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

Transcription

1 0 0 David H. Cain Scottsdale, Arizona 0 Telephone Facsimile Appearing Pro Per IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA DAVID H. CAIN, Petitioner Special Action v. No. Hon. Judge M. Martinez, LC Judge of the Scottsdale City Court of the State of Arizona, Respondent, and the Reply STATE OF ARIZONA, the real party in interest Petitioner files this Reply to the State of Arizona, the Real Party in Interest s July, 00 Response as per Rule (e) Special Actions, Rules of Procedure. The State, in their response, moves that Petitioner s requested relief be denied because (i) This is a discovery issue therefore this Court lacks jurisdiction except on appeal, (ii) that Respondent did not abuse her discretion, and (iii) Petitioner did not comply with the rules set forth pertaining to petitions. Petitioner replies as follows:

2 0 0 This is not only (i) a discovery issue. The Lower Court is accepting certifications on citations that are proven to be unreliable by the Court s own reports and records. The Lower Court has (ii) no discretion to ignore the law. As to (iii) complying with the rules, the State s own Response fails to comply with Rule (e) Special Actions, Rules of Procedure ( The petition, response and any reply must each be accompanied by a certificate of compliance... ). Must said Response now be struck under the State s theory? The following Memorandum of Points and Authorities elaborates on the first two issues and leaves frivolities to the State. Memorandum of Points and Authorities Petitioner was served with a document that states at the top SCOTTSDALE POLICE DEPARTMENT and Presiding Judge: B. Monte Morgan, signature on file and Arizona Traffic ticket and Complaint - Automated traffic Enforcement. Said document contains an unsworn, computer signed oath which states I hereby certify that I have reasonable grounds to believe, and do believe, based on my examination of digital images and data associated with this [alleged] violation, that the person named herein committed the civil traffic violation above. Arizona Supreme Court Opinion on Oaths in Uniform traffic Tickets (HINT: Oaths Must Be Truthful) State v. Purcell 0 Ariz. 0, P.d The case State v. Purcell, 0 Ariz. 0, P.d is very illuminating to the issues in the instant action. Here the Arizona Supreme Court discusses the history of uniform traffic tickets and unsworn oaths contained thereupon. In an Appeal the Court was called upon to decide if the lower court was correct in quashing the complaints for lack of jurisdiction upon the grounds that the complaints were not sworn to, and that the

3 0 0 Fourth and Fourteenth Amendments to the United States Constitution would be violated if he were brought to trial on an unsworn complaint. The Court in relevant parts stated; It is beyond cavil that a valid complaint is the basis of the jurisdiction of a criminal case by any court. It follows that in our system of courts, in which appeals from justice and city courts to the superior court result in trials de novo, the basis of the superior court's jurisdiction to try the case is the complaint made in the court from which the appeal was taken. (emphasis added) 'A. Complaints stating misdemeanor charges... need not be sworn to if they contain a form of certification by the arresting officer in substance as follows: 'I hereby certify that I have reasonable grounds to believe and do believe that the person cited herein committed the offense described herein contrary to law.' 'B. A false certification under the provisions of subsection A shall constitute perjury.' The Supreme Court broke their analyses of Purcell into two parts. Part State v. Purcell The first part dealt with the complaint in that particular case being utilized as a Post Arrest Complaint to be used After an Arrest.

