Scottsdale, Arizona Telephone Appearing Pro Per IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA

Transcription

1 1 1 1 David Cain Scottsdale, Arizona 0 Telephone Appearing Pro Per IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA DAVID CAIN, Petitioner IN AND FOR THE COUNTY OF MARICOPA v. No. Hon. Judge M. Martinez, Judge of the Scottsdale City Court of the State of Arizona, Respondent, and the STATE OF ARIZONA, the real party in interest Complaint Statement of the Case Special Action COMPLAINT AND REQUEST FOR ORDER TO SHOW CAUSE This Honorable Court has jurisdiction to accept this Special Action under B A.R.S. Special Actions, Rules of Procedure, Rule. Petitioner in this Special Action, David Cain, previously requested that the Lower Court issue a Subpoena ordering the Scottsdale City Clerk to produce certain records as more fully described herein and in the attached Memorandum of

2 1 1 1 Points and Authorities. Said records are necessary and vital to Petitioner s defense in the Action now pending in the Lower Court. Petitioner has no other reliable means of obtaining said records. The Lower Court has denied Petitioner s Subpoena request despite the Respondent having personal knowledge and detailed written reports which substantiate the very same abuses alleged by Petitioner in the denied Subpoena. Petitioner raised the issue of a invalid certification on the City of Scottsdale Complaint # 000 to the Respondent, Honorable Judge Martinez, Judge of the Scottsdale City Court. The contested Certification is the basis of the Lower Court s jurisdiction in the Cause, designated as Case # R=01-PR-00in Scottsdale City Court and wherein Petitioner is named as defendant therein. Petitioner ultimately requested that the Lower Court order the Clerk of the Scottsdale City Court, under Subpoena, deliver to Petitioner certain information on the amount of Option B submittals the Lower Court had received during the last years. Alternatively, Petitioner sought the same records from Scottsdale s Business Partner, the private corporation / vendor which operates the photo enforcement program and who, upon information and belief, printed and issued the aforesaid Complaint. All Petitioner s requests for said Option B submittals were denied. Respondent s denial of Petitioner s requested Subpoena is attached hereto as Exhibit C. Option B Submittals The system and techniques employed by the Complainant and City of Scottsdale s Business Partner are so unreliable in the attempted identification and matching of photos of drivers allegedly committing offenses that these Complaints actually have an Option B; Declaration Of Non Driver printed on them to allow those misidentified to prove their innocence by introducing a copy of a driver s license or other Government identification into evidence. Option B Submittals Are Documented Evidence Consequently, Option B submittals are proof, by documented evidence, that the person named in the complaint is not the person pictured in the photo attached to the certified Complaint. Furthermore, Option B submittals are documented proof that the certification in a particular action is false. If a wrongly accused defendant can prove he is not

3 1 1 1 the one named in a Citation by showing his drivers licence, then the Complainant, who routinely testifies that (i) she had access to Department of motor vehicle Records and (ii) that she compares the driver licence photo to the person photographed in the alleged infraction, had the exculpatory evidence proving the innocence of each of those wrongly accused and either mis interpreted or never compared said evidence. Either way, the Complainant cannot reasonably base her certification on evidence which she consistently misinterprets or fails to examine. Nor may the Lower Court conceal Complainant s, and the photo enforcement program s, misidentification rate and simultaneously accept Certifications thereunder as true. Charging an Offense under Exculpatory Evidence In a large percentage of the Citations Complainant files in the Lower Court the Complainant is charging an offense actually using the exculpatory evidence to the very charge at issue as cause to reasonably believe a defendant committed an offense. In other words, Complainant is certifying that she had reasonable belief that A committed an offense by allegedly viewing a photo of B driving A s car. Obviously, Complainant cannot Certify a Citation citing reasonable belief of identification based upon exculpatory evidence to the alleged offense. Such a position is contrary to Arizona Law and common sense. Lower Court has Best Evidence The Clerk of the Lower Court is in possession of the Best Evidence, the actual Option B submittals which, by simple arithmetic when compared to the total number of citations issued under the photo enforcement system, provide the rate of misidentification. Lower Court s Own Report Cites High Rate of Misidentifications The Lower Court s own Report (Exhibit B hereto) clearly illustrates that on just 1 State Highway (Loop 1 through Scottsdale), in months, there were over,000 documented cases where the defendants were misidentified under Scottsdale s photo enforcement citation system and techniques. (Note; Not a misprint, Twenty Seven Thousand misidentifications on One road ). Yet, Petitioner is repeatedly denied access to the records of citywide misidentifications and specific information on his accuser s misidentification rate. Certifications under ARS -1A The Complainant in the Action pending in the Lower court has attempted to certify the Complaint under ARS -1. That Statute states in full:

