, a Superior Court Judge is not likely to render

sons he influenced to respond in damages or displace the

successor in office for over a year. There was no jurisdic-

tion in the State Court to adjudicate Petitioner’s Civil

Rights Claims in Superior Court Case No. 333371. Filed

as a Special Action, A.R.S. 17 under Rule 4 and 6, the

pertinent part reads:

“If the action was brought to review a determina-

tion or order of a body or officer, the judgment

may annul or confirm the determination in whole

or in part, or modify it, and may direct, order or

prohibit specified action by the defendant.”

Brought to review the procedures employed by City

Council and the Judicial Selection Board, review was de-

ner as demonstrated by the Bodies sought to be reviewed.

The Board and Council exceeded their jurisdiction as did

the Superior Court. The action was filed in Federal Dis-

trict Court under 28 U.S.C. 1343, 1331 and 42 U.S.C.

1983 and 1986 indusive and 28 U.S.C. 1988 after almost

a year of harassment in State Courts.

QUESTIONS PRESENTED

It is difficult to conceive of any applicable constitutional

or administrative law question not presented by reasons of

the below proceedings. The City of Phoenix Judicial Selec-

tion Board’s exercise of absolute power over City Council

and Petitioner has caused legal error to be compounded in

much the same manner as the “Watergate Affair.” In sum-

mary, the principal questions are:

Is a member of the judiciary, who follows the mandate

of the Judicial Code and oath of office and discreetly of-

fers constructive criticism of an unfair and inefficient justice

system, entitled to the Protection of the First, Fifth and

Fourteenth Amendments of the United States Constitution?

Is an Attorney-Judge deprived of liberty and property

when a board, composed of the highest ranking state judi-

cial officer, other judges and lawyers of an integrated bar

association, improperly intervene and prevent his reappoint-

ment to office and in so doing, issue false charges which

damages his standing with the City Council and public as

a judicial officer as well as injures his reputation in the

profession and courts where he must practice his trade as

an attorney?

Does the doctrine of immunity for judicial acts limit an

investigative body to consider only acts of misconduct of

an incumbent; can the incumbent be denied the right of

notice and confrontation; has a superior judicial officer a

right to prevent an incumbent from being considered by

the electorate or the appointing body without legal pro-

cess.

Whether a lawyer judge incumbent of an office until

removed for “cause” by law can be removed without

notice or hearing when falsely charged, with being a “racist”

“unfair to poor and other minorities”, ‘superimposing him-

self as defense and prosecution”, “directing a verdict of

guilty in a criminal trial and not letting the matter go to a

jury” and performing his duties in an “unsatisfactory man-

ner,” merely by the investigative body waiting until his

fixed term expires?

Whether the District Court abused its discretion and ex-

ceeded its jurisdiction in disregarding the challenge to the

array of jurists under 28 U.S.C. 455 by assigning the

hearings on Motions for Summary Judgment to a Senior

Judge rather than grant or deny the motion and allow an

opportunity for the filing of an Affidavit under 28 U.S.C.S.

144, Bias and Prejudice?

Did the Senior Judge have the power to dismiss Federal

Civil Rights Claims supported by uncontrovertible evidence,

on the basis that Petitioner exhaust his state remedies,

limited at that time to an already denied administrative

review, refused by not only the Superior Court, but also

the Arizona Supreme Court. Those proceedings, alleged to

have been a nullity, the Senior Judge understanding the

State Courts could not be impartial, the burden of over-

turning an improper judgment, as well as other obstacles

and at best would leave Petitioner where he took up the

gauntlet.

Was there an abuse of discretion by the United States

Court of Appeal in failing to invoke its equity powers

when Petitioner demonstrated in the emergency motion

of May 16, 1977 that the District Court granted Sum-

mary Judgment denying federal claims, requiring Petitioner

to exhaust, inadequate state remedies ignoring allegations

of conspiracy supported by evidence that the following

day a defendant in the federal case transferred from the

Arizona Court of Appeals to the Arizona Supreme Court

the state appeal on a void judgment which purported to

decide the federal claims?

THE FACTS AND CASES

1. Plaintiff-Appellant, admitted to the Bar in 1954

after private law practice in Ohio and New York, relo-

cated in Arizona for family health reasons. As a law

clerk, he served the Arizona Supreme Court for one year,

after private law practice, he was appointed a Phoenix

City Court Judge pro tem then to a four year term on

February 14, 1972. The court was in a state of chaos,

unable to function, by example, persuasion, distribution

of legal summaries, facts and figures, he assisted in re-

ducing the great backlog of pending cases, which reduced

new cases, helped implement rules and policies that elim-

inated waste and unequal treatment, particularly a prac-

tice known as “submit and appeal,” whereby a plea dis-

posed of the City Court case and de novo appeal to

Superior Court resulted in mass dismissals or reduction

of charge (Appendix H).

REACTION TO IMPROVEMENT IN THE COURT

2. The City administration dominated by a bi-partisan

conservative group in control of Phoenix City affairs for

twenty five years, preferred the previous system of confu-

sion and double standard. In the Fall of 1973, the City

Manager arranged for an unwarranted grand jury investiga-

tion and the Chief Judge was replaced by Respondent

13

Golston through a committee chaired by the Chief Supe-

mentation of the 1960 Modern Courts Amendment, A.R.S.

1, Arizona Constitution, Article 6, Section 32 and Canon

One, Judicial Code of Conduct to provide an efficient

civil and criminal lower court system, as a member of a

State Bar committee and then by aiding a Special Supreme

Court Legislative Committee. With twice the national

average per capita of judges, most contested criminal

cases were not being processed and civil matters between

one and three thousand dollars handled by arbitration

outside the court system. Petitioner’s efforts to improve

the court, increase communications as a check and bal-

ance, assist in providing certainty in results of litigation

and eliminate corruption brought about a coalition dedi- .

cated to keeping Petitioner in the background and then

seeing to it that he was not reappointed. This was man-

ifested in many ways but most apparent, in the appoint-

ment and acts of Respondent Golston, a young wheeling

dealing prosecutor with no judicial experience, who as-

sumed the Chief Judge position and administrator’s duties

and later became chairman and chief witness for the Judi-

cial Selection Board, formed 90 days before the expira-

tion of Petitioner’s fixed term. ~

THE SEPARATION OF POWERS OF

PHOENIX CITY GOVERNMENT

3. The City Court a “separate and independent branch

of city government” by City Charter, which further pro-

vided that judges would be appointed by City Council for

four year terms and removed only for cause by affirma-

tive vote of two thirds of City Council. No provision is

in

14

made for removal by appointment of a successor or expi-

ration of fixed term. City Charter, Chapter 8, section 3B

(N1)_ The intent clear, to be politically independent, in-

cumbents, prior to expiration of term, would be offered

reappointment or a hearing before the City Council.

The 1975 and last Charter Government dominated City

Council established the Judicial Selection Board with broad

powers in selection of candidates to fill vacancies, with

power over incumbents to “advise the Council regarding

reappointment.”” Under City Ordinance § 8742 the Board

was to hold meetings for the following purpose:

“The board shall, whenever practical, hold public

meetings designed to permit interested parties and

groups to submit and recommend persons for con-

sideration.”

Instead it tried incumbents, never opened candidates’

meetings. The Board, waited until Petitioner’s fixed term

expired, then on February 25, 1976, held an advertised |

public meeting and secret meetings, at which the Chairman, |

NI Chapter 8, Section 1

“There shall be a city Court system as a separate an® |

independent branch of the government of the City of

Phoenix .. .”

Chapter 8, Section 3(a)(b)

“(a) The judges of the City Court shall be appointed by

the Council of the City of Phoenix . . . All subsequent

appointments sball be for four year terms, a vacancy oc-

curring before the expiration of a term shall be filled by

appointment for the remainder of the term.”

“(b) Judges of the City Court may be removed by the

City Council for cause on motion adopted by the af-

firmative vote .f two thirds of the members of the

Council.” Emphasis supplied.