4 0 0 Defendant contends that there is a Fourth Amendment right to have prosecutions begun by a sworn complaint. This amendment, of course, refers to the 'right of the people to be secure in their persons' against unreasonable searches and seizures, and admittedly this amendment is binding upon the states. Defendant argues, and we believe correctly, that no warrant of arrest may issue without a sworn complaint approved by a magistrate. But it is here that defendant overlooks the double function of a complaint. It is used, as described above, to interpose the judicial decision of a magistrate between the complaining witness and the accused, to insure that there is probable cause for the arrest. Used in that way, a complaint must be sworn to. But the complaint (in this case, the traffic ticket) has another function. It is often issued After an arrest, in which case its function is to give jurisdiction to the traffic court or justice of the peace, and to give the defendant an explanation of the charges against him. With this background, several observations seem pertinent. First, the traffic complaint is a post-arrest complaint and is not a matter of substantive constitutional law. We think it is merely a matter of procedural law and is not of constitutional stature. As was said in the case of Gaither v. United States, U.S.App.D.C., F.d 0 (), where there was a failure to swear to the complaint before a proper official, 'The minimal function of the complaint as filed After arrest, leaves us unable to discern any prejudice to appellants...' (Emphases added). In short, where the complaint forms the basis of a warrant of arrest, a failure to swear to it may be of constitutional stature, and the defect may be fatal, but a post-arrest unsworn complaint is something entirely different. State v. Purcell, supra (emphases added)

5 0 0 State v. Purcell Part Conclusion In a normal uniform traffic citation, an Officer pulls over the defendant and places him under arrest. After the Officer fills in and signs the uniform traffic complaint the defendant signs, promising to appear. The officer in most cases then releases the defendant from arrest upon said promise to appear. The complaint in the instant case and every photo enforcement case is not made post arrest. In the Instant action the complaint is the ONLY charging document. Surely, such a document must be backed by a reasonable belief that the named defendant committed the offense. Furthermore, Part of Purcell appears to indicate that if a complaint is not issued post arrest then that complaint must be sworn. Part of State v. Purcell The Supreme Court then went on to the second part of their examination of uniform traffic complaints and stated; Second, as noted above, the officer's certification of the complaint is done under the penalty of perjury. No more can be accomplished by an oath. The penalty of perjury and its deterrent effect on an affiant are exactly the same as in the case of certification. The Constitution does not take account of such quibbling. (Emphases added) It was only after reasoning that because The penalty of perjury and its deterrent effect on an affiant are exactly the same as in the case of certification that the Supreme Court ruled that the oath on a uniform traffic citation is sufficient to bring a defendant under the jurisdiction of the court ;

6 0 0 We hold that the uniform traffic ticket is valid and that the rules creating it are constitutional, measured by both the State and Federal Constitutions. In the event that the Supreme Court had evidence such as the evidence now before this Court demonstrating that a large percentage of the certifications were perjured under commercial procedures in flagrant disregard for the right of the people to be secure in their persons' against unreasonable searches and seizures and that such records are held secret, there is no possibility that such a business plan could have been held valid. To hold otherwise invalidates both parts of State v. Purcell and renders the words certification, certify, believe and reasonable grounds throughout the Arizona Revised Statutes, the Rules of Civil Procedure, and the United States Constitution superfluous. Furthermore, the deterrent effect on an Affiant is not exactly the same as in the case of certification as the Lower Court accepts these false certifications and does not prosecute same. Sweeping,000 misidentifications under the rug without even one hearing on allegations of perjury does not have a deterrent effect on an Affiant. Instead of referring perjury charges to a Prosecutor the Lower Court encourages such flagrant abuses by actually denying all attempts to ascertain the actual rate of perjury occurring under the business plan in effect in the Lower Courts. Such a business plan is in direct contravention of the rulings in State v. Purcell and can not be condoned. Any complaint or conviction rendered under

7 0 0 such a business plan is void and fails to confer jurisdiction to the Court. Business model in effect in Lower Court Success = Conviction Petitioner continually makes reference herein to the techniques and system of schemes and artifices employed by the partnership of the photo enforcement vendor and the Lower Court as a business model. Petitioner finds such references are the only plausible description thereof. The Lower Court would never take such actions on its own prerogative. Following are several quotes from the Lower Court s Report attached hereto as exhibit A ; On-going collaboration is essential among the multi-disciplinary partners such as law enforcement, vendors, transportation, public information/outreach, and the legal department. Case and citation volumes can create efficiencies and economies of scale. Vendor contracts (content and structure) dictate how processes, statistics, metrics and finances need to be tracked and reported. The creation of business rules occurs in the program planning phase. Prepare cost analysis process and measures to evaluate program performance. And finally, Petitioner s personal favorite; Partner the presiding judge and court administrator on program

