The Ad hoc convened by Councilpersons Jewitt, Crooks and Anderson against lone wolf Councilwoman Pat Workman has reportedly been rescheduled for Tuesday, Oct. 2, at the same time. It seems the new town mismanager may have screwed up big time when she passed out an update letter from Jackson Lewis LLP, the bottom feeding lawyers hired by the town to discredit the Quartzsite 10 police officers. Apparently, the lawyers did not mark the letter confidential, and neither did Interim Town Manager Laura Bruno before she handed it out to councilpersons in her office. Now, we hear Bruno has hired a private investigator to go after Workman and clear her own name. More than a little unethical on Bruno's part 'cause it's a clear conflict of interest to us uneducated folks. Hey Mrs. not so genius after all, communications by the attorney need to be labeled that they're confidential or
privileged. If the lawyer doesn't say so explicitly, how would the recipient know for sure. Nobody trusts your judgement since you screwed the school district in CA Mrs. Bruno. When Jackson Lewis (same law firm, same case) published their hit piece on the officers last summer, I mean report that the liars club says cleared the chief, it was the town manager who waived attorney/client privelege to disseminate it. So even if the clown council wants to argue that privelege exists with an attorney being paid with public money (which it doesn't) the precedent exists that the town manager is the responsible party. So sorry Laura. Marty's opinion has proven wrong at nearly every turn, and Murry is a hack at best (whose compromised by his own ethical dilemma of being a partner at law with Bill Simms of the Risk Pool),so I'm just trying to help you here. You idiots are setting the town up for a defamation suit by Workman and I'll bet she's already shopping attorneys. Or perhaps, they are shopping her!
Lastly show us the penalty for violating attorney/client privilege, 'cause it aint a crime. Lawyers can get sanctioned, but the
client can waive the privilege, even in the most unintended manner.
It happens every day.
Seems that the clown council is cranky that Workman is actually exercising her 1st Amendment rights to waive attorney client priveledge and speak to the constituents who put her into office. More money spent on a political vendetta against the lone dissenting vote. The idiots who convened this farce have no ethics and two are usurpers of their office, seated illegally. There's nothing new under the desert sun in Q Ville. AdHoc. Pat.Workman
QUARTZSITE, Ariz.—This tiny desert outpost is known for 70-degree winters, an
annual gem show that draws thousands of visitors, and a nudist bookstore owner
who conducts business in little more than flip-flops and a straw hat.
But these days, the town's most extraordinary feature is its politics.
An American flag sits atop Quartzsite Mountain in
Quartzsite, Ariz. This tiny desert outpost is known for 70-degree winters, an
annual gem show that draws millions of visitors, and a bookstore owner who
conducts business in little more than flip-flops and a straw
hat.
For months, officials in Quartzsite—which lies about halfway between Phoenix
and Palm Springs, Calif., on Interstate 10—have so far refused to allow the
mayor-elect to take office because he owes the town $2,200 in attorney's fees.
In late August, the town manager put the police chief on paid administrative
leave pending an investigation over allegations involving a time sheet. A few
days later, the town council suspended the town manager for undisclosed
reasons—after the town's attorney filed a restraining order against the town
council to stop it meeting.
The town manager said she couldn't comment on her suspension because "no one
gave me a reason."
In September, the assistant town manager fired the police chief without
consulting the town council, according to other town officials. Days later, the
interim town manager reversed the chief's firing, and suspended the assistant
town manager pending an investigation into an undisclosed matter. The assistant
manager couldn't be reached for comment. On Tuesday, the town council voted to
put the police chief back on the job.
"We're calling this the Twilight Zone in Quartzsite," said Ed Foster, the
elected, but so far unseated, mayor who has filed a complaint in superior court
to force the town to install him. Mr. Foster, 70 years old, began humming the
music from the television show, and said, "Every day we get up and ask, 'What's
going to happen today?'"
On Tuesday night, Mr. Foster's lawyer said an attorney hired by the town
called to discuss a potential settlement deal that would include seating Mr.
Foster as mayor. The deal hasn't been finalized yet, said his lawyer, Julie
LaBenz. If a deal isn't reached, she said Mr. Foster will move ahead with a
court hearing due next week.
The interim town manager, Laura Bruno, said Wednesday a lawyer for the town
briefed the town council in closed session about Mr. Foster's case. Ms. Bruno
said the council made no decision on a settlement deal, and would still have to
vote to seat Mr. Foster. She said the intent of the attorney was "to open a line
of communication with Mr. Foster's attorney."
The turmoil caught the attention of state and federal officials. The Arizona
Department of Public Safety has investigated corruption complaints against town
officials four times in the past two years and recently began a fifth probe of
the police chief over the alleged false filing of a time sheet, a Department of
Public Safety spokesman said. The chief, Jeff Gilbert, has denied any
wrongdoing.
The attorney for La Paz County, which includes Quartzsite, said he asked the
Federal Bureau of Investigation to investigate town officials for possible
corruption. An FBI spokesman said he couldn't confirm or deny any probe.
The unrest boils down to a struggle between two groups: on one side, some
current and former town leaders who say they are being targeted by activists who
oppose development; on the other side, activists and the mayor-elect who claim
city officials are hiding corruption and targeting them for criticizing town
leaders. In interviews, the officials have denied the accusations.
The standoff has divided the town and set its residents on edge. "You just
feel it's a powder keg in Quartzsite, and something is going to set it off,"
said Shelly Baker, recorder for La Paz County.
Isolated on the western edge of Arizona, Quartzsite was once a mining area
and way station for travelers, later becoming popular with retirees for its mild
winters. Its population jumps to 100,000 in the winter from 3,500 the rest of
the year.
Political intrigue in the town dates back to at least 1995, when the
then-mayor was convicted of hiring a hit man to try to kill his political rival.
His conviction was overturned, and he was back in office six months later.
In 2005, Mr. Foster, a retired engineer for gum-maker Wrigley, moved to
Quartzsite from Chicago and successfully ran for mayor in 2010 on a platform of
financial transparency.