_—_ - —_ - -_- - - d |

15

the City Prosecutor and Chief Public Defender were witnes-

ses. The purpose was to review the judicial performance of

three incumbents, two of whom had requested but were not

permitted to attend any meetings. Having waited until fixed

terms had expired, the Board acted as though they dealt with

vacancies in office, removed two of the incumbents, inter-

viewed applicants and when Petitioner protested and requested

a Council hearing, which had been offered, coerced the City

Council into denying a hearing or de novo appeal. The pres-

tigious Board “threatened to resign en masse if its recom-

mendations weren’t upheld.” Further, the Board, through its

Chairman, issued vicious false charges to the press on March

2, 1976 after reappointing one incumbent and taking suc-

cessors under consideration.

NO VACANCY DUE TO EXPIRATION

; OF FIXED TERM

4. Sections 38-291 and 395(b) A.R.S..and a long line of

cases prevented a vacancy from occurring until the appoint-

ing body had “‘regularly acted,” McCall v. Cull, 51 Ariz. 237,

75 P.2d 696, While Administrative Law Rules and the Open

Meeting Law granted a right to a de novo hearing and A.R.S.

38-431.03.1, provided that upon “demand” by an “appointee

or employee,” “‘the discussion and consideration” of “em-

ployment or appointment” “occur at a public meeting, ””(N2)

A.R.S. 38-431.05 provided: .

N2 Section 39-431.03 ARS.

“A. This article shall not be construed to prevent governing

bodies, upon Jove of Ges tandieds edmstinning ¥ Qneeem,

from holding session for only the following purposes:

1. Discussion or consideration of assignment,

appointment, promotion, demotion, salaries, di or

resignation of a public officer, appointee or ¢

governing body, except that with exception

the salary

officer, appointee or employee demand

Gheaian on eadiiee canis & 6 palit

g

4

J

-

16 17

“All business transacted in any body during a meet- cumbent City Court Judges, Maricopa County, Arizona,

ing or public proceedings held in violation of the Superior Court Case No. C-333371. Such action followed

provisions of this article shall be null and void.” directions of the United States Supreme Court in Pau! ».

After demand upon both Board and Council, such bod- Davis, 424 U.S. 693 and Bishop v. Wood, 426 U.S. 341

ies did meet secretly, voted to remove and replace Petitioner to attempt first to resolve disputes if possible on a local

without notice or hearing of any kind. It was then that level.

extensive press and T.V. coverage with charges against Peti- The Superior Court Judge on June 22, 1976, limited

tioner commenced, inferring he was a “racist”, “unfair to

poor’’, etc., all intended to lose him Council and public

support. Plaintiff appeared at City Council’s weekly meet-

ing on March 9, 1976 and requested a due process hear-

ing, at which time his successor was appointed to a partial

term and he, effective April 5, 1976, was to vacate his

hearing to a sham Motion to Dismiss. In granting Summary

Judgment for Defendant, City of Phoenix and the new

judges on basis of ‘“‘absolute power” of Council and be-

cause the Judicial Selection Board allegedly conformed to

State Constitution’s provision of ‘‘Merit Selection”, which

does not apply to City Court Judges, the Superior Court

office.

mn Judge kept referring to the Chief Justice of the Arizona

PROCEEDINGS IN SUPERIOR COURT Supeme Court being present on the Board. The Formal .-

5. After demand and refusal to prosecute by the At- Judgment and Findings of Fact and Law, however, en-

torney General and County Attorney, Petitioner, on May compassed claims and persons not before the Superior

25, 1976, filed a Class Action form Petition under the fol- Court and made no reference to the Merit Selection Amend-

ment, Arizona Constitution, Article 6, Section 36. The

Court refused to allow witnesses to be called, defendants

presented no verified pleadings, only Petitioner’s evidence

lowing provisions:

(1) Quo Warranto, A.R.S. 12-2043

(2) Mp cya of Arizona Open Meeting Laws A.R.S. offered as exhibits in defense of a motion for Summary

' Judgment was before the Court. Rule 56(c) A.R.S. 16,

(3) Administrative Special Actions A.R.S. 17 and Rules of Civil Practice. The Judgment and Findings (Ap-

A.R.S. 12- i Certiorari

a iene Cave op oar pendix D) were deliberately worded to prevent Appellant

In an effort to void the aforesaid proceedings, mitigate from vindicating his federal civil rights or being compen-

damages, restore status quo and establish tenure for all in- sated in any future action against the officials as indivi-

duals.

18

THE NEED TO CONTINUE AT THE STATE LEVEL

6. The direct interest of the Chief Justice, three Chief

Judges, the City Administration, disgrace associated with

the removal process and fear of future retaliation prevented

Plaintiff from associating in private practice or obtaining

public employment in his chosen field. On July 6, 1976,

a Special Action was taken in Case No. 12760 to the Ari-

zona Supreme Court on certiorari with the record. The

Chief Justice disqualified himself and the Associate Jus-

tices, to whom Petitioner was also well known, allowed ten

minutes of argument and refused jurisdiction (Appendix E).

To set aside the improper and fraudulent judgment,

Notice of Appeal was filed in the Arizona Court of Ap-

peals in Case No. 1 CA-CIV 3595 on August 3, 1976.

Attempts to accelerate the appeal were frustrated by de-

lay and dismissal efforts of Respondents. It was apparent

delay was to allow the civil rights and slander statute of

limitations to expire.

PROCEEDINGS IN THE DISTRICT COURT

ON FEDERAL CLAIMS

7. On February 16, 1977, Petitioner duly commenced

in the Federal District Court for Arizona, citing 28 U.S.C.

1331 and 1343, 42 U.S.C. 1981-1986 inclusive and 1988,

three civil rights actions in one complaint seeking damages

and injunctive relief against fifteen individuals who, under

color of state law as City of Phoenix officials, deprived

Petitioner of constitutional rights and immunities, his pro-

fessional position and reputation as both an attorney and

City Judge. Case No. CIV 77-121 assigned to Chief Dis-

trict Court Judge the Honorable Walter E. Craig.

19

THE COMPLAINT

8. The complaint charged certain individual Defen-

dants, acting in their capacity as City Manager or Mem-

bers of the City Judicial Selection Board, of engaging in

a conspiracy to deprive Plaintiff-Appellant of his office

as a member of a separate and independent branch of

the City of Phoenix government. That some Defendants

also occupied other official positions, as the Chief Justice

of the Arizona Supreme Court, the Chief Superior Court

Judge, State Bar Association Treasurer and President of

Plaintiff’s County Bar Association and misused the pres-

tige of their other office to dignify unfair and unlawful

proceedings in excess of all jurisdiction. That other De-

fendants were aware of the civil rights violations and as-

sisted or failed to prevent the complained of acts.

The complaint sought injunctive relief to prevent the

Respondents from maintaining or releasing any record

of the actions taken against Petitioner; a declaratory

judgment voiding the proceedings and legislation; reinstate-

ment in office subject to hearing in accord with due pro-

cess by the City Council; exemplary and compensatory

damages, and protection from further acts by Respondents

or others in their behalf to further deprive Petitioner of

due process or equal protection. —

MOTION UNDER 28 U.S.C. 455 AVOIDED

9. The District Court Judge, Walter E. Craig, did not

request reassignment of the case to a District Court Judge

not a member of the Arizona Bar Association as he cus-

tomarily did in matters involving officers of the Bar Asso-

ciation or Arizona Supreme Court. The Petitioner, after a

sham Motion to Dismiss or Abstain was filed by Respon-

dents, filed a Challenge to the Array of Jurists citing cus-

tom and provisions of 28 U.S.C. 455 and that he had a

reasonable question concerning the ability of an Arizona

Judge to be impartial. Petitioner then filed a Motion for

Partial Summary Judgment requesting the equity relief

usually afforded under Regents v. Roth, 408 U.S. 59;

Perry v. Sinderman, 408 U.S. 593 and Pickering v. Board

of Education, 391 U.S. 563 and attached exhibits illus-

trating his efforts through exercise of First Amendment

rights to improve the local justice system in which he was

employed as well as his affidavit and other evidence con-

traverting defenses raised and supportive of his Motion.