8 0 0 philosophy. Partner the presiding judge...on program philosophy? Petitioner respectfully submits that no Judge partnered in a business program philosophy can be impartial. At the very least, Petitioner should be allowed to subject said Judge to the same hour amount of partnering on Constitutional Principles and a competing program philosophy. Subjecting the Judge to highly paid lobbyist s propaganda, day after day, who have the run of the Courthouse and the Clerks Office and who have millions and millions and millions of Dollars at stake cannot be condoned under Arizona Law. It is obvious from the Lower Court s own Report that the vendor is running a business in partner ship with the Lower Court. This is the definition of lack of impartiality. Any motion that might expose, harm or hinder the Lower Courts business partner s (such as Petitioner s Denied Subpoena) is rigorously denied. No Court Officer, Sworn to uphold the United States and Arizona Constitutions can lawfully or morally condone any of the following; A known high rate of misidentification, A known high rate of false certifications, Not one referral of charges to a Prosecutor despite tens and tens of thousands of documented perjured certifications, Partnering of the Judge in a business program philosophy, Business rules and cost analyses setting Court procedures, Acceptance of testimony from individuals who have thousands of cases of documented false testimony in the very same Court, Secret evidence unavailable under subpoena,

9 0 0 And the hundreds of schemes and artifices necessary to embed a profitable business plan into the judiciary branch. Is Petitioner the only party with eyes to see? The vendor dictates... how statistics need to be tracked and reported? Business rules? The vendor dictates? Partnering of the Judge? Cost analysis... to evaluate performance? The end result of the Commercialization of the Lower Courts can only fairly be defined as perjury, complicity, mail fraud, and racketeering. Petitioner has submitted proof of,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. th Unbelievably, the Lower Court s Repot (Exhibit B, Petitioner s July, 00 Complaint) states; Cases have successful disposition status if: defendant pled and paid, was found responsible or completed driving school. The Lower Court is defining success as a conviction. Where does Justice fit into the lower Court s equation? Are the, citations cited in the Report as dismissed by Court Order then failures? Is a successful adjudication only a conviction?. Can a Court be concerned with the success of convictions and be impartial? This Honorable Court knows the answers to these questions and must act to stem such abuses Conclusion

10 0 0 No mater what rules the Courts are making up for themselves, no partnership may submit, false certifications on complaints that are labeled Scottsdale Police Department and Scottsdale City Court with a Judge Name thereupon and not face prosecution. No mater what rules the Courts are making up for themselves, no Court can accept, false certifications under from a partnership and knowingly continue to accept additional testimony from the same partnership to this very day. Not in Arizona, Not in the United States of America. Less our Courts fail us. The Fact that the, false accusations are in the Lower Court s Report and are not even commented on in the Report shows the mentality of the Lower Court. The program should of been halted as a dismal failure at that very point in time (or much earlier under similar earlier evidence). Instead, the lower Court touts the program as a success to be emulated. The Fact that the, false accusations are in the Lower Court s Report and are not even commented on in the June, 00 Response shows the mentality of the Real Party in Interest. Does the State move to expose the fraud that Petitioner has exposed? No, the State moves to continue to hide the true extent of the fraud being perpetrated on Hundreds of Thousands of Arizona Citizens. The State moves to dismiss on technicalities. Petitioner cited little case law because the fraud and complicity being perpetrated by the photo enforcement vendor, aided by the blind eyed Lower Court, is so obvious that any person told of,000 misidentifications can only gasp in disbelief. Was the Respondent ignorant of the high rate of misidentification occurring in her Court? If so, pure ignorance, at some point, surely short of tens of thousands, becomes negligence. At what point did Respondent have reason to know. Petitioner suggests that,000 cases of false accusations and perjury were more than sufficient for the Lower Court to have reason to know. If it is not the duty of the Lower Court