After he was elected, Mr. Foster asked state police to investigate the city's
police chief, saying he improperly used vacation time. Mr. Gilbert countered by
asking state officials to investigate Mr. Foster and his allies for allegedly
manufacturing evidence against him. Town residents and former police employees
have accused Mr. Gilbert of harassing, firing or arresting them due to their
political views. Mr. Gilbert denies that and calls the accusations "a conspiracy
against me" by some town officials and disgruntled employees who want to take
control of the police department.
The state's attorney general has declined to prosecute anyone in Quartzsite
as a result of state investigations because of insufficient evidence, a
spokeswoman for the office said.
Last year, an ally of Mr. Foster's, Jennifer Jones, was arrested by Mr.
Gilbert while speaking during a raucous town council meeting. Ms. Jones, who
owns Furry Friends Pet Spa, has been arrested five times since she began running
for town council in 2010. All of the charges were eventually dropped.
Ms. Jones, who runs a newspaper and website critical of the town and the
police chief, said she is "livid" that the chief has been reinstated. "We feel
betrayed," said Ms. Jones, who is suing the police chief and other town
officials in federal court over her arrests. Ms. Jones says the chief harassed
her and her husband because they were critical of him and his political allies.
The chief denies the allegations and says his arrests of Ms. Jones and her
husband had nothing to do with politics.
Opponents unseated Mr. Foster in a 2011 recall election. He fought the recall
in court, lost and was ordered to pay the town $2,200 in attorney fees. He
refused to pay.
This year, Mr. Foster ran a new campaign and was elected mayor in June. Town
officials said he couldn't take office due to a local ordinance that bars anyone
owing the town money from office. He says he shouldn't have to pay, as the town
attorney shouldn't have appeared in court against him, and the ordinance exceeds
state requirements. The attorney, who officials say is on sick leave, couldn't
be reached for comment.
Some in Quartzsite say they see an end to the unrest. "Our town council is
coming together and is really trying to work as a team to move things forward,"
said Ms. Bruno, the interim town manager.
Mr. Foster said even if he is seated, he will sue the town for its
appointment of a chair and vice chair for council meetings, which he says
weakens his power. "This fight's not over," he said Tuesday. The interim manager
said the town has the right to appoint them.
Business owners just want the fighting to end before the busy winter season.
"It's an embarrassment to our town," said Paul Winer, the nudist owner of
Reader's Oasis bookstore.
—James Oberman contributed to
this article.
Write to Tamara Audi at tammy.audi@wsj.com
A version of this article appeared September 27, 2012,
on page A8 in the U.S. edition of The Wall Street Journal, with the headline:
Small-Town Politics, All-Out War.
Apparently, Pat Workman is the only member of the council that can't be bought. Quartzsite's rogue councilman Mark Orgeron seems to have pulled off his back room deal with scary Jerry and the neo cabal to swap Ms Graft for Chief Dilbert. After a three hour executive session with a new attorney, all but Workman voted to reinstate El Jeffe as supreme jack booted thug. Marty the Bagger, Graft and lil' Al were not in attendance at today's regularly scheduled meeting of the common council. Reportedly, Orgeron admonished the chief to stay out of politics. Yeah, like that's going to work!
Gilbert is currently the subject of a DPS investigation for pulling a gun on the husband of local activist and publisher Jennifer Jones.
and another scathing DPS report, not to mention the town's insurance provider having a meltdown and sending a notice to the town that they don't intend to extend current coverage past the end of the year. At this rate, they'll be lucky they don't get cancelled sooner.
Orgeron had deceived Foster and Workman into putting him on their campaign signs and in their mailer, but threw the opposition party under the bus as soon as he was seated. He has now defaulted on his campaign promise to fire Gilbert. The angry villagers are already crying "RECALL"!
It's been rumored that Quartzsite's newest councilman bought into the Education Options charter school franchise, and the higher the enrollment, the more money he stands to make. But parents I've spoken to are quickly losing both faith and patience with the excessive amount of time he is spending on politics instead of focusing on educating their children.
If parents start pulling their children out of Ed Options, and the charter school goes under, there's likely no going back to the public school system for Mr. O. A rift was created with the school board before he resigned to become "head of school" for Ed Options.
As the neo cabal mechanations become more bizarre with each council meeting, one has to wonder if Orgeron actually has a future in Q Ville or should move back in with his wife in Yuma. Maybe Jerry Lukkasson will take him in!
With "new business" added to today's 2pm council agenda, the council returned from executive session to contract with California Board of Education scam artist Laura Bruno. This brilliant choice was engineered by rogue Councilman Mark Orgeron. Councilwoman Pat Workman was the only "nay" vote.
Her first act in office was to call the council to meet with her in and tell them she was putting Assistant clown manager Al Johnson on administrative leave. Johnson was spotted discussing something (hopefully not town business) with suspended clown manager Alex Taft at her new old residence behind Castor's Antiques around 5:30 tonight. The cabal canabal carnage continues.
In other news, the council adjourned the remaining meeting agenda items until 2 pm tomorrow because the drawn out executive session to appoint an interim town manager did not go smoothly - judging by the looks on their faces when they came out of the back room anyway. The TRO and Show Cause hearings were dismissed this afternoon. Guess the Bagger couldn't 'splain his conficts of interest without risking the Burke would be etically required to file a BAR complaint against him.
Despite campaining as a slate with Mayor Ed Foster and Pat Workman, recently seated Councilman Mark Orgeron has been seen spending an awful lot of time with Jerry Lukkasson at the Eatery. Reports indicate that Orgeron is not communicating with elected Mayor Ed Foster. Pat has been receiving communication from Mark, but so have Councilpersons Carol Kelley, Norma Crooks, and Pat Anderson apparently. At least Marty the Bagger seems to think so. He inferred they were holding secret meetings. Mike Jewitt seems to be Alex Taft's lapdog, 'cause he's voting against the "neo cabal".
