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HIRSCHFELD'S CITATION.TXT (PART E)

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  • nolawyer@globalcrossing.net
    from: www.nolawyer.com Jacobsen s affidavit as to the hardship imposed on his enterprise by the effect of the administrator s actions has not been refuted.
    Message 1 of 1 , Jun 6, 2003
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      from: www.nolawyer.com

      "Jacobsen's affidavit as to the hardship imposed on his enterprise by
      the effect of the administrator's actions has not been refuted. The
      balance of hardships tips sharply in his favor. Where the precious
      26
      (First Amendment) right of freedom of the press is at issue, the
      prevention of access to a public forum is, each day, an irreparable
      injury; the ephemeral opportunity to present one's paper to an
      interested audience is lost and the next day's opportunity is

      different. Raising a serious question of constitutional dimensions,
      he has met the conditions necessary to secure a preliminary
      injunction." Jacobsen v. U.S. Postal Service, 812 F.2d 1151 (9th Cir.
      1987)

      Hon. Robert E. DeMascio, Judge, U.S.D.C. E.D. Michigan, Southern
      Div., matter 85CV7458DT, Committee to End Racism v. Mansour


      "...(the Plaintiffs contend)...that (the statute) creates racial
      discrimination without reasonable basis and thus results in
      arbitrary, invidious racial discrimination, violative of the Equal
      Protection Clause of the Fourteenth Amendment...

      "... (the Defendants) argue that the right of adoption is not even a
      natural right, but exists only when created by statute, and we should
      therefore defer to the wisdom of the Louisiana legislature and make
      no constitutional inquiry into the State's determination that it
      would not be in the child's best interest to be adopted by parents of
      a different race."

      "Any statute containing racial classifications is `constitutionally
      suspect,' Bolling v. Sharpe, 347 U.S. 497,499, 74 S.Ct. 693,694, 98
      L.Ed. 884; see McLaughlin v. Florida, Loving v. Virginia...."

      "Cognizant of the realities of American society, this Court would
      agree that an interracial home in Louisiana presents difficulties for
      a child, including the possible refusal by a community to accept the
      child, and other community pressures, born of racial prejudice, on
      the interracial family. A determination of reasonableness of racial
      classification in this statute would seem to follow recognition of
      such difficulties, but we regard the difficulties inherent in
      interracial adoption as justifying consideration of race as a
      relevant factor, and not as justifying race as the determinative
      factor.

      "(Defendants) do not urge, nor could they successfully do so, that
      given the alternatives of institutional life, foster home care or an
      interracial family home, the institutional life or foster home care
      would prevail in all instances over the interracial family in serving
      the best interests of the child.

      "When the advantages of family life in promoting personality
      development and social adjustment are considered, the disadvantages
      of interracial adoption cannot be said to outweigh in all cases the
      advantages of a home and family life to a child whose only
      alternatives are institutional life or foster home care. It is
      obvious, therefore, that the Louisiana statute making race the
      decisive factor in adoption subordinates the child's best interests
      in some circumstances to racial discrimination. The statute thus
      promotes not the child's best interests but only the integrity of
      race in the adoptive family relationship.

      "We have concluded that the Louisiana adoption statute cannot be
      justified under equal protection scrutiny. The necessity of racial
      matching of parent, or parents, and child in adoption to promote the
      best interests of the child, and the reasonableness of that racial
      classification in light of that purpose cannot be sustained. The
      plaintiffs are entitled to the declaratory and injunctive relief
      sought." Compos v. McKeithen, 341 F.Supp. at 264 (E.D.La. 1972)

      In Drummond v. Fulton County Dept. of Family and Children's Services,
      27
      563 F.2d 1200 (1977)in that the District Court found that

      "race was not used in an automatic fashion to reject foster parents'
      application to adopt," Drummond id. at 1204.

      "The only cases which have addressed this problem indicate that,
      while the automatic use of race is barred, the use of race as one of
      the factors in making the ultimate decision is legitimate." Drummond
      id. at 1205.

      "Proof that the decision by the Village was motivated in part by
      racially discriminatory purpose would not necessarily have required
      invalidation of the challenged decision. Such proof, however, would
      have shifted to the Village the burden of establishing that the same
      decision would have resulted even had the permissible purpose not
      been considered." Village of Arlington Heights v. Metro. Housing
      Dev., 97 S.Ct. 555 (1977)

      "The question, however, is whether the reality of private biases and
      the possible injury they might inflict are permissible considerations
      for removal of an infant child from the custody of its natural
      mother. We have little difficulty in concluding that they are not.
      The Constitution cannot control such prejudices but neither can it
      tolerate them. Private biases may be outside the reach of the law,
      but the law cannot, directly or indirectly, give them effect. `Public
      officials sworn to uphold the Constitution may not avoid a
      constitutional duty by bowing to the hypothetical effects of private
      racial prejudice that they assume to be widely and deeply held.'
      Palmer v. Thompson, 403 U.S. 217, 260-261, 91 S.Ct. 1940, 1962-1963,
      29 L.Ed.2d 438 (1971)" Palmore v. Sidote, 466 U.S. 429, 104 S.Ct.
      1879, 80 L.Ed.2d 421 (1984).

      One or more of these types of classifications were certified in the
      following-listed cases, including such foster or adoptive children by
      and through their foster parents:
      Child v. Beame, 412 F. Supp 593 (S.D.N.Y., 1976);
      Smith v. Organization of Foster Families for Equality and Reform
      (OFFER) et.al, note 7, 431 U.S. at 822, 97 S.Ct. at 2098(1977);
      Wilder v. Bernstein, 499 F.Supp. 980 (S.D.N.Y. 1980);
      Hennessey v. Wa. Dept. of Social & Health Services, 627 F.Supp. 137
      (E.D.Wash. 1985)
      Compos v. McKeithen, 341 F.Supp.264 (E.D.La. 1972)
      Player v. Alabama Dept. of Pensions & Security, 400 F.Supp. 249
      (1975).

      Stipulation for Settlement and Joint Motion for Order Confirming
      Settlement, Civil Action 86-6682-CIV-Nesbitt, Kay, et.al., v. William
      Page, Secretary of Florida Dept. of Health and Rehabilitative
      Services, U.S.D.C., S.D. Fl., Ft. Lauderdale District.