11 0 0 to assess the validity of testimony received in its very own Court, then who s duty is it? If it is not the duty of the Lower Court to search it s own records for perjury once the issue is raised, then who s duty is it? Perhaps Petitioner has it wrong. Perhaps the Lower Court is a witless participant in perjured complaints blinded by the bright lights of efficiencies and economies, never becoming cognizant of the abuses perpetrated by the fraudulent acting vendor / partner. Perhaps now the vendor / partner has destroyed all evidence received as Option B submittals. Was Respondent cognizant of the high rate of misidentification occurring in the Lower Court? Such a case would be an entirely different matter altogether and would raise the specters of perjury, complicity, knowingly accepting false testimony and a host of other offenses. All such cases render the complaint void. When Respondent was confronted with the issues of misidentification and perjury in the Lower Court and records were sought under subpoena, what did Respondent do? (A) Rule that said records are moot and hold them secret. (B) Deny the existence of Option B Documented Evidence. (C) Feign ignorance of the importance of a certification on a citation. (D) Fiat justitia ruat caelum. Any Officer choosing A, B and C simultaneously should, in Petitioner s opinion, be disbarred. Such an Officer will certainly personally face countless Civil lawsuits for continuing to act after it was clear that the Court had no jurisdiction except to dismiss. Those Officers whose Sworn Duty is to enforce the Laws of Arizona who now knowingly remain silent and actionless in the face of wide spread perjury, complicity, mail fraud and racketeering must enforce the Law. "All that is necessary for evil to triumph, is for good men to do nothing." -Edmund Burke.

12 0 0 Petitioner respectfully submits the following; That Petitioner can not be brought under the Court s Jurisdiction under a falsely certified citation. That the Lower Court can not be impartial when it s definition of a successful adjudication is a conviction. That the Lower Court must dismiss the instant action when it s own reports prove the certifications are fraudulent. That, under Purcell, Petitioner can not be brought under the Court s jurisdiction pre arrest with an unsworn certification. That Respondent has no discretion to deny discovery when Respondent had the personal knowledge and Report that proved Petitioner s allegations were true. That, under Purcell, an oath not made under penalty of perjury and its deterrent effect fails to bring a defendant under the Court s jurisdiction. That,000 false accusations is contrary to the right of the people to be secure in their persons' against unreasonable searches and seizures. Under the circumstances present in the instant action, namely the Respondent acting without or in excess of Respondent s Jurisdiction, the appearance that the Lower Court knowingly accepts false certifications, and the blocking of all attempts to ascertain the extent of the false certifications, Special Action is the only course available to Petitioner. Less this Honorable Court act, Petitioner will be subjected to a trial where the known falsely certified complaint is verified by perjured testimony by the complainant which is to be knowingly accepted by Respondent to reach a predetermined successful adjudication of guilty. In their Response the State completely sidesteps the issues of false certifications and the knowledge of the rate of misidentification by the Lower Court, the complainant and the vendor. The cases cited by the State on page of their Response compel this Court to grant the relief requested in Petitioner s

13 0 0 Complaint. The Lower Court s decisions are manifestly unreasonable and based upon untenable grounds therefore Special Action is warranted. For all the foregoing reasons Petitioner humbly requests that the relief th requested in Petitioner s July,, 00 Complaint be granted and the State s Motion to, essentially, conceal and dismiss be denied. 00 by; Verified, Sworn and RESPECTFULLY SUBMITTED this day of July David H. Cain Certificate of Compliance This Petition's line spacing uses a proportionately spaced typeface, Times New Roman, at point size. The word count is,. I, David H. Cain, on July 00 hereby certify compliance as stated above and state that I have mailed a copy of this Reply to; Kenneth M Flint, Prosecutor Scottsdale City Court th 00 N Street Scottsdale, Arizona The Honorable Marie Martinez, Respondent Scottsdale City Court th 00 N Street --

14 0 Scottsdale, Arizona Arizona Attorney General Terry Goddard West Washington Street Phoenix, Arizona 00 Andrew Thomas Maricopa County Attorney 0 West Jefferson, ste 00 Phoenix, Arizona