4 1 1 1 A.R.S. -1. Certification of uniform traffic complaint forms; false certification A. Uniform traffic complaint forms need not be sworn to if they contain a form of certification by the issuing officer in substance as follows: "I hereby certify that I have reasonable grounds to believe and do believe that the person named herein committed the offense or civil violation described herein contrary to law." B. A false certification under the provisions of subsection A is perjury. High Rate of Misidentification Invalidates Reasonable Grounds To Believe It seems beyond reproach that if the techniques a Complainant employs to identify and certify have an unreasonably high rate of misidentification, then that Complainant, employing those techniques, could not have reasonable grounds under ARS -1 to certify she believed it was Petitioner who committed a civil violation. Secret Records There is the more than the appearance that the Lower Court is concealing the records of the rate of misidentification from Petitioner when the Lower Court has proof and knowledge that the rate is too high to sustain a Certification. Respondent has failed to exercise discretion which she has a duty to exercise; or to perform a duty required by law as to which he has no discretion. Respondent has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority. The denial of Petitioner s Subpoena Request was arbitrary and capricious and or an abuse of discretion and said denial forms the basis of this Special Action. The following Memorandum of Points and Authorities and the attachments hereto clarify Petitioner s Complaint in higher detail. Memorandum of Points and Authorities Statement of the Issues Denied Subpoena The denied Subpoena is attached hereto as Exhibit A and this reference is

5 1 1 1 made to confirm that the attached denied Subpoena and the arguments contained therein are a part hereof. For all the reasons stated therein the request should of been granted and the Lower Court was obligated to grant the Subpoena under Arizona Law and had no discretion to deny, or abused its discretion in denying the Subpoena. Said arguments now being a part hereof, Petitioner will rest on those points. Lower Court s April, 0 Report However, the issue of the Lower Court s own Report confirming Petitioner s allegations was only discovered after Petitioner s request to access to the Best Evidence was denied. Attached hereto as Exhibit B is a document entitled Scottsdale City Court Loop 1 Photo Enforcement Program Final Report. Said Report bears the Official seal of the City of Scottsdale on the front page and Prepared by Court Administration... April 0, 0" on the last page. The report can be viewed at the Scottsdale city website; ( df ). Some details of the April, 0 Report include; Scottsdale issued, Citations on the Loop 1 between 0/ / 0 and 0/0/0. Of those Citations, 1, Drivers ultimately pled guilty or were found responsible and paid a fine or attended traffic school. The balance of, tickets that did not result in a guilty or responsible verdict were broken into two major groups, the, wrongly accused defendants who were forced to prove their photographic identity and, citations that are categorized in the report as Rule Dismissals. The report states that Rule Dismissal refers to cases with no State action taken nor jurisdiction obtained, so case is dismissed within 1 days of filling. Documented Wrongly Accused =, These,000 people were forced, under what can only be described as the threat of a false prosecution, to prove their photographic identity by furnishing a Government ID to prove the Citation was not true. In all, the Report cites, documented cases of false certifications.

6 1 1 1 Of the, citations that ultimately were adjudicated and the Lower Court has proof of identity one way or the other filed,, ( % ) were misidentification. Rule Dismissals In a typical Photo Enforcement Case, a Citation is mailed to the person named in the certified complaint and that person either waives personal service of the complaint by responding to the Court or, if no response is received, a process server is dispatched to personally serve the named defendant. If the named defendant does not waive service and is not served within 1 days from the date the Citation was filed, Rule dictates that the Citation must be dismissed. No Human Involvement in Certification It seems apparent from the Report that no person actually looks at the photos of defendants and certifies the Citation before Scottsdale s Business Partner s (the photo enforcement vendor) Computer System Certifies and mails the Citations to defendants and files them with the Court. Conversely, if there is Human involvement in the certification process, said humans are so incompetent or the system and techniques employed are so flawed that any Certification resulting from the process is meaningless. Such a theory would explain why,000 were misidentified and another the,000 citations were tossed under Rule. If it is not until the point that a defendant does not appear that a person actually views the photo evidence, then it would not be until that point that a process server would notice that the person named and the person pictured are not the same person (or even the same sex or race).consequently, the vendor and the process server do not attempt to serve that defendant, allowing the 1 days to run under Rule resulting in a dismissal of the citation. This is important to note as these Rule Dismissals would then prove a even higher rate of misidentification than the % rate indicated by the Lower Court s own Report. The only conclusion Petitioner can fathom for,000 misidentifications is that the vendor falsely certifies each ticket with the Complainant s computer printed signature. The wide net of falsely certified citations is undoubtably thrown by the vendor to enhance revenue because the average citizen just mails in the fine amount regardless of who was driving their vehicle. Regardless of the cause of the misidentifications, a system with this high of a rate of abuse and failure cannot reasonably be used to certify a complaint under