Petitioner had with the complaint submitted several news

articles and three editorials, some quoting the Respondent

Golston, Chairman of the Judicial Selection Board, stating

false charges allegedly levied against Appellant at secret

meetings of the Board. Petitioner, in his affidavit and com-

plaint, alleged all charges except the “directed verdict”

charge were not included in the transcript of the public

meeting.

The District Court Judge assigned both Motions to a

visiting Senior Judge, the Honorable Martin Pence of

Hawaii, for disposition during his temporary assignment

to Arizona from April 4 to April 23, 1977 without rul-

ing on the Motion filed under 28 U.S.C. 455 and making

it impossible to file an affidavit of bias and prejudice un-

der the circumstances. Petitioner, an attorney for over

twenty years, although not experienced in Federal or

Civil Rights matters, was then put on notice that, after

a year of harassment in State Court, he was to be denied

justice in the Federal Court. Motions to dismiss are

disfavored. If pleadings are defective, the right to amend

is usually granted and such motions can require several

hearings. Rule 8F, Federal Rules of Procedures provides,

“All pleadings shall be so construed as to: do substantial

justice.” Azar v. Conley, 456 F.2d 1382 (6th Cir. 1972);

Wood v. Maryland Casualty, 322 F. Supp. 295 (D.C. La.

1971); Boles v. Fox, 403 F. Supp. 253; U.S. v. Diebold,

369 U.S. 654; Haines v. Kerner, 404 U.S. 519 (1972);

Boline v. United Farm Workers, 494 F.2d 541 (9th Cir.

1974); Lownschuss v. Kane, 520 U.S. 55 (2d Cir. 1975).

Just prior, this Court laid down the following direction to

Federal Courts in Arlington Heights v. Metro Housing Corp.,

___ US. ___, 50 L. Ed. 2d 450, 97 S.Ct. _:

“Determining whether invidious discriminating pur-

was a motivating factor demands a sensitive

inquiry into circumstantial and direct evidence.”

The Petitioner had alleged in his Complaint, Motion for

Partial Summary Judgment and evidence that was uncon-

traverted, such actions of the state officials was in retalia-

tion of exercise of First Amendment Rights. Pickering v.

Board of Education, supra; Rafferty v. Philadelphia Psycht-

atric Center, 356 F. Supp. 500 (1973); Dombrowski 0.

Pfister, 380 U.S. 479 (1965), where the United States

Supreme Court created an express exception to the ab-

stention doctrine for cases involving the right of free ex-

pression. Prior to the hearing, in Mt. Healtby v. Doyle,

___ US. __, 50 L. Ed. 2d 471, 97 S. Ct. _, this Court

held evidence of retaliation for exercise of First Amend-

ment rights shifted the burden onto the agency to “show

by a preponderance of the evidence that it would have

reached such a decision as to re-employment even in the

absence of the protected conduct.”

Petitioner was, by the actions of the District Court Judge,

placed in the same type of position he was in when the

Chief Justice of the Arizona Supreme Court and Chief

Superior Court Judge sat upon a board allegedly hearing

evidence regarding his judicial performance and qualifica-

tions from his superior, the Chief Presiding City Court

Judge and his subordinates. And as in the state case, the

District Court Judge and Senior Judge acted arbitrarily,

capriciously and maliciously and departed from the normal,

accepted and usual course of judicial proceedings. They re-

solved and decided federal questions in a way which con-

flicted with decisions of the Supreme Court and as in the

state case signed a judgment inconsistent with the Pro-

nouncement of Judgment so as to award Summary Judg-

ment on the merits which Petitioner was prevented from

presenting, many clearly jury questions.

SENIOR JUDGE DISREGARDED THE

EVIDENCE AND THE LAW

10. While Petitioner’s Motion for Partial Summary Judg-

ment was well supported with uncontraverted evidence and

briefed recent federal court holdings, Respondents submit-

ted no evidence, no verified pleadings, no witnesses, sup-

ported only by cases overruled by the Supreme Court in

Monroe v. Pape, 365 U.S. 167, when it charged the tradi-

tional allocation of responsibilities between the State and

Federal Courts which led to spectacular extension in the

field of human rights. In the face of numerous citations

following Regents v. Roth, Perry v. Sinderman, supra, on

government employment rights and current law which does

not require exhaustion of state remedies, McNeese v.

Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10

L. Ed. 2d 622 (1963) and Steffel v. Thompson, 415 U.S.

at 472, 94 S. Ct. at 1222, 39 L. Ed. 2d at 522, where

this Court said:

“When federal claims are premised on 42 U.S.C. Sect.

1983 and 28 U.S.C. Sect. 1343 (3) - as are here

- we have not required exhaustion of state judicial

or administrative remedies, recognizing the paramount

role Congress has assigned to the federal courts to

protect constitutional rights.”

THE DISTRICT COURT DISMISSED AND ABSTAINED

11. On April 7, 1977, after subjecting Petitioner to crit-

ical questioning which further brought out the existence of

Gibson v, Berrybill, 411 U.S. 564, 93 S. Ct. 1689, 36 L.

Ed. 2d 488, abuses by the state judiciary, the Senior Judge

made the following ruling denying Petitioner’s motion for - =

partial summary judgment: .

“The Court: In effect, 1 am abstaining from every-

thing except just this one, narrow claim, that’s all. I

am not abstaining: I am not using the England

case. No, I am not abstaining. ] am just simply rul-

ing that he has no cause of action. He stated no

cause of action to allow him—this is your motion to

dismiss—not on the basis of everything that’s over

in the state, not on the basis of abstention; al

if you want me to, I'll put that as a double barrel,

even if ] am wrong on the first dismissal, I will also

state that I would abstain from everything else. You

can put that in. If 1 am wrong in dismissing the ac-

tions other than just this one, narrow issue—one,

narrow facet of the complaint—I would abstain

from any of the rest because it appears to me from

the pleadings and what has been represented here

that all of the actions can be properly, and should

properly be heard over on the state side and in the

state courts where they now are resting.

“Prepare the order.”

24

THEN THE STATE CASE WAS TRANSFERRED

12. The following day, on April 8, 1977, the state ap-

peal, as one of the 144 transfers from 2337 cases processed

or pending in the Arizona Court of Appeals during the year,

was transferred on order of Chief Justice Cameron, a Re-

spondent in his individual capacity, to the Arizona Supreme

Court for oral argument at the earliest opportunity. As-

signed Case No. 13195, it is the same case which, under

No. 12760, the Supreme Court dismissed on July 20, 1976.

The Chief Justice again disqualified himself.

DISTRICT COURT AWARDED SUMMARY JUDGMENT

13. The formal District Court Judgment, filed April 22,

1977, (Appendix A) states no grounds for dismissal but

renders final judgment upon the merits under Rule 56,

F.R.C.P. Summary Judgment. Although the Motion was

characterized as being under Rule 12(b)(6), F.R.C.P., fail-

ure to state a claim, it was based on matters outside the

pleadings and is not denominated as being without preju-

dice. Tuley v. Heyd, 482 F.2d 590 (Sth Cir. 1973).

The judgment grants dismissal as to all parties in their

individual capacity thereby relieving all Respondents from

any liability whatsoever deprving Petitioner of a jury trial

and reduces the Senior Judge’s formerly stated right to a

“Roth and Sinderman”’ hearing to a Roth v. Regents hear-

ing before the Judicial Selection Board in their official

capacity. They are neither the appointing body referred to

in those cases nor a body that could be held under 42

U.S.C. 1983, Momroe v. Pape, supra, and forecasts the

futile and inadequate ultimate relief to which Petitioner

could “possibly” be entitled.