A shocking Facebook comment surfaced last weekend from Councilman Orgeron to a former moderator of the Supporters of Mayor Edward Foster page. It was thought at first that Orgeron had allowed someone access to his facebook page, the same way that El Jeffy's wife had posted on Half Wit's FB page as "Dark Horse". However, when local activist Doug Gilford confronted Orgeron last week at the "Cruise In" down at the local Shell station, Orgeron took full credit for the following defamitory and liabelous statements:
"Welcome to my world! Living here in Quartzsite, I can tell you that you really don't know any of the players...Jennifer has been like this. She accepted money from a supporter here in town to help buy campaign material for Ed, Pat, and me (1,000.00)...she paid her personal bills with it. Richard will say what a good guy I am and then will call me names and insult me off the air...what a guy. I can say about his wife, but I will not go there (maybe later). Teri is a spiteful person that is two-faced and will stab her own mother in the back if the occasion occurred. As for Ed, he REALLY does not want to take his position as mayor. If he does get there, he will not be able to pound his chest and say look at me. It works better if he does not get in. In fact, he was offered a place as a litigant on my suit for a couple thousand. A person present offered 1K and I said he had to make payments to me until we got our money back (maybe 2 small payments). He declined saying he should not have to sue. The quo warranto is dead and has been dropped, but they are not putting that out there. I secured him an attorney that worked on my case to work on a contingency basis to take Ed to federal court....he denied the help. He does not want the help or his position, he would rather have a pity party! I can go on for days about their childish behavior. As for Charles, the money is in the bank and the account is being closed out and paid out. Will misled the masses on his statement. Steve would confirm that, but the other side does not want to hear that. Steve had a conversation with Jennifer on the money. She knows the money is in the bank and not absconded or stolen...but, that story does not meet her needs. I don't know what else to say except to stand by for heavy seas! I understand what you were saying about the different branches of service giving each other shit...I continue to do it today. Don't feel bad...you are in good company. We will stand tall and take their beatings, because I will not bow to them or say and do as they want. I will do what is right and be happy with it. " Now, the reformers don't trust him, and many wonder how long he can hold his new coalition together after several failed attempts at getting agenda items written that will accomplish their intent, coupled with a restraining order from the town to stop him from doing just that, and a letter from the Town's insurance that the coverage may be ending at the end of December because the town no longer has a favorable risk profile due to "factional disputes by the town council and resulting employment decisions." see:article
We wish him luck. He'll need it. Tomorrow will be a reavealing sequence of events - another contentious council meeting filled with controversial items at 9 am, a hearing on the temporary restraining order filed by the town to stop the council at 3:30, followed by a show cause hearing an hour later for the contempt of court charge levied at Councilwom Workman for exercising her free speech about little Al.
Stay tuned for another exciting episode of "Only in Quartzsite"!
This week has been cabal cannibal carnage. The appetizers were soooo tasty. 4 star, really. I wonder who the main course will be?
We gleefully witnessed the breakup of the Taft/Gilbert alliance, and today, a crowded town council meeting witnessed the town mismanager sent home on administrative leave. Buh bye!
Quartzsite Town Attorney Martin Brannan
filed a petition for a Temporary Restraining Order this morning
ostensibly on behalf of the Town of Quartzsite (plaintiff) against the
Town's elected officials! (Town Council,defendants). So, in effect, Mr.
Brannan is suing the Town on behalf of the Town! (Interestingly, he is
suing his own clients, to whom he gives legal advice.)
It appears
the motive for this bizarre move was to protect his job, since the Town
Council was to consider firing the Town Manager and Asst Town Manager,
who hired and sustain Mr. Brannan. (Mr Brannan has been the subject of
numerous Bar complaints, still pending, according to the Arizona
Republic newspaper.) Mr. Brannan claims such firings would be illegal.
But 1) if true, it wouldn't be the first time the Town acted illegally.
The old Town council has routinely held illegal meetings, as the State
AG has already ruled. Mr. Brannan never filed a TRO to stop those
illegal meetings. And 2) a TRO is supposed to be issued only after an
ac, when actual harm is alleged. Not before.
Surprisingly (or
not, considering his track record for the town), La Paz County Superior
Court Michael Burke signed off the TRO, which this reporter believes
fails the 4 basic legal tests for a TRO at every point. (If nothing
else,ignoring Mr. Brannan's obvious conflict of interest, Mr. Brannan
lacks standing to sue the Town Council on behalf of the Town. Clearly,
the Town Council did not authorize this suit against them.) In essence,
what Judge Burke has done is akin to barring the Arizona Legislature
from voting on SB 1070 because it might be unconstitutional. A TRO is
not ripe until a law or act has been ratified. You can't get a TRO
because of what someone "might" do. There has to be actual harm.
Now
Judge Burke has created a constitutional issue, a violation of Article
III, Distribution of Powers clause in the AZ Constitution, because the
Judicial is telling the Legislative what it can and cannot do.
Hopefully
the Arizona Attorney General will step in with an emergency appeal to
the Arizona Court of Appeals to overturn Judge Burke as it has done a
few times already. ----------------------- "A party seeking
injunctive relief must show that they are likely to succeed on the
merits, that they are likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor,
and that the injunction is in the public interest."
At minimum, it is hard to see how it is not in the public interest for elected officials to do their job.
Well, clearly I can't leave town, even for a few days.
First, Gibert and Garcia were placed on administrative leave for reasons unknown, per the Quartzsite Police Policy Manual. Sgt. Schultz was anointed to run the department and the locks were changed both at the cop shop and clown hall. Then, a special meeting was called for this afternoon, by the clown council. It seems they were poised to fire Ms. Graft, the clown mismanger and reinstate the Chief Nazi. Reportedly, the clown clerk refused to post it without the Bagger's permission, forcing a member or members of council and accomplices to post the notices around town while someone from clown hall followed at a safe distance and tore the notices down. Then, a press release was posted to the clown website, attributed to the bagger, prompting a rescheduling of the special meeting. Next, Ms. Goldenshowers posts that Graft, not the Bagger authored the propaganda peice.