      YOUNGER FEDERAL ABSTENTION:

      Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971), was an attempt
      to prospectively enjoin a state criminal prosecution, and does not
      provide an appropriate basis for abstention here. In concurrence,
      Justices Stewart and Harlan stated:

      "The questions the Court decides today are important ones. Perhaps as
      important, however, is a recognition of the areas into which today's
      holdings don not necessarily extend. In all of these cases, the Court
      deals only with the proper policy to be followed by a federal court
      when asked to intervene by injunction or declaratory judgment in a
      criminal prosecution which is contemporaneously pending in a state
      court.

      ".... And since all these cases involve state criminal prosecutions,
      we do not deal with the considerations that should govern a federal
      28
      court when it is asked to intervene in state civil proceedings,
      where, for various reasons, the balance might be struck differently.
      (Note 2)

      "Note 2. Courts of equity have traditionally shown greater reluctance
      to intervene in criminal prosecutions than in civil cases. (citations
      omitted) The offense to state interests is likely to be less in a
      civil proceeding. A State's decision to classify conduct as criminal
      provides some indication of the importance it has ascribed to prompt
      and unencumbered enforcement of its law. By contrast, the State might
      not even be a party in a proceeding under a civil statute." Younger
      v. Harris, id., 401 U.S. at 56,57, 91 S.Ct. at 756, 757.

      The Younger Court specifically distinguished its facts and narrowed
      its scope from the decision in Dombrowski v. Pfister, 380 U.S. 479,
      14 L.Ed.2d 22, 85 S.Ct. 1116 (1965), which may be a more appropriate
      standard herein, affirming 42 U.S.C. 1981 et.seq. exercise of
      jurisdiction regarding racially biased state action.

      In reversing a Federal Court Younger abstention dealing with
      "administrative ratemaking", the Supreme Court stated as follows:

      "This Court has expanded Younger abstention beyond criminal
      proceedings, and even beyond proceedings in courts, but never to
      proceedings that are not "judicial in nature."

      ".... it has never been suggested that Younger requires abstention in
      deference to a state judicial proceeding reviewing legislative or
      executive action. Such a broad abstention requirement would make a
      mockery of the rule that only exceptional circumstances justify a
      federal court's refusal to decide a case in deference to the States."
      New Orleans Public Service, Inc. v. Council of the City of New
      Orleans, et.al., 491 U.S. 350; 109 S.Ct. 2506; 105 L.Ed. 2d 298
      (1989).

      There is, regarding the thus far named Plaintiffs, and arguably, the
      class(es) to which they belong, no ongoing state judicial proceeding
      with which the Federal Court's injunctive relief would interfere.

      "...there is.... no doctrine requiring abstention merely because
      resolution of a federal question may result in the overturning of a
      state policy." Zablocki v. Redhail, 434 U.S. 374, 380, n.5., 98 S.Ct.
      673, 54 L.Ed.2d 618 (1978) (A Federal case, incidentally, which
      involved Domestic Relations issues including child support and the
      right to marry).

      Neither the existing Juvenile Dependency actions nor the anticipated
      Juvenile Severance (of parental rights) actions in Maricopa County
      Superior Court are fora in which the unconstituionality of the ADES
      administrative Policy number 5-65-09 may be properly placed at issue.

      "D. Notice of the review and the right of participation in all
      proceedings under this title pertaining to a child in foster care,
      shall be provided by the juvenile court by certified mail unless the
      court determines that another notification process is more
      appropriate. Such notice shall be provided to:

      "2. Any foster parents in whose home the child resided within the
      last six months or resides at present, except for those foster
      parents who maintain a receiving foster home."

      "It is no answer that the State has a law which enforced would give
      relief. The federal remedy is supplementary to the state remedy, and
      the latter need not be first sought and refused before the federal
      one is invoked." Monroe v. Pape, 365 U.S. 167 at 503, 5. L.Ed.492 at
      503, 81 S.Ct. 473 (1961) 29

      PULLMAN FEDERAL ABSTENTION

      Abstention under the doctrine of Railroad Commission of Texas v.

      Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.971 (1941) is
      generally held to be possible when there is a state statute which is
      vague or unclear, meriting a review and clarification by the State
      Court system.

      Moreover, Defendants have failed to demonstrate, in requesting
      Pullman abstention, the availability of a State Court mechanism for
      dealing with the substantial federal constitutional issue raised
      herein, nor with the urgent need to protect the class(s) of
      Plaintiffs herein defined.

      McMillan v. Goleta Water District, 792 F.2d 1453 (1986): The Ninth
      Circuit found that the District Court did not abuse its discretion by
      failing to abstain under Pullman because it found that a State Court
      ruling on the issues (Agins. v. City of Tiburon, 24 Cal.3d 266, 157
      Cal. Rptr 372, 598 P.2d 25 (1979)) did not dispose of the Federal
      issues, and indeed created a judicial vacuum in which the second and
      third Pullman criteria could not be satisfied.

      "However, a federal court need not abstain merely because there
      exists the abstract possibility that state courts might render
      adjudication of the federal question unnecessary. Hawaii Housing
      Authority v. Midkiff, 467 U.S. at 237, 104 S.Ct. at 2327. See also
      Midkiff v. Tom, 702 F.2d at 789-90, n.1. Consequently, the district
      court did not abuse its discretion by failing to abstain." McMillan
      v. Goleta Water District, id at 792 F.2d 1459.

      Suspension of Federal Proceedings to allow State Courts to make
      certain decisions in certain cases, along the lines suggested by
      Louisiana Power & Light v. City of Thibodaux, 360 U.S. 25, 79 S.Ct.
      1070, 3 L.Ed.2d 1058 (1959) is impractical, because of the continuing
      flow of children through various stages of the system.

      BURFORD FEDERAL ABSTENTION

      Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424
      (1943). Burford abstention has been said to apply to State
      Administrative proceedings, rather than judicial proceedings. It is
      invoked when there is likelihood of a "multiplicity of review" in
      numerous venues of the State Court system, and where the State has
      therefore consolidated review of administrative orders in a single
      authorized State Court venue.