———= ==»

25

Notice of Appeal was filed in April 25, 1977 and since

no judge would be available for post judgment relief, some

of the grounds which were related to the Senior Judge,

who indicated the matter was out of his hands, were in-

cluded in the notice.

Upon learning of the State Appeal transfer to the Ari-

zona Supreme Court, an extraordinary Emergency Motion

to restrain that Court for passing upon a case purporting

to deal with the same subject matter contained in the Fed-

eral Appeal in aid of their jurisdiction, 28 U.S.C. 1651(a),

was made to the United States Court of Appeals for the

Ninth Circuit and denied by a two judge panel headed by

the Arizona Circuit Court Judge.

On June 8, 1977, a motion for rehearing by the Court

in Banc, under Appellate Rule 35(b), F.R.A.P. was also

denied and an investigation into whether all judges, who

were in regular active service, received a copy of the mo-

tion proved negative. The fact that had the State Appeal

not been transferred by the Respondent Cameron, it

would not have been decided for at least a year was clear-

ly stated in the Motion and uncontraverted in the response

as was the lack of an impartial state forum and that

Court’s prior rejection of the case.

*

CONSTITUTIONAL AND ETHICAL

RESTRICTIONS DISREGARDED

14. Petitioner, over the past eighteen months, has been

deprived of Constitutional rights and immunities under

First, Fifth and Fourteenth Amendments by various mem-

bers of the judiciary attempting to protect other members

of the judiciary. Such Respendents acted in their individual

capacity, in violation of specific provision of the Arizona

26

Constitution, Article Six, Section 25, and Canon Five of

the Code of Judicial Conduct, as members on the Judicial

Selection Board and usurped the mandatory powers of

City Council in an attempt to remove from office without

legal cause one who dared to offer constructive criticism

regarding an unfair and inefficient justice system. In spite

of diligent efforts, Petitioner has been unable to obtain ef-

fective legal representation, bonafide hearings or trial at

any stage. The sham briefs of Respondents now filed in

the United States Court of Appeals and the Arizona Supreme

Court, involvement of the Chief Justice as a party and inter-

est of the Federal Circuit Court Judge from Arizona, who

has been sheperding the Petitioner’s case, leads to the un-

fortunate inescapable conclusion that unless this Court ex-

ercises its discretionary powers, Petitioner will again be

denied due process of law by another procedural trap and

revolve from Court to Court.

RULE OF LAW NOT AVAILABLE

15. Had the usual course of judicial proceedings been

available, the State action would have been tried within 20

to 60 days, and discovery taken place in the federal action.

The best Petitioner can expect is to be allowed to start all

over again and be subjected to the same harassment, as al-

leged the Judicial Selection Board was composed in such a

manner as to produce such result. The Ninth Circuit Court

of Appeals has so far sanctioned such a departure by the

lower court, apparently considering the matter as included

in the class of cases subject only to the will of the State’s

highest Court and not Schware v. Board of Bar Examiners,

infra; Dombrowski v. Pfister, supra, or Gibson v. Berrybill,

supra, abuses of power and bias creating an exception to

=a» =r

27

Younger v. Harris rule, 401 U.S. 37 and principles of com-

ity.

REASON FOR GRANTING THE WRIT

1. Petitioner believes a showing has been made that

this Court should grant the Writs applied for to resolve a

conflict between State and Federal Courts which will be

used to deny him due process, as an exercise of the Court’s

power of supervision. The District and United States Court

of Appeals obviously are reluctant to expose the improper

conduct of certain Respondents. Present also is an impera-

tive question of public importance concerning the need to

define, “independence and integrity” of the judiciary.

On June 20, 1976, while this nation prepared to cele-_

brate its bicentennial, Petitioner, ostracized and abandoned

by the legal community by reason of his defying and auto-

cratic City Judicial Selection Board and having requested a

hearing, filed a brief in the Superior Court, which in part

read as follows:

“Plaintiff has brought this action on his behalf and

all those similarly situated alleging the violation of

fundamental rights which not only visited tragedy

and hardship upon the individual judges and their

families, but indirectly the citizens of this commun-

ity. The independence of the judiciary, separation of

the powers of government and the right of the pub-

lic to be informed of the reasons for governmental

decisions and participate in the proceedings are at

issue.”

“On July 4, 1776, the Declaration of Independence was

signed which provided in part:”

“We hold these truths to be self-evident, that all

men are created equal, that they are endowed by

their Creator with certain unalienable Rights, that

among these are Life, Liberty and the Pursuit of

Happiness. That to secure these rights, Governments

are instituted among Men, deriving their just powers

from the consent of the governed. That whenever

any form of Government becomes destructive of

these ends, it is the Right of the People to alter or

to abolish it, and to institute new Government, lay-

ing its foundation on such principles and organizing

its powers in such form, as to them shall seem most

likely to effect their Safety and Happiness.”

“History advises that many of the signers of both

the Declaration of Independence and later the Con-

stitution employed slaves, tenant farmers or workers

that were thought of as no more than instruments

of commerce. It was not until 1868, with the adop-

tion of the 14th Amendment, commonly known as

the due process clause, that the promise of Life,

Liberty, and the Pursuit of Happiness held meaning

for the cOmmon man or woman.

“AMENDMENT XIV (Rights of Citizenship) United

States Constitution:

“Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction there-

of, are citizens of the United States and of the

State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty

or property, without due process of law; nor deny

to any person within its jurisdiction the equal pro-

tection of the laws.

“The Due Process Clause brought down from the

Magna Charta is also found in Article 2, Section

4 of the Arizona Constitution; as the United States

me Court said in Truax v. Corrigan, 42 SCt

124, 257 U.S. 312-66 LEd 254:

aon at Een eee ee

shall have the protection i dae te anak om and

dhe bonetie of dhe guienl:- low, a law which hears

before it condemns, which proceeds not arbitrarily

29

or capriciously but upon inquiry, and renders judg-

ment only after trial, so that every citizen shall hold

his fe, berey, property, and immunities under the

protection of the general rules which

Hurtado v. California, 110 U.U. 516, 535. It, of

course, tends to secure equality of law in the sense

that it makes a required minimum of protection for

everyone’s right of life, liberty and property, which

the Congress of the legislature may not withhold.

Our whole system of law is predicated on the gen-

eral fundamental principle of equality of applica-

tion of the law. ‘All men are equal before the law’

‘this is a government of laws and not of men,’ ‘no

man is above the law’ are all maxims showing the

spirit in which legislatures, executives and courts are

expected to make, execute and apply laws.”

The message of the Declaration of Independence is not

moot, when Constitutional safeguards are as in this case

cast aside, those charged with the responsibility of enforc-

ing its provisions, must not find excuses to step aside and

allow the abuse to continue. The century of delay in en-

forcing the 14th Amendment and accompanying abuses

by States demonstrates the burden placed on this and all

Courts.

The Superior Court summarily dismissed with prejudice

the Petition, although the proceedings before the Board

and City Council were for numerous reasons void, not

only under recent decisions cited in this application, but

under cases as Wong Yen Suing v. McGrath, 339 U.S. 33,

70 S. Ct. 445, 95 L. Ed. 616, and Yeck Wo v. Hopkins,

188 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 —

where this Court said:

bold tle tet or tae mothe of Bikag te aay mate”

rial right ¢ssential to the enjoyment of life at the

mere will of another, seems to be intolerable in any

30

country where freedom prevails, as being the essence

of slavery itself.”

The use of confidential information which a board would

not permit the candidate to see or respond to was con-

demned by this Court in Schware v. Board of Bar Exam-

iners, 353 U.S. 232, 77 S. Ct. 753, 1 L. Ed. 2d 796

when this Court held:

“A State cannot exclude a person from the practice

of law or from any other occupation in a manner

or for reasons that contravene the Due Process or

Equal Protection Clause of the Fourteenth Amend-

ment . . . . Regardless of how the States grant of

permission to engage in the occupation is character-

ized.”