The
town is buzzing with as of yet unconfirmed rumors, including that
the Bagger personally threatened Orgeron, that Herr Gilbert will be criminally
charged for something thus removing him from the equation anyway, and
that Graft is throwing him under the bus in order to promote her
lover to the position of Police Chief so that they may
rule QTown together. The only thing that seems clear on all of this, is that the cabal alliances are shifting more than the desert sands.
32 year old Loren Tahbo of the Colorado River Indian Tribes plead "not guilty" to the August 10th stabbing death of Daniel Pierce, 32, of Parker. Pierce is the son of Kenneth M. Peirce and District 1 La Paz County Supervisor Sandra Pierce. According to District 2 County Supervisor John Drum at last night's "meet the candidates", the stabbing was "drug related". Tahbo is in tribal custody. The FBI is taking over the investigation.
My dying wish is that I never know how it feels to perform with Alex Taft's
fist up my...but the council can't seem to make a move without her! See
for yourselves:
This morning, Councilman elect Mark Orgeron was "qualified" by the town clowns and the terms of his settlement were "ratified". Vice usurper Barbara Cowell, and recently elected Councilwoman Pat Workman did not attend the "special" meeting.
When Orgeron was asked if he was ready to be sworn in, he informed the council that he wanted it done by Justice Tammy Carnavale, and not former Magistrate Judge and current Town Clerk Terry Frausto. After several minutes delay, the oath was administered and the documents were signed.. Congratulations sir, and good luck!
With glassy eyes, the Quartzsite Town Council stared adoringly at Town Attorney Martin Brannan who said, "First is the investigation into voting irregularities. When I was hired
as the Town Attorney I was provided with the obligation toperform the duties both that are prescribed by this council and by the
Arizona Revised Statutes by the State Legislature. Those include ARS sections
16-924 and 16-1021 which deal with the imposition of civil and criminal
penalties for violations of Title 16 which is the voting section of the voting
Title of Arizona Revised Statutes. With regard to the hiring of investigators both by contract
and by ordinance this council has promised that the Town Attorney will have the
resources necessary to do the job that the council hired the Town Attorney to
do. And that was the basis for hiring Mr. Humphrey."
To that sir, I respond "BULLSHIT"!
And now, an analysis by a legal-minded friend:
16-1021.Enforcement
by attorney general and county, city or town attorney
In any election for state office, members of the
legislature, justices of the supreme court, judges of the court of appeals or
statewide initiative or referendum the attorney general may enforce the
provisions of this title through civil and criminal actions.
In any election for county, city or town office, community
college district governing board, judge or a county, city or town initiative or
referendum, the appropriatecounty, city or town attorney may enforce the
provisions of this title through civil and criminal actions.
In any special district election, the county attorney of any
county in which the district or a portion of the district is located or the
attorney general may enforce the laws governing such election.
END STATUTE.
THIS MEANS THE TOWN ATTORNEY CANNOT ENFORCE TITLE 16-182, VOTER FRAUD STATUTES;
which means the Town Attorney-Town Prosecutor can only INVESTIGATE, which means
NO ABSOLUTE IMMUNITY in Federal Court from Title 18 voter intimidation
lawsuits.>
VOTER
FRAUD:
16-182. False
registration; classification; cancellation of registration
A. A person who knowingly causes, procures or allows himself to be
registered as an elector of any county, city, town, district or precinct,
knowing that he is not entitled to such registration, or a person who knowingly
causes or procures another person to be registered as an elector of any county,
city, town, district or precinct, knowing that such other person is not
entitled to such registration, or an officer who knowingly enters the name of
any person not entitled to registration upon the register or roll of electors, is guilty of a class 6 felony.
B. If on the trial of a person charged with an offense under this section,
it appears that the accused is registered as an elector of any county, city,
town or precinct, without being qualified for such registration, the court
shall order his registration canceled.
1) ONLY COUNTY
ATTORNEY OR AG AREAPPROPRIATE [statutorily
empowered]ATTORNEYS TO ENFORCE Title 16-182 because it is a class 6 FELONY and Town
Prosecutors cannot enforce laws [ like Voter registration fraud] that are
felonies.
2) Town Police have authority to investigate
crimes upon a verified complaint, but they must forward a investigative report
to the County Attorney.
Town Attorneys cannot
enforce a Title 16-182.
Town Prosecutors
cannot enforce Title 16-182.
ABSOLUTE VERSUS
QUALIFIED IMMUNITY [All prosecutors have absolute immunity when prosecuting
cases, even if they violated someone’s Constitutional rights. With one exception, acts they
do as “INVESTIGATIVE ACTS”.
If they violate people’s constitutional right sin an INVESTIGATIVE FUNCTION,
the have only “qualified” immunity from personal liability.
Here’s what Brannan
is claiming at today's council meeting:
First, is the investigation into voting
irregularities. When I was hired as the Town Attorney I was provided with the
obligation to perform the duties both that are prescribed by this
council and by the Arizona Revised Statutes by the State
Legislature. Those include ARS sections 16-924 and 16-1021 which deal with the
imposition of civil and criminal penalties for violations of Title 16 which is
the voting section of the voting Title of Arizona Revised Statutes.
With regard to the hiring of investigators both by contract and by
ordinance this council has promised thatthe Town
Attorney will have the resources necessary to do the job that the council hired
the Town Attorney to do.
And that was the basis for hiring Mr. Humphrey. Mr. Humphrey was hired
under Section 3-409 of the Quartzsite Revised Town Code formerly Section 3-4-8.
he provides professional service an order Does not apply to his situation.
We are continuingin this investigation I intend to be
meeting with the Attorney General in the next week or two weeks to ask him to
take over the investigationbecause they have resources far
beyond what we have.
If they refuse to do that of course the Town will do what’s
necessary and I’ll do what’s necessary under the law to enforce
these statutes.