      DOMESTIC RELATIONS ABSTENTION
      The Domestic Relations Abstention Doctrine raised by Defendants
      citation of Csibi v. Fustos, 670 F.2d 134 (9th Cir., 1982) is
      narrowly applied only to cases arising under Diversity Jurisdiction,
      and even more narrowly, Diversity cases in which the Federal Court
      would actually establish or modify the "relationship of husband to
      wife, or parent to child."

      "In a footnote, the district court stated that it arguably did not
      have subject matter jurisdiction because the factual issues are
      `within the ambit of those domestic relations matters which federal
      courts have consistently declined to consider on their merits.'
      Alsager v. District Court, 384 F.Supp at 650 n.3. We believe this
      misconstrues the claims being made by the Alsagers. As discussed
      above, the Alsagers do not challenge the substantive findings under
      the Iowa standards. They challenge the standards themselves. And of
      course, federal courts may and do entertain constitutional attacks on
      a state's domestic relations laws. See e.g. Sosna v. Iowa, 419 U.S.
      393, 95 S.Ct 553, 42 L.ed.2d 532 (1975); Loving v. Virginia, 388 U.S.
      1, 87 S.Ct. 1817, 18 L.Ed. 2d 1010 (1967)." Alsager v. District Court
      of Polk County, Iowa (Juvenile Division, 518 F.2d 1160 (1975).

      Csibi v. Fustos was decided by the Ninth Circuit during an early
      1980's period when the Ninth Circuit deviated in its abstention
      policy from the courts of the 2nd, 4th, 5th, 7th and District of
      Columbia Circuits, in declaring that Federal Courts lacked
      jurisdiction of any case even remotely relating to Domestic
      Relations.

      A petition for Certiorari was sought in the U.S. Supreme Court in
      1982, in an attempt to have the high court resolve the conflict among
      the Circuits on this issue. Hirschfeld v. Dreyer, 464 U.S. 816, 104
      S.Ct. 74, 78 L.Ed. 2d 87 (Cert. Den., 1983), 692 F.2d 763. The case
      had wended its way from this very District Court, through the Ninth
      Circuit.

      In 1985, the Ninth Circuit reversed its earlier, conflicting
      abstention position as had been stated in Csibi v. Fustos, id., and
      decided that Diversity Tort Suits sounding in "Domestic Relations"
      were jurisdictionally permissible, so long as they did not actually
      award or modify child custody. McIntyre v. McIntyre, 771 F.2d 1316
      (9th Cir. 1985).

      "In abstention cases the district court must exercise its
      jurisdiction within the narrow and specific limits prescribed by the
      particular abstention doctrine invoked. There is no discretion to
      abstain in a case that does not meet the abstention requirements. C-Y
      Development Co. v. City of Redlands, 703 F.2d 375,377 (9th Cir.
      1983)" McIntyre v. McIntyre, id., 771 F.2d at 1319

      Also in 1985, a District Court in the Eastern District of Washington
      ruled Domestic Relations Abstention did not apply to a Federal
      Question suit against a State Dept. of Social Services.

      "In this action, plaintiffs seek redress for alleged violations of
      their constitutional rights. Plaintiffs do not challenge the
      competency of the state court in settling a domestic dispute. Nor is
      this an area which is particularly suited to state regulation and
      control. Cf. Csibi at 137. In this case, the subject of domestic
      relations is peripheral to the issues presented. Federal courts are
      not ousted of their jurisdiction merely because the suit arises in a
      domestic relations context. Elam v. Montgomery County, 573 F.Supp.
      797 (S.D. Ohio 1983). Accordingly, I hold that this court does have
      jurisdiction....." Hennessey v. State of Washington, Department of
      Social and Health Services, 627 F.Supp. 137 (E.D. Wash. 1985).

      STANDING OF THE PLAINTIFFS
      Defendants have cited Chrissy F. by Medley v. Miss. Dept. of Public
      Welfare, 883 F.2d 25 (5th Cir. 1989) to somehow support their
      position that the Foster Parent Plaintiffs herein should be denied
      standing as "next friends" of the Plaintiff Children because of a
      hypothetical "conflict of interest.".

      But in Chrissy, the Fifth Circuit Court of Appeals found only that
      there was a definite conflict between Chrissy and the natural parent
      who had abused her. The court was only able to speculate as to
      whether or not Donna Medley, who had been appointed Guardian ad Litem
      by a court of a state different than the forum state, would
      adequately represent Chrissy's interests. The Court of Appeals
      reversed the District Court's dismissal, and remanded so that the
      District Court could in its discretion make the determination.

      "We do not hold that Medley should or should not be appointed
      Chrissy's representative in this litigation. It is within the
      31
      district court's discretion to determine Chrissy's need for
      representation and who may best fill that need. We merely hold that
      the district court must either appoint a guardian ad litem or next
      friend who qualifies under Mississippi law or enter a finding that

      Chrissy's interests are adequately represented without such an
      appointment." Chrissy, id., 883 F.2d at 27.

      Defendants' citing of dictum from Lenhard v. Wolff, 443 U.S. 1306,
      1312 (1979) is particularly ludicrous, since that case involved a
      last-ditch attempt by court-appointed attorneys to stay the execution
      of a convicted murderer, while he himself asserted a "suicidal"
      demand to be executed.

      Ankenbrandt v. Richards, 112 S.Ct. 2206 (1992) (Affirmining Burrus
      abstension doctrine but limiting it to custody and divorce granting.

      Rule 53, ARCP has indeed been invoked in Divorce matters, but
      undersigned counsel is unable to find any appellate precedent for
      turning the psychological evaluation permitted under ARS 25-334(B)
      and ARS 25-335, into an independent judicial proceeding.