That doctrine, well established in Arizona Law by the

many cases set out by the Arizona Supreme Court in

Application of Levine, 97 Ariz. 88, 397 P.2d 205. A case

where an investigative board denied due process and at-

tempted to usurpt the powers of the Supreme Court. That

case laid out the law on the right of confrontation and

appeal to the delegating authority.

The Superior Court granted final Summary Judgment

without hearing in the face of decisions such as Vazzano

v. Superior Court, 106 Ariz. 542, 479 P.2d 685 and

Jobnson v. Collins, 11 Ariz. App. 327, 464 P.2d 647,

which place the burden of proof upon the defendant

City Council and its Board. The Supreme Court denied

jurisdiction on the Special Action ignoring a long line

of decisions stating that certiorari to that court was the

proper method of testing procedures used to remove a

judicial office-holder, Jobnson v. Collins, supra, as well

as lack of compliance with Arizona Rules of Procedure

and statutory law.

31

The Federal District Court dispensed the same type of

justice when, almost a year later, it dismissed or abstained

on all Petitioner’s federal claims leaving him to exhaust

already denied state administrative remedies. The Senior

Judge, like Petitioner, apparently had no confidence in the

success of state proceedings and for that reason, attempted

to reserve a hearing so Petitioner can hold his head up

when he walks into a public place. How inadequate or im-

proper has already been demonstrated and can be left to

the imagination. The witnesses will, in the main, be em-

ployees or subordinates of Respondents. If Petitioner is

successful, then the Chief Justice and the other public offi-

cials inherit a stigma. This, the District Court and Court of

Appeals for the Ninth Circuit wish to avoid.

INDEPENDENCE AND INTEGRITY

OF THE JUDICIARY

2. Under our Constitutional form of government the

judiciary has carefully avoided non judicial assignments

frorn the legislative branch. The reason is summarized in

Hayburns Case, 2 D.C. 11 409, 1 L. Ed. 436 (U.S. 1792)

and Davies v. Osborne, 14 Ariz, 185, 125 P. 884 (1912),

as Arizona became a State. In City of Phoenix v. Pensinger,

(1952), supra, the Arizona Supreme Court found unconsti-

tutional a City Charter Amendment which called for judges

of a Court of Record to select candidates for the office of

City Magistrate, later, to be called City Judges, Arizona

Constitution, Article 6, Section 25, Phoenix City Ordinance

§ 8742 calls for both Appellate and Superior Court Judges

of Courts of Record to serve upon the same type board.

The Chief Justice designated or assigned himself to serve at the

removal proceedings of Petitioner and then stepped aside. The

Chief Justice selects Chief Superior Court Judges and is also the

32

Chairman of the State Merit Selection System for candi-

dates of Superior and Appellate Courts. The secrecy of

that body’s activities and procedures for removal of an in-

cumbent judge are all set out in the Arizona Constitution,

Article 6, Section 35 and Article 6.1. Final authority is in

the Arizona Supreme Court. The integrated State Bar As-

sociation has been ruled to be immune from laws applicable

to corporations or governmental agencies, Bridegroom v.

State Bar, 27 Ariz. 47, 550 P.2d 1089 and only respon-

sible to the Supreme Court.

- SOVEREIGN POWER WAS PRESENT,

THE ACCUSED WAS NOT

3. It can be seen that vast power over the destiny of

a member of the bar or judiciary rested with Chief Justice

Cameron, as he sat as a member of the City of Phoenix

Judicial Selection Board. Authority over all judiciary in

the County complete when he signed the oath of that of-

fice. The right of dissent by the four other lawyers, who

served on the board would be inhibited, as would the right

to refuse to appear or testify in the case of the City

Prosecutor and Chief Public Defender, both of whom were

summoned to testify for twenty minutes at the “private

meeting” concerning the “confidential views of the mem-

bers of your (their) office as to the quality and qualifica-

tions of the incumbent judges.” The expected impact up-

on the three lay members of the board was found in the

exhibit presented in the state case. Mr. Whitecraft, a School

Superintendent, testified that the lay people based their

decision on “proper judicial procedures” as recommended

by the “judges on our (the Board) committee.” The evi-

dence also demonstrated the helpless position occupied by

33

the City Council, City Attorney and Petitioner’s attorney.

The evils of concentration of power in one person or

body warned of by James Madison, like the responsibility

vested in federal courts by the supremacy clause, need not

be cited, although obviously forgotten by those whose ac-

tions are brought before this Court for review. Petitioner

believes it sufficient to call to this Court’s attention that

the power over incumbents was quasi judicial; the 1974

Revision of the Open Meeting Law 38-431, et seq. gave

him the right to demand an open meeting before both

Board and Council. In November 1976, Chief Justice Cam-

eron authored an opinion in the Arizona Supreme Court,

holding quasi-judicial proceedings subject to the exceptions

of the act, 38-431.08 A.R.S. for “judicial proceedings and

any political caucus,” thereby nullifying the bulk of the

act. Arizona Press Club, Inc. v. Arizona Board of Tax Ap-

peals, 113 Ariz. 545, 558 P.2d 697. The. Legislature amended

the exceptions section to give judicial proceedings its com-

mon meaning, adding, “Of any Court.”” Laws of 1977 S.B.

1110. The right granted an employee or appointee before a

review board is subject to the Open Meeting Provisions.

THE EVIDENCE AND STANDARD OF PROOF AS

IMPROPER AS THE BODY AND PROCEDURES

4. Courts have universally adopted the pronouncement

in In re McGarry, 380 R.I. 359, 44 N.E.2d 7:

“We hold that public policy which renders a judge

acting in a judicial capacity in a court proceeding

immune from liability, applies with equal force to

a disciplinary proceeding.”

In In re McLaughlin, 153 Tex. 183, 165 S.W.2d 805,

appeal dismissed, 343 U.S. 859, 75 S. Ct. 83, 99 L. Ed.

677, the Court held:

“j depriving a j of his of-

dia. ab sqpuaphnn amuhns af nad & cous ant

convincing evidence.”

The Judicial Selection Board denied Petitioner his right

to succeed to his office based on alleged hearsay testimony

of employees of the Respondent City Manager, concerning

the “confidential view” of other employees. The Chairman,

Respondent Golston, the chief witness, brought to the

closed meetings evidence involving “one judge” and at a

proceeding concerning impartiality of the City Judges due

to the unorthodox removal procedure, State v. A.M. Segedy,

20329069-OC, City of Phoenix Court, March 15, 1976.

When asked:

“Q: and don’t you think a person who appears

before that kind of a Board situation can say many

things since he knows they’re not being taken and

therefore, it would never be divulged to anybody.

Maybe they could misinterpret or exaggerate or

maybe give untruths, isn’t that right?”

The then Chief City Court Judge’s response was:

“A: _ It’s possible, sure.”

The above recited evidence was before the Arizona and

Federal Courts when they dismissed Petitioner’s claims and

request for injunctive relief. In Chambers v. Central Com-

mittee, 224 P.2d 583, the California Court held:

‘‘a judge is not answerable to the Bar Association,

only the law and that to safeguard the independence

of the judiciary, it is necessary to show misconduct

on the part of the judge before subjecting him to

any form of discipline.”

Is the same test not applicable when the judicial hier-

archy conducts the inquiry. Canon One of the Judicial Code

35

of Conduct, Rule 45 Arizona Supreme Court provides:

“CANON ONE

“A JUDGE SHOULD UPHOLD THE INTEGRITY

AND INDEPENDENCE OF THE JUDICIARY. An

independent and honorable judiciary is indispensable

to justice in our society. A judge should participate

in establishing, maintaining, and enforcing and should

himself observe high standards of conduct so that

the integrity and independence of the judiciary may

be preserved. The provisions of this code should be

construed and applied to further that objective.”

Webster’s New World Dictionary defines:

Independence. A being independent; freedom from

control of another.