We’d just be better served if the Attorney General.
US SUPREME COURT CASE:
Honorable Ronald V. DELLUMS, et al.,
v.
James M. POWELL, Chief, United States Capitol Police, and
John N. Mitchell, Department of Justice, Appellants,
Jerry V. Wilson, Chief, Metropolitan Police Department, et al.
No. 80-1331.
United States
Court of Appeals,
District of Columbia Circuit.
It is of course well-recognized that the Attorney General is
entitled to absolute immunity with respect to prosecutorial acts taken within
the scope of his duties. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d
128 (1976). However, as was noted in Forsyth v. Kleindienst, 599 F.2d 1203 (3d
Cir. 1979), cert. denied sub nom Mitchell v. Forsyth, --- U.S. ---, 101 S.Ct. 3147, 69
L.Ed.2d 997 (1980).
Imbler v. Pachtman ... utilized a functional approach.
It suggested
that even a prosecuting attorney would not be absolutely immune from suit for
actions which are not closely connected with the judicial process.
The Supreme Court's holding was narrow:
"We hold only that in initiating a prosecution and in
presenting the State's case, the prosecutor is immune from a civil suit for
damages under § 1983." 424 U.S.
at 431, 96 S.Ct. at 995.
The Court emphasized that the prosecutor's activities
"were intimately associated with the judicial phase of the criminal
process," and therefore, were "functions to which the reasons for
absolute immunity apply with full force." Id. at 430, 96 S.Ct. at 995.
Id.
at 1213.
Numerous other decisions, handed down both before and
after the decision in Imbler, have distinguished between a prosecutor's
"quasi-judicial functions on the one hand and his investigative and
administrative functions on the other, granting absolute immunity to the former
and relegating the latter to qualified immunity." Id. at 1213-14.
Of particular note is the decision of this court in Apton v.
Wilson, 506 F.2d 83 (D.C.Cir.1974), holding that the Attorney General was not
entitled absolute immunity for his part in directing the activities
of the police in Washington, D.C. during the
"May Day" demonstrations in 1971.1
Anticipating Imbler by two years, Judge Leventhal wrote for
the court that:
In arguing for absolute immunity, the defendants stress the
particular duties of the Attorney General, especially his broad supervisory
responsibilities over much of the Federal criminal justice system. The Attorney
General is on occasion referred to as the nation's "chief prosecutor"
as a kind of journalistic shorthand. However, the absolute immunity often
accorded prosecuting attorneys cannot shield the defendants in this case, for
the prosecutor's absolute protection, like that of the judge from which it is
derived, is both justified and bounded by the judicial traditions and
procedures that limit and contain the danger of abuse.
(S)uch an extension of judicial immunity would not encompass the executive
action complained of here the making of decisions establishing policy as to
clearing streets, making arrests, and confining those detained for no
comparable safeguards accompany them. 506 F.2d at 93-94 (footnotes omitted).
Following Imbler, this court once again ruled, in Briggs v.
Goodwin, 569 F.2d 10 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089,
57 L.Ed.2d 1133 (1978), that a prosecutor who was not involved in a
prosecutorial/advocacy role was not shielded by absolute immunity. The court in
Briggs recognized that absolute immunity extends only so far as necessary to
protect a prosecutor's decision with respect to the initiation and conduct of
particular cases. Imbler does
not, in our reading, immunize prosecutors for any and all measures they may
undertake in the course of wide-ranging law enforcement investigations or general
fact-finding expeditions.569 F.2d at 19-20. See also Tigue v.
Swaim, 585 F.2d 909 (8th Cir. 1978); Guerro v. Mulhearn, 498 F.2d 1249 (1st
Cir. 1974); Hampton v. City of Chicago, 484 F.2d 602 (7th Cir. 1973), cert.
denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974).
16-924. Civil penalties; attorney general; county, city or
town attorney
A. Unless another penalty is specifically prescribed in this
title, if the filing officer for campaign finance reports designated pursuant
to section 16-916, subsection A has reasonable cause to believe that a person
is violating any provision of this title, except for violations of chapter 6,
article 2, the secretary of state shall notify the attorney general for a
violation regarding a statewide office or the legislature, the county officer
in charge of elections shall notify the county attorney for that county for a
violation regarding a county office or the city or town clerk shall notify the
city or town attorney for a violation regarding a city or town office. The
attorney general, county attorney or city or town attorney, as appropriate, may
serve on the person an order requiring compliance with that provision. The
order shall state with reasonable particularity the nature of the violation and
shall require compliance within twenty days from the date of issuance of the
order. The alleged violator has twenty days from the date of issuance of the
order to request a hearing pursuant to title 41, chapter 6.
B. If a person fails to take corrective action within the
time specified in the compliance order issued pursuant to subsection A, the
attorney general, county attorney or city or town attorney, as appropriate,
shall issue an order assessing a civil penalty of not more than one thousand
dollars. The person alleged to have violated the compliance order has thirty
days from the date of issuance of the order assessing the civil penalty to
request a hearing pursuant to title 41, chapter 6.
C. Any party aggrieved by an order or decision of the
attorney general, county attorney or city or town attorney, as appropriate, may
appeal to the superior court as provided in title 12, chapter 7, article 6.
D. For the purposes of this section, failure to comply with
a compliance order issued by the attorney general, county attorney or city or
town attorney, as appropriate, as prescribed in subsection A is deemed an
intentional act.
A directed ruling will be issued after attorneys for both parties offer Judge Silver a proposal on how to resolve the situation. The ruling states:
1 This background constitutes the Court’s factual findings.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Mark Orgeron,
Plaintiff,
vs.
Town of Quartsite, et al., Defendants.
No. CV-12-1238-PHX-ROS
ORDER
On July 12, 2012, the Court held a preliminary injunction hearing. Pursuant to the parties’ stipulation, that hearing was consolidated with the trial on the merits regarding Counts 1 through 3 of Plaintiff’s complaint. As set forth below, Plaintiff is entitled to relief on Count 2 of his complaint but Counts 1 and 3 will be dismissed.