      "B. The court may seek the advice of professional personnel, whether
      or not employed by the court on a regular basis. The advice given
      shall be in writing and shall be made available by the court to
      counsel, upon request, under such terms as the court determines.
      Counsel may examine as a witness any professional personnel consulted
      by the court, unless such right is waived." ARS 25-334(B)

      "A. In contested custody proceedings, and in other custody
      proceedings if a parent or the child's custodian so requests, the
      court may order an investigation and report concerning custodial
      arrangements for the child. The investigation and report may be made
      by the court's social service agency, the staff of the juvenile
      court, the local probation or welfare department, or a private agency
      employed by the court for the purpose." ARS 25-335(A)

      The usual Rule 53 invocation concerns complicated property and
      financial matters, in which the "Master" deals with valuation of
      professional practice, management pendente lite of large or
      complicated estates, and the like. Hanner v. Hanner, 95 Ariz. 191
      (1964).
      The Court may take judicial notice that the appointment of a
      psychologist as an expert and advisor, from the approved list is
      commonplace in Maricopa County Superior Court. However, the peculiar
      request by Petitioner should be viewed in the context of ARCP Rule
      53(b):

      "A reference to a master shall be the exception and not the rule.
      Save in matters of account, a reference shall be made only upon a
      showing that some exceptional condition requires it." ARCP Rule 53(b)

      AZ:Uniform Rule IVD No discovery motion will be considered or scheduled
      unless a separate statement of moving counsel
      is attached thereto certifying that, after personal consultation and
      good faith efforts to do so, counsel have been unable to
      satisfactorily resolve the matter."

      "The court should not treat child custody as a penalty or reward for
      a parent's conduct.`Annest v. Annest, 49 Wash. 2d 62, 64, 298 P.2d
      483, 484 (1956)' Montoya v. Superior Court, 173 Ariz. 129,132; 840
      P.2d 305 (App. 1992), 19 FLR 1101 (1/5/93).
      32
      Further, the allegations of Petitioner that Respondent must reply to
      the questions in issue is wrong. A participant in a custody dispute
      does not forfeit his constitutional rights against self
      incrimination. Montoya v. Superior Court 173 Ariz. 129, 840 P.2d 305
      (App. 1992), 19 FLR 1101 (1/5/93).

      "The court shall consider evidence of domestic violence as being
      contrary to the best interests of the child. If the court finds that
      domestic violence has occurred, the court shall make arrangements for
      visitation that best protect the child and the abused spouse from
      further harm. The person who has committed an act of domestic
      violence has the burden of proving that visitation will not endanger
      the child or significantly impair the child's emotional development."
      ARS 25-332(B) as amended, Laws 1993, Ch. 164 Section 1.


      "When a writing or recorded statement or part thereof is introduced
      by a party, an adverse party may require the introduction at that
      time of any other part or any other writing or recorded statement
      which ought in fairness to be considered contemporaneously with it."
      Arizona Rule of Evidence 106

      "In expounding the Constitution
      of the United States," said Chief Justice Taney in Holmes v.
      Jennison, 14 U.S. 540, 570-1, "every word must have its due force
      and appropriate meaning; for it is evident from the whole
      instrument, that, no word was unnecessarily used, or needlessly
      added. The many discussions which have taken place upon the
      construction of the Constitution, have proved the correctness of
      this proposition; and shown the high talent, the caution and the
      foresight of the illustrious men who framed it. Every word
      appears to have been weighed with the utmost deliberation and its
      force and effect to have been fully understood." Wright v.
      United States, 302 U.S. 583 (1938)

      The language of the Constitution cannot be interpreted safely,
      except where reference to common law and to British institutions
      as they were when the instrument was framed and adopted. The
      statesmen and lawyers of the convention who submitted it to the
      ratification of conventions of the thirteen states, were born and
      brought up in the atmosphere of the common law and thought and
      spoke in its vocabulary...when they came to put their conclusions
      into the form of fundamental law in a compact draft, they
      expressed them in terms of common law, confident that they could
      be shortly and easily understood. Ex Parte Grossman, 267 U.S.
      87, 108.


      The courts are not bound by mere forms, nor are they to be misled
      by mere pretences. They are at liberty---indeed, are under a
      solemn duty---to look at the substance of things, whenever they
      enter upon the inquiry whether the legislature has transcended
      the limits of its authority. If therefore, a statute purporting
      to have been enacted to protect the public health, the public
      morals, or the public safety, has no real or substantial relation
      to those objects, or is a palpable invasion of rights secured by
      the fundamental law, it is the duty of thye courts to so adjudge,
      and thereby give effect to the Constitution. Mugler v. Kansas,
      123 U.S. 623, 661

      Constitutional provisions for the security of person and property
      should be liberally construed. It is the duty of the courts to
      be watchful of constitutional rights against any stealthy
      encroachments thereon. Boyd v. U.S., 116 U.S. 635.

      It cannot be assumed that the framers of the constitution and the
      people who adopted it, did not intend that which is the plain
      import of the language used. When the language of the
      constitution is positive and free of all ambiguity, all courts
      are not at liberty, by a resort to the refinements of legal
      learning, to restrict its obvious meaning to avoid the hardships
      of particular cases. We must accept the constitution as it reads
      when its language is unambiguous, for it is the mandate of the
      sovereign power. Cook vs. Iverson, 122, N.M. 251.

      Where the words of a constitution are unambiguous and in their
      commonly received sense lead to a reasonable conclusion, it
      should be read according to the natural and most obvious import
      of the framers, without resorting to subtle and forced
      construction for the purpose of limiting or extending its
      operation. A State Ex Rel. Torryson v. Grey, 21 Nev. 378, 32 P.
      190.

      If the legislature clearly misinterprets a constitutional
      provision, the frequent repitition of the wrong will not create a
      right. Amos v. Mosley, 74 Fla. 555; 77 So. 619

      A long and uniform sanction by law revisers and lawmakers, of a
      legislative assertion and exercise of power, is entitled to a
      great weight in construing an ambiguous or doubtful provision,
      but is entitled to no weight if the statute in question is in
      conflict with the plain meaning of the constitutional provision.
      Kingsley v. Merril, 122 Wis. 185; 99 NW 1044

      Economic necessity cannot justify a disregard of cardinal
      constitutional guarantee. Riley v. Carter, 165 Okal. 262; 25 P.
      2d 666; 79 ALR 1018

      Disobedience or evasion of a constitutional mandate may not be

      tolerated, even though such disobedience may, at least
      temporarily, promote in some respects the best interests of the
      public. Slote v. Board of Examiners, 274 N.Y. 367; 9 NE 2d 12;
      112 ALR 660.