Integrity. 1.A being complete; wholeness. 2. Unim-

paired condition; soundness. 3. Uprightness, honesty

and sincerity.

As a member of a separate and independent branch of

government and the judiciary, Petitioner attempts to com-

ply with the mandate of Canon One as amplified by

Canons of Judicial Ethics, Raymond L. Wise, 2d ed. Mathew

Bender 1970 pertaining to lower court judges and one aware

of the need to raise the local standards. Petitioner laid

claim only to being hard-working and honest, serving the

law as it related to the needs of the public, and to raise

the image of a legal profession which garnered little re-

spect. Samples of that effort can be found in Appendices

H & I, and demonstrates efforts to be in a position to ful-

fill his oath of office. He devoted to that task as much

time as required, tormented by some, appreciated by

others, even Chief Justice Cameron wrote twice regarding

the Supreme Court’s appreciation of Petitioner’s efforts.

Unlike some of the Respondents who strive to be

identified as “conservative,” Petitioner, as mandated by the

Code and City Charter, avoided politics, as well as any in-

terest in prosecution for corruption in the justice system.

His goal was to establish a fair court system with checks

and balances to enable the judiciary to perform its func-

tion. Petitioner must abandon modesty to point out to this

Court that his Mexican-American bailiff and the sole black

on the City Council opposed his removal from the bench,

_ while efforts to deny any type of hearing where Petitioner

can participate by Respondents, who have all the advan-

tages, speaks well of his record as did exhibits in the trial

courts. He is worthy of this Court’s consideration as an

individual citizen and representative of a class interested in

establishing the integrity of the legal profession and in

combatting oppression from any source.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

By Richard T. Tracy, Sr.

Petitioner Pro Se

et ee A

wee AA ne me On Se es oem

la

APPENDIX “A”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

RICHARD T. TRACY, SR.,

Plaintiff,

NO. CIV 77-121 PHX WEC

JUDGMENT

Vv

RODGER A. GOLSTON,

et al.,

Defendants.

ee

(FILED: April 22, 1977)

Defendants having filed a Motion to Dismiss Plaintiff's

Complaint, and Plaintiff having filed a Motion for Partial

Summary Judgment herein; written memoranda having been

filed, oral argument having been had on both Motions, and

the Court being fully advised in the premises;

IT IS HEREBY ORDERED, ADJUDGED AND DE-

CREED that Plaintiff’s Motion for Partial Summary Judg-

ment be denied and that Plaintiff take nothing thereby.

IT IS FURTHER ORDERED, ADJUDGED AND DE-

CREED that Defendants’ Motion to Dismiss Plaintiff’s

Complaint be granted in all respects, except for those al-

legations of Plaintiff’s Complaint which can be read to

state a claim within the purview of 42 U.S.C. § 1983

alleging that the Judicial Selection Advisory Committee,

or members thereof in their capacities as such, advised

the press of statements concerning Plaintiff made private-

ly to the Advisory Committee by others, the effect of

which resultant press coverage, within the purview of

Board of Regents v. Roth, 408 U.S. 564, 573, 33 L. Ed.

2d 548, 558-9, “. . . imposed upon him a stigma or other

disability that foreclosed his freedom to take advantage of

other employment opportunities. . .” Further, should

Plaintiff in a subsequent trial thereon sustain such allega-

tions, then ‘. . . due process would accord an opportunity

to refute the charge[s] . . .” before the Advisory Commit-

tee.

IT IS FURTHER ORDERED, ADJUDGED AND DE-

CREED that all of Plaintiff’s other claims for relief be

dismissed and prayers for relief be denied, except for the

claim, and, if proved, the relief set forth above.

Consistent with the foregoing, IT IS FURTHER OR-

DERED, ADJUDGED AND DECREED that the Motion

to Dismiss be granted in toto as to those Defendants who

are not members of the Judicial Selection Advisory Com-

mittee, being John Wentz, Margaret T. Hance, William

Donahue, Joy W. Carter, Rosendo Gutierrez, Kenneth

O’Dell and Amy T. Worthen, and that they be removed

as Defendants in this action. In addition, the remaining

Defendants herein, being Rodger A. Golston, Robert C.

Broomfield, James Cameron, Stanford Lerch, Anthony

H. Mason, Charles Lee Whitecraft, Robert J. Donohoe

and James O. White, remain as Defendants only in their

official capacities as members of the Judicial Selection

Advisory Committee and that the Motion to Dismiss be

granted in toto as to each of them in their individual

capacities.

IT IS FURTHER ORDERED, ADJUDGED AND DE-

CREED that there being more than one claim for relief

presented in this action, there being multiple parties

TAT PRED I IR ee ll Re

3a

involved, and there being no just reason for delay, the

Court expressly directs the entry of Fina’ Judgment here-

in as to all but the single claim and, if proved, the pos-

sible relief remaining to Plaintiff with respect only to

certain Defendants in their official capacities as members

of the Advisory Committee, all in accordance with the

foregoing determination.

Done in Open Court this 22 day of April, 1977.

/s/ Martin Pence

The Honorable Martin Pence

Fe ee ee ee

ib

APPENDIX “B”

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

RICHARD T. TRACY, SR. )

Plaintiff

vs. ) No. CIV 77-121

RODGER A. GOLSTON, ) NOTICE OF APPEAL

et al )

Defendants

(FILED: April 25, 1977)

NOTICE IS HEREBY GIVEN that RICHARD T. TRACY,

SR., Plaintiff above named, hereby appeals to the United

States Court of Appeals for the 9th Circuit from the Final

Judgement [sic] and the whole thereof dated April 22,

1977. Such judgment is based upon the Court’s oral order

of abstenation on April 7, 1977 upon that portion of Plain-

tiff’s complaint setting forth claims for conspiracy to vio-

late civil rights, libel and slander and unjustified interfer-

ence, while finding Plaintiff’s civil rights may have been

violated. With knowledge or uncontroverted allegations that

the acts complained of were in retaliation of Plaintiff’s ex-

ercise of free expression; that federally protected claims

were not included in the State Class Action which was dis-

missed without hearing; that the State Courts had aban-

doned their traditional role of neutrality.

/s/ Richard T. Tracy, Sr.

RICHARD T. TRACY, SR.

Plaintiff

Bi iit nities 0 Sah det BR te, eens tine Rate ARE EO wre

Ic

APPENDIX “C”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

RICHARD T. TRACY, SR. )

Plaintiff, >

vs. NO. CIV 77-121 PHX WEC

RODGER A. GOLSTON, )

et al., )

Defendants.

PARTIAL TRANSCRIPT OF PROCEEDINGS

The above-entitled matter came on for hearing on Thurs-

day, April 7, 1977, at 3:55 P.M., at Phoenix, Arizona,

BEFORE:

HONORABLE MARTIN PENCE, Judge.

APPEARANCES:

RICHARD T. TRACY, SR., Esq.

7437 North 7th Street

Phoenix, Arizona Appearing as

Plaintiff Pro Se;

EDWARD JACOBSON, Esq.

Snell & Wilmer

3100 Valley Center

Phoenix, Arizona Appearing for the

Defendants.

THE COURT: All right, thank you.

First, addressing myself to the last problem, namely, the

motion for partial summary judgment, Mr. Tracy, that must

be denied and is denied. For the Court at this time to order

what you asked the Court to de, would be for the Court

to decide now upon virtually all of the allegations of your

complaint and determine that you were 100% right, and

that you were entitled to have the immediate action on

the part of the Court which you urge; and, that the Court

does not feel it can or will do, or is permitted to do by

the law, not upon the status of the case as it is presently

before the Court. So, your motion for partial summary

judgment is denied.