BACKGROUND
1
The town of Quartzsite is located in La Paz County. Prior to July 2009, Plaintiff Mark Orgeron lived in nearby Yuma County. In July 2009, Plaintiff moved into a trailer park in Quartzsite. (Exhibit 1). Plaintiff began employment with the Quartzsite Elementary School District on July 14, 2009. (Exhibit 2). In the fall of 2010, Plaintiff and his wife bought and moved into a house in Quartzsite. (Exhibit 3). In connection with purchasing this house, Plaintiff and his wife executed a deed of trust. A portion of that deed of trust stated Plaintiff and his wife agreed to Despite buying the house in Quartzsite, Plaintiff’s wife continues to spend a portion of her time at a rental property in Yuma closer to her work.
The language of the Quartzsite code is confusing but it seems to provide for the automatic transfer of power on election day. It states “Council Members shall assume the duties of office at the regularly scheduled Council meeting next following the date of the general election at which, or effective as of the date of which, the Council Members were elected.” Quartzsite Code § 2-1-3.
Defendants’ latest supplemental brief argues state law provides for current officers to continue in place until newly elected individuals are formally recognized as “qualified” and allowed to take their place. The Court need not address the precise timing of when newly elected individuals assume their positions. “occupy, establish, and use” the Quartzsite house as their “principal residence within 60 days” after signing the deed of trust. Plaintiffs and his wife also agreed they would occupy the house as their “principal residence for at least one year after the date of occupancy.” (Exhibit 4, § 6). Plaintiff keeps all of his vehicles, clothes, and other personal property in the house in Quartzsite.
After relocating to Quartzsite, Plaintiff attempted to register to vote in La Paz County. To do so, Plaintiff went to a Department of Motor Vehicles location in Yuma and changed his address to an address in Quartzsite. The address was changed but there was an error on the zip code. Plaintiff’s voter registration was rejected because of the zip code error. Plaintiff did not know about the zip code error and was unaware his voter registration had been rejected. On June 28, 2011, Plaintiff successfully registered to vote in La Paz County. (Exhibit 7).
Prior to May 15, 2012, Defendant Jose Lizarraga served as mayor of Quartzsite, Defendant Barbara Cowell served as Vice Mayor and as a member of the Town Council, and Joseph Winslow served as a member of the Town Council. Mr. Lizarraga decided not to run for reelection but Ms. Cowell and Mr. Winslow campaigned to retain their Town Council seats. Plaintiff also campaigned for a seat on the Town Council. At the election held on May 15, 2012, non-party Ed Foster won election as mayor while Plaintiff received the most votes for a seat on the Town Council. (Exhibit 8). Non-party Patricia Workman received the second most votes for Town Council. Ms. Cowell and Mr. Winslow received the third and fourth-most votes for Town Council. Because there were only two seats available, Ms. Cowell and Mr. Winslow did not achieve reelection. Quartzsite’s code provides authority is transferred “effective as of the date [of the election].”
Quartzsite Code § 2-1-3. Thus, as of May 15, 2012 Mr. Foster was entitled to the position of mayor, Plaintiff and Ms. Workman were entitled to seats on the Town Council, and Ms. Cowell and Mr. Winslow were not going to continue as members of the Town Council.
On June 4, 2012, and before the newly elected individuals assumed their positions, the incumbent Mayor and Town Council held a meeting. At that meeting, Mr. Lizarraga, Ms. Cowell, and Mr. Winslow “purported to exercise the powers of office, and purported to cast votes.” (Doc.19 at 7). By a vote of 6-1, Mr. Lizarraga, Ms. Cowell, Mr. Winslow, and the other members of the Town Council voted to disqualify Mr. Foster under a provision of the Quartzsite code that prevents an individual who owes money to Quartzsite from serving as a public official. And by a vote of 5-2, Plaintiff was disqualified from taking his seat on the Town Council based on his alleged failure to satisfy the one-year residency requirement set forth by Arizona law and the Quartzsite code. Based on the disqualification of Plaintiff and Mr. Foster, Plaintiff filed a three-count complaint against Town of Quartzsite, Mr. Lizarraga, the members of the Town Council, and the Quartzsite Town Clerk. Plaintiff later filed an amended complaint against the same Defendants. The amended complaint contained four claims. First, Plaintiff claimed the one-year residency requirement violated his “right to travel under the Privileges and Immunities Clause and the Due Process Clause of the Fourteenth Amendment of [the] U.S. Constitution.” (Doc. 19 at 9). Second, Plaintiff sought “declaratory and injunctive relief” that Defendants were misapplying the one-year residency requirement of Arizona law. Third, Plaintiff sought “declaratory and injunctive relief” that disqualification of Mr. Foster as the mayor-elect violated Arizona law. And fourth, Plaintiff claimed Defendants violated 42 U.S.C. § 1973c by failing to obtain preclearance of the town code provision used to disqualify Mr. Foster. Plaintiff sought preliminary injunctive relief in the form of an order removing certain members of the Town Council as well as his appointment as a legitimate member of the Town Council. Shortly after Plaintiff filed his complaint, the La Paz County Attorney filed a quo warranto The term “quo warranto” refers to “[a] common-law writ used to inquire into the authority by which a public office is held or a franchise is claimed.” Black’s Law Dictionary 1264 (7d ed. 1999). action in La Paz County Superior Court. As explained by Defendants, “by bringing the quo warranto action, the County Attorney has necessarily determined that he has reason to believe that the office of the Quartzsite Town Council is being usurped, intruded or unlawfully held.” (Doc. 18 at 2). Defendants believe this Court should abstain until the quo warranto action is resolved while Plaintiff argues the filing of the quo warranto action should not impact this case because “political corruption” will prevent him from adequately defending his rights in the La Paz County Superior Court.