      When any court violates the clean and unambiguous language of the
      Constitution, a fraud is perpetrated and no one is bound to obey
      it. (See 16 Ma. Jur. 2d 177, 178) State v. Sutton, 63 Minn. 147,
      65 NW 262, 30 L.R.A. 630 Am. St. 459.


      "ARCP RULE 26(d) Sequence and timing of discovery. Unless the court
      upon motion for the convenience of the parties and witnesses, and in
      the interests of justice, orders otherwise, methods of discovery may
      be used in any sequence and the fact that a party is conducting
      discovery, whether by deposition or otherwise, shall not operate to
      delay any other party's discovery."


      "ARCP RULE 26(d) Sequence and timing of discovery. Unless the court
      upon motion for the convenience of the parties and witnesses, and in
      the interests of justice, orders otherwise, methods of discovery may
      be used in any sequence and the fact that a party is conducting
      discovery, whether by deposition or otherwise, shall not operate to
      delay any other party's discovery."


      "(4) If any judgment shall be rendered in any action or proceeding
      governed by this section against any person in military service
      during the period of such service or within thirty days thereafter,
      and it appears that such person was prejudiced by reason of his
      military service in making his defense thereto, such judgment may,
      upon application made by such person or his legal representative, not
      later than ninety days after the termination of such service, be
      opened by the court rendering the same and such defendant or his
      legal representative let in to defend; provided it is made to appear
      that the defendant has a meritorious or legal defense to the action
      or some part thereof." 50 U.S. Code 520 (4)

      The Court may note that although the Defendant's Motion for security
      is replete with extraneous references to a domestic relations matter,
      it was not ".... accompanied by a memorandum indicating, as a
      minimum, the precise legal points, statutes and authorities relied
      on, citing the specific portions or pages thereof..." Uniform Rule of
      Practice of the Superior Court 4(a).

      A court is not obliged to summarily grant a motion which is legally
      or factually deficient on its face, on the technicality of when or if
      the response in opposition was filed. As required by Rule of Civil
      Procedure Number One, the Rules "... shall be construed to secure the
      just, speedy, and inexpensive determination of every action." ARCP 1.

      The dispositive case prohibiting change of venue from Yavapai County
      to Maricopa County herein, is Beard v. Greer, 116 Ariz. 536, 570 P.2d
      223 (1977). See also Davies v. Russell, 84 Ariz. 144, 325 P.2d 402
      (1958), Allen v. Superior Court, 86 Ariz. 205, 344 P.2d 163 (1959).

      "Once an action is brought in the proper county, the court has no
      jurisdiction to change the venue. Pride v. Superior Court, 87 Ariz.
      157, 348 P.2d 924; Miles v. Wright, 22 Ariz. 73, 194 P.88, 12 A.L.R.
      970." Ellsworth v. Layton, 97 Ariz. 115, 397 P.2d 450 (1964)
      37
      The original decree granting county of Yavapai retains exclusive
      jurisdiction over the parties, the children, and the original case.
      Forum shopping should not be allowed by Venue changes. Hofstra v.
      Mahoney, 108 Ariz. 498, 502 P.2d 1317 (1972).

      A court which is moved to dismiss under Rule 12(b)(6) must assume the
      facts, that have been pled, to be true, and examine only whether a
      legal theory exists upon which those facts could result in the
      granting of relief. State ex. rel Corbin v. Pickrell, 136 Ariz. 589,
      667 P.2d 1304 (1983); Williams v. Williams, 23 Ariz. App. 191, 531
      P.2d 924 (1975); Parks v. Macro-Dynamics, Inc.. 121 Ariz. 517, 591
      P.2d 908 (App. 1979), appeal after remand 134 Ariz. 495, 657 P.2d
      908; Radcliffe v. Hilton Inn, 119 Ariz. 306, 580 P.2d 767 (App.1978);
      State v. Superior Court of Maricopa County, 231 Ariz. 324, 599 P.2d
      777 (1979).

      Misconduct of attorney in isolated omission not sufficient to
      insulate client from punitive dismissal sanction; attorney must have
      totally abandoned client. Distinguish: Does not apply to discovery
      sanctions under Rule 37 (See favorable cites under headnotes 5, 6,
      170 Ariz at 110) Mission Ins. v. Cash, Sullivan & Cross, 170 Ariz.
      105, 822 P.2d 1 (App. 1991)

      Non-lawyers can assist or represent litigants in court. Johnson v.
      Avery, 89 S.Ct. 747

      Members of group who are competent nonlawyers can assist other embers
      of group achieve the goals of the group in court without eing charged
      with "unauthorized practice of law" Brotherhood of Railway Trainmen
      v. Virginia , 377 US 1; NAACP V. Button, 371 US 15 (1962); Sierra
      Club v. Norton, 92 S.Ct. 1561; United Mine Workers v. Gibbs, 383 US
      715; Faretta v. California, 422 US 806.

      Pro Se (Without a Lawyer, representing self) pleadings are to be
      considered without technicality; pro se litigants pleadings are not
      to be held to the same high standards of perfection as lawyers.
      Haines v. Kerner, 92 S.Ct. 594; Jenkins v. McKeithen, 395 US 411, 421
      (1969); Picking v. Penna. Rwy. Co. 151 F.2d 240; Puckett v. Cox, 456
      F.2d 233.

      When a judge knows that he lacks jurisdiction, or acts in the face of
      clearly valid statutes expressly depriving him of jurisdiction,
      judicial immunity is lost. Rankin v. Howard, (1980) 633 F.2d 844,
      cert den. Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d
      326.

      Mireles v. Waco, 112 S.Ct. 286 (1991); Rankin v. Howard, 633 F.2d 844
      (1980) and Ashelman v. Pope, 793 F.2d 1072 (1986).