7 1 1 1 ARS -1A. The Lower Court s own Report demonstrates that techniques employed under the photo enforcement program are nothing more than a Fishing Expedition. Such techniques are contrary to Arizona Law. ARS -1B defines such techniques as perjury. Scottsdale s Business Partner Scottsdale s Business Partner, the photo enforcement vendor, knows exactly what the rate of misidentification is and, nevertheless, knowingly proceeds with the processing and filing of the false certifications. To even suggest that said vendor does not have a detailed ledger detailing the disposition and the monies expended and collected to the fraction of a penny on each and every Citation certified and mailed is beyond ludicrous. The attached report which carefully breaks down each complaint, even noting the number of appeals, belies any such argument. Yet Petitioners is told there are no records and even if there were, such records are moot to the issue of jurisdiction. Furthermore, the contract between Scottsdale and the vendor call for such detailed accounting, for how else would the vendor be paid out of the monies collected by the lower Court. Said contracts are too voluminous to attach hereto, but are readily available online at the Scottsdale City website. Order To Show Cause Petitioner hereby requests that the Respondent be ordered to show cause why the requested relief should not be granted as per B A.R.S. Special Actions, Rules of Procedure, Rule (c) Conclusions No system of traffic control or revenue generation is worthy of a Court holding its very own records secret. What Court can allow,000 cases of documented misidentifications to flow through the Court while simultaneously denying all attempts by defendants to ascertain the rate of false Certifications? Petitioner had previously argued that; If the Lower Court did not know the rate of misidentification, then it was because the Lower Court did not want to know. Petitioner is floored by the revelation that the Lower Court was aware of the high rate of misidentification at all times and simultaneously feigned ignorance of said rate and the nexus thereof to the invalidation of the false certifications. Under

8 1 1 1 these circumstances, Petitioner has no other remedy except this Special Action. The conduct of the Lower Court and the photo enforcement vendors, seemingly acting in complicity to knowingly file and accept false certifications, proves that the zest for profits does not mix with Justice. Scottsdale, their Business Partner / vendor and the Lower Court have had over years to perfect a photo enforcement system but, ultimately, could not preform the impossible. The Courts can not be privatized. Any attempt to do so are in direct conflict with the purposes of the Courts and the reason for their very existence. The end result of the commercialization of the Lower Courts can only fairly be defined as perjury, complicity, mail fraud, and racketeering.,000 separate counts of each, on One Highway alone. In the event Petitioner s Subpoena had been granted for Option B submittals citywide, then in all likelihood the known number on documented misidentifications would be in the Hundreds of Thousands, not the herein proven Tens of Thousands. Justice demands that these abuses which are inherent to the photo enforcement for profits system be put to a end. What price can be put on Justice? How much for the Courts very integrity? In Scottsdale City Court the answer seems to be a simple mathematics problem. First, take Scottsdale s cut of the photo enforcement tickets in the Report attached as Exhibit B, the Princely sum of $,1,.00, and divide that number by the number of falsely accused, citizens necessarily misidentified to incur such a profit. The answer is : Each of the said falsely accused Defendant s civil rights were profiteered by the Lower Court for $.0. Relief Requested Petitioner respectfully requests that this Honorable Court grant Judgment in Petitioner s favor; (i) Ordering the Lower Court and Respondent to Dismiss the Citation naming Petitioner for lack of jurisdiction, and (ii) Restraining the Respondent and the Lower Court from; (a) prosecuting complaints under any photo evidence for profit system, and (b) whatever further relief or action this Court deems is required under the exceptional circumstances described herein. Alternatively, Petitioner requests that this Court grant Judgment ordering the

9 1 1 Lower Court to grant the attached Subpoena requesting the Option B submittals and staying the proceedings in the Lower Court until such time as the Clerk makes the information available to Petitioner under said Subpoena. Furthermore, Petitioner respectfully submits that this Court has ample evidence of the fraud and abuse under the photo enforcement system to issue a Temporary Restraining Order which restrains any Lower Court in Maricopa County from accepting Certifications on photo enforcement Citations until such time as each Lower Court proves, by submission of Option B and other records, that the rate of misidentification is sufficiently low to reasonably sustain a Certification under ARS -1. Petitioner requests that this Honorable Court do so. The abuses occurring in the Lower Courts have brought the Law into disrepute and must not be allowed to continue. th Verified, sworn and RESPECTFULLY SUBMITTED this day of July 0 by; 1 David H. Cain

10 1 1 1 Certificate of Compliance This Petition's line spacing uses a proportionately spaced typeface, Times New Roman, at 1 point size. The word count is,. I, David H. Cain, on July 0 hereby certify compliance as stated above and state that I have mailed a copy of this Complaint, together with Exhibits A, B and C to; Deborah Robberson. City Attorney Scottsdale City Court th 00 N Street Scottsdale, Arizona Hon. Judge M. Martinez Scottsdale City Court th 00 N Street Scottsdale, Arizona