At the start of the preliminary injunction hearing on July 12, 2012, Plaintiff’s counsel stated the parties had reached an agreement that: on the factual issues of where Mr. Orgeron resides and why he was disqualified from office . . . this hearing should be dispositive. There’s still some factual issues that are particular to the Voting Rights Act in Count 4 that we’ll probably resolve through a Motion for Summary Judgment later on. But [the parties agree] that this hearing should be consolidated with the trial on the merits as to the factual issues in Counts 1 through 3 . . . . See Fed. R. Civ. P. 65(a)(2) (allowing for consolidation of preliminary injunction hearing with trial on the merits). Based on that agreement, the Court will proceed to a final determination regarding Counts 1 through 3.
ANALYSIS
I. Federal Jurisdiction
The current complaint contains two claims pursuant to 42 U.S.C. § 1983. The original complaint, however, contained only one claim under 42 U.S.C. § 1983 based on Plaintiff’s alleged federal right to intrastate travel. Initially, the Court questioned whether the sole § 1983 stated a claim on which relief could be granted. Of course, the Court has jurisdiction to decide that issue.
See Bollard v. Cal. Province of the Society of Jesus
, 196 F.3d 940, 951 (9th Cir. 1999) (“Any non-frivolous assertion of a federal claim suffices to establish federal question jurisdiction, even if that claim is later dismissed on the merits under Rule 12(b)(6).”). But if the sole § 1983 were to be dismissed, the Court could have exercised its discretion and refused to hear the state-law claims. 28 U.S.C. § 1367(c)(3). Now that Plaintiff has added a second § 1983 claim, the path of possibly dismissing the intrastate travel claim and declining jurisdiction on the other claims is not possible. Because the amended complaint clearly raises non-frivolous claims under federal law, the Court has jurisdiction to hear this matter. And due to the two federal claims, supplemental jurisdiction exists regarding the two state-law claims. Even under a cramped view of the “same case or controversy” requirement, the state-law claims qualify for the exercise of supplemental jurisdiction. 28 U.S.C. § 1367(a).
II. Abstention is Not Appropriate
In an attempt to avoid the merits of the disputes, Defendants claim the filing of the quo warranto action in state court should lead the Court to abstain from hearing this suit. The basis for this argument is Younger v. Harris, 401 U.S. 37 (1971). According to Defendants, “Younger abstention is required when state-court proceedings are initiated before any proceedings of substance on the merits have occurred in federal court.” (Doc. 25 at 2). Defendants are correct regarding the general scope of Younger abstention. But Defendants overlook a crucial difference between the quo warranto action and the present suit.
The quo warranto action involves some of the same defendants as the present suit but it is undisputed that Plaintiff is not a party in the quo warranto action. Plaintiff may be allowed to intervene in that action if he wished to do so, but he is not required to do so nor is there a requirement that the state court allow him to do so if he were to make such a request. The Ninth Circuit has held Younger abstention can only be applied against a party “actually involved in state litigation.” Benavidez v. Eu, 34 F.3d 825, 832 (9th Cir. 1994). Based on Plaintiff’s current absence from the quo warranto action, Younger abstention is not appropriate.
In earlier briefing, the parties also addressed the possibility that the Court should abstain under Railroad Commission v. Pullman Co., 312 U.S. 496 (1941). Pullman abstention applies only upon the satisfaction of three criteria. Those criteria are: “(1) the federal plaintiff’s complaint requires resolution of a sensitive question of federal constitutional law; (2) the constitutional Based on Defendants’ failure to present controverting evidence, the standard of review and burden of proof issues have little impact. That is, even if a more deferential standard of review applied and the burden of proof were higher, Plaintiff would still be entitled to relief.
The question could be mooted or narrowed by a definitive ruling on the state law issues; and (3) the possibly determinative issue of state law is unclear.” Potrero Hills Landfill, Inc. v. County of Solano, 657 F.3d 879, 888 (9th Cir. 2011). Pullman abstention generally is not proper if “there is no uncertain question of state law.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 236 (1984). Thus, abstention is not appropriate when the outcome turns on the “facts of the particular case” rather than some uncertainty regarding the governing law. Pearl Inv. Co. v. City and County of San Francisco, 774 F.2d 1460, 1465 (9th Cir. 1985). Here, Defendants have not identified any uncertain question of state law. The parties agree that Arizona law directs how residency is to be defined and the only disagreement appears to be onthe factual issues surrounding Plaintiff’s residence in Quartzsite. Therefore, Pullman abstention is not appropriate.
III. Plaintiff Was Qualified for Town Council
In Count 2 of his complaint, Plaintiff claims Defendants misapplied the one-year residency requirement in Arizona law. In particular, Plaintiff claims the factual determination by the Town Council that he was not a resident of Quartzsite was wrong. The parties have not specified whether the Court must conduct a de novo inquiry on this issue or if a more deferential review is required.
The parties have also not identified Plaintiff’s burden of proof. Absent guidance from the parties, the Court will conduct a de novo inquiry and use the preponderance of the evidence standard.5 Arizona law provides [a] person shall not be a member of a city or town council unless, at the time of the election, the person is . . . a qualified elector residing within the city or town at the time of the election, and has resided in the city or town for one year next preceding the election. A.R.S. § 9-232(A). The statutory definition of “resident” is “an individual who has . . .actual physical presence in the political subdivision, combined with an intent to remain.” A.R.S. § 16-101(B).
The Court admits to some confusion regarding Defendants’ decision to disqualify Plaintiff based on these statutes. There can be no serious dispute that Plaintiff had an “actual physical presence” in Quartzsite for close to three years prior to the election. Plaintiff’s physical presence is evidenced by employment records, rental records, utility bills, documents connected to the purchase of his home, and Plaintiff’s own uncontradicted testimony. Thus, the only possible basis for dispute is whether Plaintiff had an “intent to remain” in Quartzsite.