      A judge must be acting within his jurisdiction as to subject matter
      and person, to be entitled to immunity from civil action for his
      acts. Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938)

      Generally, judges are immune from suit for judicial acts within or in
      excess of their jurisdiction even if those acts have been done
      maliciously or corruptly; the only exception being for acts done in
      the clear absence of all jurisdiction. Gregory v. Thompson, 500 F2d
      59 (C.A. Ariz. 1974)

      The Court of Appeals upheld a sanction for non-compliance with
      discovery, based upon the specific evidentiary finding of the court
      below, that actual notice of the Motion and of a hearing thereon, had
      been made and received. Verde Ditch Co. v. James, 157 Ariz. 369, 758
      P.2d 144, App. 1988. The point upon which Verde Ditch hinged, was
      that a technicality of a mailing certificate is not dispositive of
      whether the motion was improvidently granted; however, the actual
      non-receipt of any notice or opportunity to respond to the motion
      38
      itself is a factor essential to due process considerations.

      "Where a request for admission of genuineness of documents is served
      by mail, there must have been strict observance if the legal

      prerequisite to give the court authority to grant a summary judgment
      because of failure to respond to the request, that would provide
      strict compliance with provisions of subdivision (b) of (Federal Rule
      of Civil Procedure 5). U.S. V. Brandt, DC Mont. 1948, 8 F.R.D. 163.

      Actual mailing of the motion is sufficient to comply with ARCP (and
      FRCP) Rule 5; Kiki Undies Corp. v. Promenade Hosiery Mills, Inc.,
      DCNY 1969, 308 F.Supp. 489.

      The general requirement for setting aside a valid default judgement
      "for good cause shown" typically involves a three-fold showing of (1)
      excusable neglect, (2) prompt application for relief, and (3) the
      existence of a meritorious defense. Daou v. Harris, 139 Ariz. 353,
      678 P.2d 934 (1984).

      The law favors resolution on the merits and hence, if the trial court
      has doubt about whether to vacate a default judgment, it should rule
      in favor of the moving party. Daou v. Harris, id.; Richas v. Superior
      Court, 133 Ariz. 512, 652 P.2d 1035 (1982); Marsh v. Riskas, 73 Ariz.
      7, 236 P.2d 746 (1951).

      Husband was not at fault for the delayed submission of his
      interrogatory answers by his attorney. The prevailing Arizona
      Appellate view of such discovery circumstances highly disfavors the
      onerous sanction of a dismissal
      under ARCP Rule 37:
      "It is our opinion that the entry of a default as a sanction for the
      attorney's dereliction, as opposed to the client's, is unauthorized."
      Robinson v. Higuera, 157 Ariz. 622, 760 P.2d 622 (App. 1988)

      "The Meadors urge that the appellants are not entitled to relief
      where the judgment was obtained against them in consequence of the
      neglect and carelessness of their attorney, contending that the fault
      of the parties' attorney is attributed to them.......

      "We do not think, however, that Rule 37(b)(2)(iii), supra, where it
      is used as a sanction for failure to answer interrogatories, should,
      in the interest of justice, be so rigidly enforced. Litigation ought
      not be treated as a game, but should be disposed of, where possible,
      on its merits......

      "We think the court below clearly abused its discretion in failing to
      set aside the judgment of dismissal entered against [the Treadaways]
      upon determining the true state of facts: namely that they had
      engaged an attorney and had fully attempted to comply with the
      court's directions to answer the interrogatories. For this reason,
      the judgment of the court below..... and that certain order....
      ordering dismissal of the Treadaway's complaint are set aside."
      Treadaway v. Meador, 103 Ariz. 83, 436 P.2d 902 (1968)

      Because no evidence was considered as to whether Husband or Attorney
      Mybeck were at fault for the late submission of the discovery
      responses, there was no finding by Commissioner Anderson that any
      fault might be attributable to Husband. Refusal to set aside the
      default without such a determination was also an abuse of discretion.
      Lenze v. Synthes, 160 Ariz. 302, 772 P.2d 1155 (App., 1989); Birds
      International v. Arizona Maintenance Co., Inc., 135 Ariz. 545, 662
      P.2d 1052 (App. 1983)

      There was no finding of bad faith or deliberate resistance to
      discovery on the part of Husband himself. The communications problems
      associated with Attorney Mybeck's long-distance relocation, are in no
      39
      way attributable to Husband. Thus, they constitute a disability in
      discovery response. The ARCP Rule 37 sanction striking his pleadings,
      and the present jeopardy of a draconian, child-harmful Default Decree
      is certainly too harsh in such circumstances. Societe International

      Pour Participations Industrielles v. Rogers, 357 US 197, 78 S.Ct.
      1087, 2 L.Ed.2d 1255 (1958).

      "Arizona Courts have expressed a preference for less drastic
      sanctions than dismissal. see A.G. Rancho Equipment v. Massey-
      Ferguson, Inc., 123 Ariz. 122, 598 P.2d 100 (1979); Zakroff v. May, 8
      Ariz. App. 101, 443 P.2d 916 (1968). That preference extends to a
      hearing prior to dismissal to determine whether the non-compliance
      was due to willfulness or bad faith. A.G. Rancho Equipment, supra.
      Zakroff, supra. In Zakroff, supra, this court suggested that, prior
      to dismissal, `the trial court should determine whether the failure
      to answer interrogatories was willful... and whether the
      circumstances are so aggravated as to justify the drastic action.' 8
      Ariz. App. at 104, 443 P.2d at 919.

      "Unless the appellant, as opposed to the attorneys, was guilty of
      willful misconduct or bad faith resulting in the failure to make
      discovery, the dismissal must be set aside." Birds International v.
      Arizona Maintenance Co., Inc., id. 135 Ariz. 545 at 547.

      To the extent that statutes and rules of court are applied under
      color of law to impair the obligation of Hirschfeld's attorney fee
      contract, such application violates Article 2, Section 25, of the
      Arizona Constitution:


      "Section 25. Bills of attainder; ex post facto laws; impairment of
      contract obligations. No bill of attainder, ex-post-facto law, or law
      impairing the obligation of a contract, shall ever be enacted."

      The fundamental attack by the fee arbitrators and bar prosecutors
      upon the enforceability of the non-refundable initial fee clause, and
      the duty of the client to accept only hours in satisfaction of the
      attorney's contractual obligation, is a direct attack upon the
      contract. Tower Plaza Investments, Ltd. v. DeWitt, 109 Ariz. 248, 508
      P.2d 324 (1973), Reh. Den., 1973, appeal dism. 94 S.Ct. 853, 414 U.S.
      1118, 38 L.Ed.2d 746.