Now, back to the motion to dismiss, which is the un-

derlying motion here, it clearly appears from the pleadings

and from the moving papers, that practically every one of

the issues before this Court here have been presented to

the state court. I say, practically every one. It would ap-

pear that even though you, Mr. Tracy, have the actions

asking for almost the same relief over in the state court

as you have asked here, nevertheless the one that has

bothered me all the way through, as Mr. Jacobson recog-

nizes, is that which concerns your rights under § 1983,

and no other; as set forth there in both Roth and Perry

versus Sinderman, namely, the allegations that there was

an act of a state agency in declining to rehire you and, in

connection therewith, making statements as to that basis

for the rehiring, was certain acts on your part which

would cast a stigma upon your reputation as a Judge,

which was the position which you held, and might at the

same time interfere thereby with your opportunity to be

employed. Now, that last portion of it is a little bit weak,

eee

A hes

A ante aot Rabat Om Ces Bomar on ee ee

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3c

because employment as a judge, and there are very few

jobs that call for judges, and once you have been removed

as a judge, ordinarily only a change in politics enables you

to get back again. But, there have been changes in the

political atmosphere, and I use that term “political” broad-

ly, going far beyond party allegiance. There have been

changes in the makeup of various boards and commissions.

It might be that subsequent applications before subsequent

boards or councils might lead to a different conclusion.

That is purely hypothetical.

I am going to dismiss all of your claims except that one,

and retain that at this time. I feel that you stated a cause

of action under § 1983, under that element of the possible

State action in creating and developing that which would be

a stigma upon your reputation, which would give you a

different standing under both the Roth and Sinderman

cases.

Now, as I said earlier, and I'll say it again, insofar as

your claim regarding damages for alleged defamatory state-

ments, defamation alone, as you know, doesn’t establish a

cause of action under any of the Sections 1981 through

1985. As you read undoubtedly, Mr. Tracy, in Williams

versus Gorton, which you cited, 529 F2d 668, 1976, the

case decided by a Judge from Hawaii—not decided, but

written by Judge Choy; you cited it, and there it is.

Now, it would appear then, in light of my order, that

you only have about three—how many were on that Com-

mittee?

MR. TRACY: The Committee contained seven indivi-

duals.

THE COURT: All right, whoever they are, those will

be the only seven left in your complaint here. I'll let you

go ahead and let you take your depositions, whatever you

want to do to find out what transpired, because, as I see it,

everything else you can take care over on the state side.

MR. TRACY: If it please the Court, without the § 1986

right, which is individuals who were aware of the commis-

sion of a violation of civil rights who do not prevent it... .

THE COURT: No, that’s out.

MR. TRACY: Then I really see nothing that | can gain

by discovery. I have put everything I have... .

THE COURT: Listen, you can at least go ahead with

your action under §1983 in connection with your claim

that you had a stigma cast upon your liberty by virtue of

the release of the information by the state itself.

MR. TRACY: With due respect, may I have clarification.

Are you saying—that is the very thing I asked for a motion

for partial summary judgment upon.

THE COURT: Well, you don’t have enough evidence to

get a summary judgment on it. All you have is enough evi-

dence to stay in Court.

MR. TRACY: Fine; thank you, sir.

MR. JACOBSON: Your Honor, do I assume correctly

that the Court has decided not to abstain until the settle-

ment of the matter before the Court of Appeals?

THE COURT: In effect, I am abstaining from every-

thing except just this one, narrow claim, that’s all. | am

not abstaining; I am not using the England case. No, I

am not abstaining. I am just simply ruling that he has no

cause of action. He stated no cause of action to allow

him—this is your motion to dismiss—not on the basis of

A ae a A ime te a ated I om -

Se ee eee ee

everything that’s over in the state, not on the basis of ab-

stention; although if you want me to, I'll put that as a

double barrel, even if I am wrong on the first dismissal, |

will also state that I would abstain from everything else.

You can put that in. If | am wrong in dismissing the ac-

tions other than just this one, narrow issue—one, narrow

facet of the complaint—I would abstain from any of the

rest because it appears to me from the pleadings and what

has been represented here that all of the actions can be

properly, and should properly be heard over on the state

side and in the state courts where they now are resting.

Prepare the order.

(Whereupon the proceedings were adjourned at 5:45

P.M., April 7, 1977.)

_. .

Be oe ek Cee toe . Oe A we ee

1d

APPENDIX “D”

IN THE SUPERIOR COURT

MARICOPA COUNTY

RICHARD TRACY, SR., )

Judge of the City Court,

Phoenix, Arizona,

Plaintiff,

No. 333371

JUDGMENT AND ORDER

OF DISMISSAL

v

WILLIAM DIXON, )

RICHARD A. GARCIA,

RALPH G. SMITH, JR.,

The above entitled and numbered cause having come on

regularly for hearing on defendants’ motion to dismiss be-

fore the court on June 22, 1976; plaintiff present on his

own behalf, and the defendants, Dixon, Garcia and Smith,

represented by Harry A. Stewart, jr., and all other defen-

dants appearing by the Assistant City Attorney, Ben Mar-

shall; the defendants having submitted legal memorandum

and oral argument in support of their motion to dismiss;

the plaintiff having presented exhibits, legal memorandum

and oral argument in opposition to the motion to dismiss,

the matter having been submitted to the court for its de-

termination and the court having granted defendants’ mo-

tion to dismiss and having heretofore made findings of fact

and conclusions of law,

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND

DECREED that defendants’ motion to dismiss is granted,

that plaintiff's complaint be dismissed with prejudice; that

judgment be entered for defendants against plaintiff and that

defendants recover the costs expended herein.

2d

DONE IN OPEN COURT this 7th day of July, 1976.

Richard T. Tracy, Sr. Jr.

7437 N. 7th St.,, Phoenix,

Arizona

(Title of Action)

FINDINGS OF FACTS AND

CONCLUSIONS OF LAW

This matter came on for hearing on motion of defendants

to dismiss the complaint, the plaintiff appearing in person

on his own behalf, and the defendants, William Dixon,

Richard A. Garcia, and Ralph G. Smith, Jr., appearing by

Harry A. Stewart, Jr., and all other defendants appearing

by Ben Marshall.

No evidence was taken, but exhibits were presented to

the court, arguments were made, memoranda were submit-

ted, and upon consideration, the court makes the follow-

ing findings of fact and conclusions of law.

FINDINGS OF FACT

1. That the Judicial Advisory Selection Committee, an

advisory committee to the Phoenix City Council, held meet-

ings regarding recommendations of qualified candidates to

the City Council and later advised the City Council of its

recommendations.

2. That the Phoenix City Council held an open, public

3d

meeting on March 9, 1976, with plaintiff and his attorne, ,

Richard Fay present. At the meeting Mr. Fay addressed

the Council prior to the appointment of City Court Judges.

3. That the Phoenix City Council at said meeting ap-

pointed Ralph G. Smith, Jr., to the vacant judicial position

which expired on or about December 20, 1975, appointed

William Dixon and Richard A. Garcia to the vacant judicial

positions that expired on February 14, 1976. These appoint-

ments were effective April 6, 1976.

4. That the Judicial Selection Advisory Committee in

its recommendations, the City Council in its appointments,

or any other defendants, made no negative statements or

charges against plaintiff.

5. That plaintiff whose four year term as a City

Court Judge of the City of Phoenix expired February 14,

1976, continued to exercise his duties until a successor

qualified on April 6, 1976.

CONCLUSIONS OF LAW

1. That the Charter of the City of Phoenix, Chapter

8, provides for the creation of a City Court, jurisdiction

in the appointment, term and removal of its Judges by

the City Council of the City of Phoenix and is constitu-

tional.

2. That the Phoenix City Council may create appro-

priate advisory committees.

3. That the Judicial Advisory Selection Committee in

making its recommendations and the Phoenix City Coun-

cil in appointing the City Court Judges complied with

A.R.S. 38-431 et seq.

4d

4. That plaintiff had no property interest in reappoint-

ment for an additional term, nor was he deprived of liberty

by the failure to be reappointed by the City Council or

the failure to be recommended by the Judicial Advisory

Selection Committee.