On the issue of intent, Plaintiff testified he formed such an intent not long after he moved to Quartzsite in July 2009. Defendants did not offer any evidence casting doubt on Plaintiff’s stated intent. In fact, all the evidence supported Plaintiff’s testimony. Plaintiff owns a home in Quartzsite and all of his vehicles and personal property are in Quartzsite. Also, Plaintiff’s wife testified that she spends certain days of the week in Quartzsite and plans to live there full-time once she retires from her job in Yuma. Plaintiff clearly had an “intent to remain” in Quartzsite at least one year prior to the election. Defendants presumably had some basis for determining Plaintiff was not a resident of Quartzsite but Defendants chose not to present the Court with that basis. In short, the Court is left with uncontroverted evidence that Plaintiff was a resident of Quartzsite for more than one year prior to the election. Thus, Plaintiff is entitled to declaratory judgment on Count 2. The parties will be directed to submit a proposed order specifying the precise actions Defendants should be ordered to take to effectuate Plaintiff’s success on Count 2.
IV. Count 1 Will Be Dismissed
Plaintiff’s request for a temporary restraining order, motion for preliminary injunction, and supplemental briefing focused on Count 1 and his belief that his federal right to intrastate travel was being infringed by application of the one-year residency requirement. The relief sought in Count1, however, is identical to the relief sought in Count 2. As set forth above, Plaintiff is entitled to relief on Count 2. Therefore, the Court need not address Count 1.
See Northwest Austin Mun. Utility Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) (courts should “not decide a constitutional question if there is some other ground upon which to dispose of the case”).
V. Count 3 Will Be Dismissed
In Count 3, Plaintiff seeks declaratory relief regarding the provision of Quartzsite code that prohibits individuals who owe Quartzsite money from serving as an elected official. The provision at issue prevented Mr. Foster from taking his seat as Mayor. Plaintiff believes he has standing to raise this claim because he “intend[ed] to work closely with [Mr. Foster] to improve public policy in” Quartzsite. (Doc. 19 at 11). By refusing to seat Mr. Foster, Plaintiff’s plans to work with Mr. Foster are being thwarted. The Court will dismiss this claim for lack of standing. Stormans, Inc v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (standing may be considered sua sponte).
“Standing includes two components: Article III constitutional standing and prudential standing.” Yakima Valley Memorial Hosp. v. Washington State Dept. of Health, 654 F.3d 919, 932 (9th Cir. 2011). A plaintiff must have both types of standing and the Court need not address both if one type is found lacking. See Estate of McKinney v. United States, 71F.3d 779, 782 (9th Cir. 1995) (court need not address Article III standing if plaintiff lacks prudential standing). Prudential standing requires the plaintiff “(1) assert his own rights, rather than rely on the rights or interests of third parties; (2) allege an injury that is more than a generalized grievance; and (3) allege an interest that is arguably within the zone of interests protected or regulated by the statute or constitutional guarantee in question.” Hong Kong Supermarket v. Kizer,
830 F.2d 1078, 1081 (9th Cir. 1987). These requirements are disjunctive, meaning the “[f]ailure to satisfy any of these . . . requirements defeats standing.” Id. Plaintiff has not satisfied the first or second requirement. On the first requirement, Count 3 primarily is an attempt to vindicate the rights of Mr. Foster rather than Plaintiff. The main focus of Count 3 is the denial of Mr. Foster’s right to sit as Mayor. It is not clear that Mr. Foster wishes to vindicate this right and Mr. Foster would clearly be the preferable individual to bring a challenge regarding this right. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 80 (1978) (noting complications of allowing plaintiff to raise rights of third-party). And on the second requirement, Plaintiff’s injury is in large part one shared by all residents of Quartzsite. All residents of Quartzsite have an interest in having the duly elected mayor sit. Plaintiff claims he is suffering more than a generalized grievance because he planned “to work closely with the Mayor Elect to improve public policy in Quartzsite.” But this injury is far too tenuous; many individuals in Quartzsite could formulate a substantially similar injury. See Warth v. Seldin, 422 U.S. 490, 499 (1975) (“generalized grievance” is a harm “shared in substantially equal measure by all or a large class of citizens”). For example, any resident could claim he was being injured because he was not being governed by the duly elected Mayor. Generalized injuries of this type are not sufficient.See Schlesinger v. Reservists Committee to Stop the War, 18 U.S. 208, 217 (1974) (the “generalized interest of all citizens in constitutional governance” is insufficient for standing purposes). Because Plaintiff’s alleged injury is substantially similar to that shared by all residents of Quartzsite, he lacks prudential standing. Count 3 will be dismissed. VI. Count IV Count IV appears to have been added to Plaintiff’s complaint to ensure the presence of federal jurisdiction. It is unclear whether Plaintiff will still have an interest in pursuing that claim now that he has obtained the relief that most directly impacts him. The Court is, of course, willing to hear the claim but there is serious doubt whether to do so would be a wise use of resources by the Court and the parties. Quartzsite has admitted that it “inadvertently failed to submit” the ordinance for approval. Quartzsite has now done so. (Doc. 36 at 7). Based on this submission, it is unclear why Quartzsite is attempting to enforce the ordinance at this time. Alternatively, if the ordinance were to obtain clearance, it is unclear what relief the Court could grant. The parties will be ordered to confer regarding Count IV and make every effort to settle that claim.
VII. Summary
Plaintiff is entitled to relief on Count 2. The parties will be directed to confer and submit a proposed order regarding the appropriate type of relief on that count. Count 1 will be dismissed based on the doctrine of constitutional avoidance and Count 3 will be dismissed due to lack of standing. The parties will be directed to submit a joint status statement regarding Count 4.
Accordingly
IT IS ORDERED
no later than July 24, 2012 the parties shall confer and file a joint proposed order setting forth the relief the Court should grant based on Plaintiff’s success on Count 2.
IT IS FURTHER ORDERED
Counts 1 and 3 are DISMISSED.
IT IS FURTHER ORDERED
no later than July 27, 2012 the parties shall file a joint statement regarding Count 4. DATED this 20th day of July, 2012.
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