      "The obligation of a contract is defined as the law or duty which
      binds the parties to perform their agreements. Home Bldg. & Loan
      Ass'n. v. Blaisdell, 290 U.S. 398, 429, 54 S.Ct. 231, 78 L.Ed. 413,
      424, 88 A.L.R. 1481, 1490 (1934), and a contract is impaired when a
      party is deprived of the benefit of his contract by a law, Norther
      Pacific Ry. v. Minnesota ex.rel. Duluth, 208 U.S. 583, 591, 28 S.Ct.
      341, 343, 52 L.Ed. 630, 634 (1908). But, to have a constitutionally
      protected impairment, the law must act on the contract itself as
      distinguished from the property which is the subject of the contract.
      Clement National Bank v. Vermont, 231 U.S. 120, 34 S.Ct. 31, 58 L.Ed.
      147 (1913), aff'g State v. Clement National Bank, 84 Vt. 167, 78
      A.944 (1911)." Tower Plaza Investments, Ltd. v. DeWitt, id. at 109
      Ariz. 252.

      A proceeding in Court to convert a fee arbitration award to a
      Judgment is the only available avenue of Appeal on the Merits of a
      wrongful or erroneous Fee Arbitration Award. Goldsberry v. Hohn, 120
      Ariz. 40, 583 P.2d 1360 (App. 1978).


      In re Swartz, 141 Ariz. 266, 686 P.2d 1236 (1984)

      In re Struthers, 179 Ariz. 216, 877 P.2d 789 (1994)
      Little v. Hauser, 180, Ariz. 328, 884 P.2d 214 (Ariz. App., May 3,
      40
      1994)

      The Supreme Court of Minnesota said:

      "Where an individual seeks modification of a decree
      for maintenance and support on ground that career change
      has resulted in decreased earnings, court should
      ascertain whether party directed to pay has made
      reasonable good faith effort by means of his or her own
      selection to conform with the judgment within his or her
      own inherent but unexercised capabilities, and if change
      was made in good faith, child and separated spouse
      should share in the hardship as they would have had the
      family remained together, and the same is true as to
      benefits." Geisner v. Geisner, 319 N.W. 2d 718 ( Minn. 1982)

      Persuasive authority also exists in the Illinois Courts:

      "Where a fathers efforts to better his academic
      bargaining position and job security had been commenced
      some five years prior to his request for modification of
      child support requirement of divorce decree, ... was not
      abuse of discretion." Graham v. Graham, 316 N.E.2d 143,
      21 Ill. App. 3d 1032. (1974)

      "Following dissolution of marriage, the custodial
      parent and children cannot be allowed to freeze the
      other parent in his employment or otherwise preclude him
      from seeking economic improvement for himself and his
      family. So long as his employment, educational or
      investment decisions are undertaken in good faith and
      not deliberately designed to avoid responsibility for
      those dependent on him, he should be permitted to
      attempt to enhance his economic fortunes without
      penalty." Coons v. Wilder, 93 Ill App. 3d. 127, 133, 48
      Ill. Dec 512, 416 N.E. 2d. 785. (1981)
      Accord, In re Marriage of Kowski 463 N.E. 2d 840,
      Ill. App. (1984):

      "It is well established that a spouse's voluntary change
      in occupation or employment made in good faith may
      constitute a substantial change in circumstance
      sufficient to warrant modification of maintenance or
      child support." Coons v. Wilder 93 Ill. App.3d 127, 48
      Ill. Dec 512, 416 N.E. 2d 785 (1981); In re Marriage of
      Ebert, 81 Ill. App.3d 44, 36 Ill. Dec. 415, 400 N.E. 2d
      995 (1980); Martinec v. Martinec, 17 Ill. App.3d. 402,
      308 N.E. 2d. 161, (1974); Lewis v. Lewis, 120 Ill. App.
      2d. 263, 256 N.E. 2d. 660 (1970).

      "Such a voluntary, good faith change in employment need
      not equal or increase the spouse's income; indeed,
      substantial reductions may be permissible and do not per
      se constitute lack of good faith." In re Marriage of
      Kowski, id. at 843.

      "Consequently, modification of support obligation is
      appropriate where the supporting spouse terminates his
      employment to further his education. " In re Marriage of
      Kowski, id. at 844.

      THE TEST IS "GOOD FAITH

      " Good faith is not shown where it can be determined
      that the change has been prompted by a desire to evade
      financial responsibilities to the supported spouse." In
      41
      re Marriage of Ebert, 81 Ill. App.3d 44, 36 Ill. Dec.
      415, 400 N.E. 2d 995 (1980); In re Marriage of Uphoff 80
      Ill. App.3d. 145, 35 Ill. Dec. 293, 398 N.E. 2d. 1243
      (1980); Glass v. Peitchel, 42 Ill. App. 3d. 240, 355

      N.E. 2d. 750 (1976).


      In the case of Thomas v. Thomas the Supreme Court of Alabama
      specifically said that a supporting spouse had a right to change his
      occupation as long as it was done in good faith. The fact that his
      change in employment resulted in a decrease in his income was no bar
      to the reduction in child support. The court went on to imply that
      the chance of furthering one's "professional competence" was a
      factor that must be weighed in the modification See, Thomas v.
      Thomas, 203 So. 2d. 118 (1967).

      "The test is whether the former husband and father in
      good faith enters into a new occupation at a reduced
      income. If such be the circumstances, he should be
      permitted to make such change of occupation even though
      it might require his former wife and his children to
      share in hardship attending the change. If the family
      had remained together the husband would have had the
      right to make such choice.