5. That on March 9, 1976, the Phoenix City Council

lawfully, without delegation, appointed defendants Ralph

G. Smith, Mr., William F. Dixon, and Richard A. Garcia

as Judges of the City Court effective April 6, 1976.

6. That Ralph G. Smith, Jr., is not a proper party to

this action as his term of appointment is not involved.

DONE IN OPEN COURT this 7th day of July, 1976.

/s/ Lawrence H. Doyle Jr.

JUDGE OF THE SUPERIOR COURT

a —

le

APPENDIX “E”

SUPREME COURT

STATE OF ARIZONA

Phoenix

85007

July 21, 1976

RICHARD T. TRACY, SR..,

Judge of the City Court,

Phoenix, Arizona

Petitioner, Supreme Court

vs. No. 12760

)

)

)

)

THE SUPERIOR COURT, ) Maricopa County

MARICOPA COUNTY y No. C 333371

HON. LAWRENCE H. )

DOYLE, JR., WILLIAM )

F. DIXON, )

)

)

)

Real Parties in Interest

Respondents.

The following action was taken by the Supreme Court

of the State of Arizona on July 20, 1976 in regard to

the above-entitled cause:

“ORDERED: The Court declines to accept jurisdiction

of the Petition for Special Action.”

Chief Justice James Duke Cameron did not participate

in the determination of this matter.

CLIFFORD H. WARD, Clerk

By /s/ Mary Ann Hopkins

Deputy Clerk

if

APPENDIX “F”

[Letterhead of Supreme Court, State of Arizona]

May 5, 1977

Richard T. Tracy, Sr., Esq. Andy Baumert, Esq.

7437 North 7th Street Phoenix City Attorney

Phoenix, Arizona 85020 930 Municipal Building

251 West Washington Street

Phoenix, Arizona 85003

ATTN: Ben P. Marshall

RE: Supreme Court No. 13195

Court of Appeals No. 1 CA-CIV 3595

Maricopa County No. 333371

RICHARD T. TRACY, SR. v. WILLIAM

P. DIXON, et al.

Gentlemen:

The above-referenced matter, transferred to the Supreme

Court by Order of this Court dated April 8, 1977, is

filed under Supreme Court No. 13195.

Oral Argument will be set before this Court at the

earliest opportunity.

Very truly yours,

CLIFFORD H. WARD, Clerk

By /s/ Mary Ann Hopkins

Chief Deputy Clerk -

kek

cc: Classie Gantt, Clerk, Court of Appeals, Division One,

West Wing, State Capitol Building, Phoenix, Arizona

85007

Wilson D. Palmer, Clerk, Maricopa County Superior

Court, 101 West Jefferson Street, Phoenix, Arizona

85003

wry

Ig

APPENDIX “G”

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD T. TRACY, SR. )

Plaintiff-Appellant,

vs. . No. 77-2034

RODGER A. GOLSTON, ) ORDER

et al. )

Defendants-Appellees. '

(FILED: June 8, 1977)

Before: TRASK and WALLACE, Circuit Judges

After due consideration the plaintiffs-appellant’s Mo-

tion For Rehearing of Order Denying Appellant’s Mo-

tion for Injunctive Relief and to Expedite Appeal Dated

May 25, 1977, by the Court In Banc, is denied.

ih

APPENDIX “H”

[Letterhead of Judge Richard T. Tracy]

September 27, 1973

Honorable R. C. Coulter, Jr.

Superior Court Division 24

125 West Washington Street

Phoenix, Arizona 85003

Re: Kilstrom vs Tracy

C 282326

Dear Judge Coulter:

Allow me to thank you for your patience at the hear-

ing on the above caption matter on September 25th. You

are correct, I cannot adjust to the system that currently

exists and therefore, work hard to try and change the

system. I deplore the fact that thousands of cases are

plea bargained or dismissed without regard to the merits.

That several lawyers have a ninety percent dismissal rate

and never try a case. Such practise [sic] is not fair to

other defendants or lawyers who do not manipulate the

system. Over thirty-five percent of D.W.I. cases are re-

duced or acquited in the Phoenix City Court, of those

appealed, an additional fifty-five percent are dismissed.

I have proposed legislation that would elminate a de

novo trial when a trial in the lower court was waived and

permit an appeal on questions of law to the Superior

Court or Court of Appeals by both the defense and the

State. Remands for trial and motions for a new trial are

unheard of in Maricopa County, dismissal and plea bar-

gains on appeal are common. Once defense attorneys find

that cases will be disposed of on the merits, the num-

ber of trial setting in our Court will decrease, the appeal

will become rare. In other Jurisdictions, appeals on ques-

tions of law far out number trial de novo.

In recent months, we have made great strides in bring-

ing our case load current, affording all a fair trial and the

ilty an opportunity for rehabilitation. I am proud of my

Oe sad ther is why 1 was so disturbed by the untrue al

tions of the petition . Had the objection been made at

sees of trial’ rest assured thet I would have considered

another course of action.

I appreciate the fact that an ex parte Testraining order

was not granted by you in this case. It is the first time,

to my knowledge, that a hearing was required. Such ac-

on? am certain, would reduce the special actions filed,

as well as increase the time before trial that an attorney

would review his defense in a given case.

Sincerely yours,

/s/ Richard T. Tracy

Richard T. Tracy

RTT/he

li

APPENDIX “I”

Arizona Republic

1974

Progress made in lower court revision drive

The Republic’s report on the open meeting of the Advi-

sory Committee on Lower Court Reorganization was some-

what disappointing to this reader. The negative reasons for

reorganization were stressed, the positive aspects under-

played. I believe it was a healthy and productive discus-

sion on a subject which has been under consideration since

1960 when the voters approved the Modern Courts Amend-

ment to the State Constitution.

Nationally the court systems are being re-examined. The

crime rate has steadily increased in spite of tripling law en-

forcement budgets over the past 10 years. This year over

$10 billion will be spent on state and local law enforcement.

The direct and indirect loss to the public from crime is im-

possible to ascertain. It serves no purpose to increase the

size of the funnel (law enforcement) or the container (cor-

rection and reform) without at least examining the filter and

opening of the container to look for obstructions.

The court budget for the entire state is about half that of

the City of Phoenix for law enforcement. It is false economy

to deprive the courts of the tools necessary to effectively

perform their function.

At the meeting several obstructions were called to the

committee’s attention from both rural and urban areas: Plea-

bargaining on a de novo appeal; the city being required to

prosecute while the county retains the revenue; lack of

communication between the various courts on issues seldom

2i

presented and reported in the Supreme Court or Court of

Appeals’ opinions, yet dealt with daily by the trial courts

and often inconsistently; most litigation is intermediate in

nature, yet Arizona has no intermediate court; jurisdictional

monetary limitations have failed to keep pace with infla-

tion. The drafters of the state constitution in 1912 could

not have anticipated the civil or criminal litigation gener-

ated by the auto age - we have already passed into the jet

age. Few enterprises have made this transition without sub-

stantial modification. Can we expect courts to do so and

remain effective?

Progress is being made. The new Rules of Crim-

inal Procedure promulgated by the Supreme Court of

Arizona are already eliminating delays which clogged the

court and reducing the incidence of criminal activity by

one awaiting trial. Plea-bargaining at the trial table is be-

ing discontinued, thus avoiding waste of court facilities

and the inconvenience to witnesses.

Probation supervision in Arizona lower courts has been

possible for less than two years, is now being implemented

in some courts. This will eliminate the revolving door

handling of cases, which is primarily an urban malady.

One of the functions of the Advisory Committee on Court

Reorganization is to determine methods of producing and

distributing revenue for the operation of the courts, so

that it will be more equitably distributed and perhaps

those who use or abuse the courts will contribute more

towards their support. Distinguished citizens are giving of

their time without compensation to thoroughly examine

and assist in developing a court system which will assure

equal justice under the law.

RICHARD T. TRACY