      "There are many reasons that might influence a man to
      change his occupation other than financial aspects. The
      prospect of improving his professional competence is a
      strong one. The prospect of leading a more satisfying
      life is not to be ignored. See, Nelson v. Nelson, 225
      Or. 257, 357 P.2d. 536, 89 A.L.R. 2d. 1; Fort v. Fort,
      90 So. 2d. 313." Thomas v. Thomas, 203 So. 2d. 118 (1967)

      The Supreme Court of Minnesota agreed with this contention:

      " We believe that a similar test should apply where an
      individual seeks modification of a decree on the ground
      that a career change has resulted in decrease earnings.
      If the change is made in good faith, the child and the
      separated spouse should share in the hardship as they
      would have had the family remained together. The same is
      true as to benefits." Giesner v. Giesner, id.

      See also Cohn v. Cohn, 461 N.E. 2d. 1028 (Ill. App. 1984)

      " Nevertheless it is also well established that a
      voluntary change in employment made in good faith and
      not prompted by a desire to evade responsibility may
      constitute a change in circumstance warranting
      modification of a child support order. In re Marriage
      of Ebert, 81 Ill. App.3d 44, 36 Ill. Dec. 415, 400 N.E.
      2d 995 (1980); In re Marriage of Uphoff 80 Ill. App.3d.
      145, 35 Ill. Dec. 293, 398 N.E. 2d. 1243 (1980)"
      Cohn v. Cohn, 461 N.E. 2d. 1028 (Ill. App. 1984)

      While concurring with previous decisions made by the courts of
      Illinois, the court in Cohn went on to indicate that;

      "... We stated that [t]he crucial consideration in
      testing 'good faith' is whether the change in status was
      prompted be a desire to evade financial responsibility
      for supporting the children or to otherwise jeopardize
      their interests" Coons v. Wilder 93 Ill. App.3d 127, 48
      Ill. Dec 512, 416 N.E. 2d 785 (1981); This requires an
      inquiry as to motive rather than results." Cohn v. Cohn,
      461 N.E. 2d. 1028 (Ill. App. 2 Dist. (1984) (emphasis supplied)

      Precedent for the principle that a Court may set aside a State Bar
      Fee Arbitration Award, notwithstanding any agreement that the award

      shall be final and binding upon the parties, appears in Goldsberry v.
      Hohn, 120 Ariz. 40, 583 P.2d 1360 (App. 1978).


      "Section 25. Bills of attainder; ex post facto laws; impairment of
      contract obligations. No bill of attainder, ex-post-facto law, or law
      impairing the obligation of a contract, shall ever be enacted."
      Arizona Constitution, Article 2, Section 25; see also U.S.
      Constitution, Article 1, Section 10.

      The fundamental attack by Plaintiff upon the enforceability of the
      non-refundable initial fee clause, and the duty of the client to
      accept only hours in satisfaction of the attorney's contractual
      obligation, is a direct attack upon the contract. Tower Plaza
      Investments, Ltd. v. DeWitt, 109 Ariz. 248, 508 P.2d 324 (1973), Reh.
      Den., 1973, appeal dism. 94 S.Ct. 853, 414 U.S. 1118, 38 L.Ed.2d 746.


      "The obligation of a contract is defined as the law or duty which
      binds the parties to perform their agreements. Home Bldg. & Loan
      Ass'n. v. Blaisdell, 290 U.S. 398, 429, 54 S.Ct. 231, 78 L.Ed. 413,
      424, 88 A.L.R. 1481, 1490 (1934), and a contract is impaired when a
      party is deprived of the benefit of his contract by a law, Norther
      Pacific Ry. v. Minnesota ex.rel. Duluth, 208 U.S. 583, 591, 28 S.Ct.
      341, 343, 52 L.Ed. 630, 634 (1908). But, to have a constitutionally
      protected impairment, the law must act on the contract itself as
      distinguished from the property which is the subject of the contract.
      Clement National Bank v. Vermont, 231 U.S. 120, 34 S.Ct. 31, 58 L.Ed.
      147 (1913), aff'g State v. Clement National Bank, 84 Vt. 167, 78
      A.944 (1911)." Tower Plaza Investments, Ltd. v. DeWitt, id. at 109
      Ariz. 252.

      The lack of a granted power constitutes a lack of subject matter
      jurisdiction, which may be raised at any time in any litigation.
      Carlson v. Brown, 118 Ariz. 387, 576 P.2d 1387 (App. 1978)


      "Because Judge Rogers had no jurisdiction to proceed after husband's
      notice was filed, we vacate all rulings and orders made by him after
      February 24, 1993, including the decree of dissolution of marriage
      between husband and wife, and the $20,000 order of sanctions against
      attorney Hirschfeld."

      Taliaferro v. Taliaferro, 10/17/95 Opinion, Ariz. Court of Appeals.,
      Div. 1, 1 CA-CV 93-0547 _____ Ariz _____ (1995) (pending petition
      for review).

      The privilege cannot be used as both a sword and a shield. Throop v.
      F.E. Young Co., 94 Ariz 146, 158, 382 P.2d 560, 563 (1963); 8 Wigmore
      on Evidence Section 2388 (McNaughton Rev. 1961).

      "A party cannot, by selective invocation of the privilege, disclose
      documents or testimony favorable to that party while failing to
      disclose cognate material unfavorable to that party." Teachers Ins.
      and Annuity Ass'n. v. Shamrock Broadcasting Co.,521 F.Supp 638, 641
      (S.D.N.Y. 1981)

      "Any voluntary disclosure by the holder of such a privilege is
      inconsistent with the confidential relationship and thus waives the
      privilege.' United States v. A.T. & T., 642 F2d 1285 (DC Cir 1980)
      43
      The privilege is also waived when the privilege holder places a
      particular medical condition at issue by means of a claim or
      affirmative defense. Bain v. Superior Court, 148 Ariz. 331, 714 P.2d
      824 (1986)

      The basic test for whether Scientific Evidence is
      acceptable for expert testimony: Frye v. United States, 54 App.D.C. 46, 296
      F. 1013, 34 A.L.R. 145 (1923); State v. Mena, 128 Ariz. 226,231,624 P.2d
      1274, 1279 (1981).

      (THIS CONCLUDES THE 5-POST TRANSMISSION OF BOB HIRSCHFELD'S
      "CITATION.TXT", ACCUMULATED DURING HIS 10 YEAR LAW PRACTICE)
      See: http://www.nolawyer.com/ntsecure/securecc.html
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