Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Richard J. Harris #013859 Richard J. Harris Law Offices, P.C. 4445 East Holmes Avenue, Suite 106 Mesa, Arizona 85206-3398 (480) 854-3500 Fax (480) 654-3669 David C. Larkin #006644 DAVID C. LARKIN, P.C. 4645 South Lakeshore Drive, Suite 6 Tempe, Arizona 85282 Telephone (480) 491-2900 Fax (480) 755-4825 Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Matthew Shaffer, Plaintiff, vs. State of Arizona Citizens Clean Election Commission; Colleen Conner and Chad Jacobs, husband and wife; Defendants. Pursuant to Federal Rules of Evidence Plaintiff Matthew Shaffer hereby requests the Court to take judicial notice pursuant to Federal Rules of Evidence 201 of the following facts: 1. Arizona Revised Statutes §§ 38-443, 41-1010, and 13-2311 as set forth in No. CIV 03-2344-PHX-FJM PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE

Plaintiff's Exhibit 2, page 5, Defendant Colleen Connor's letter to DPS regarding plaintiff, already admitted into evidence by stipulation. These statutes are relevant to, inter alia, Mr. Shaffer's slander claim and defendant Connor's affirmative defense of truth. 2. (A) Law on which Shaffer's whistleblower claim is based. The right to due process and equal protection, privileges and treatment under the law pursuant Article 2, Sections 4 and 13 of the Arizona Constitution and pursuant to the 14th Amendment of the United States Constitution incorporated into the Arizona Constitution by Article 2, Section 3.

Case 2:03-cv-02344-FJM

Document 97

Filed 09/13/2005

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(B)

ARS § 38-503(B), regarding recusal of public officers and employees, as set forth in the description of witness Jessica Funkhouser's recusal of herself in Exhibit 39, page 4, footnote 4, and stated in her letter to the CCEC, Exhibit 30, both already admitted into evidence by stipulation.

(C) (D)

ARS § 16-956 regarding the CCEC's duty to publish bookkeeping methods A.A.C. Title 2, Chap. 20, Art. 3, Section R2-20-301(A) is a rule promulgated under statutory authority which prescribes standards of ethical conduct for Commissioners and employees of the Commission relating to conflicts of interest and requires strict and absolute fairness and impartiality in the administration of the law. [These rules are promulgated pursuant to A.R.S. § 16-956(C) "The commission may adopt rules to carry out the purposes of this article and to govern procedures of the commission."]

(E)

ARS § 38-231(A) and (G) regarding State employees loyalty oath requiring impartial discharge of duties.

These constitutional provisions and statutes are relevant to, inter alia, Mr. Shaffer's A.R.S. § 12-1501 Whistleblower wrongful termination claim. See e.g., Judith Basin Land Co. v. Fergus County, Mont., 50 F.2d 792, 794 (9th Cir. 1931) ("Courts of the United States take judicial notice of the laws of any state, whether depending on state statutes or judicial decisions.") Plaintiff proposes the following instructions for the Court to give the jury during trial when the statutes are first disclosed by citation in an exhibit or by testimony and plaintiff's counsel requests judicial notice on the record: 1. Arizona Revised Statutes § 38-443, 41-1010 and 13-2311:

I am now judicially noticing the fact that it is the law in the State of Arizona in its statutes that pursuant to: Arizona Revised Statutes § 38-443, titled "Nonfeasance in public office; classification",

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A public officer or person holding a position of public trust or employment who knowingly omits to perform any duty the performance of which is required of him by law is guilty of a class 2 misdemeanor unless special provision has been made for punishment of such omission. and pursuant to Arizona Revised Statutes § 41-1010, titled "Complaints; public record," Notwithstanding any other law, a person shall disclose the person's name during the course of reporting an alleged violation of law or rule. During the course of an investigation or enforcement action, the name of the complainant shall be a public record unless the affected agency determines that the release of the complainant's name may result in substantial harm to any person or to the public health or safety. and pursuant to Arizona Revised Statutes § 13-2311, titled "Fraudulent schemes and practices; wilful concealment; classification," A. Notwithstanding any provision of the law to the contrary, in any matter related to the business conducted by any department or agency of this state or any political subdivision thereof, any person who, pursuant to a scheme or artifice to defraud or deceive, knowingly falsifies, conceals or covers up a material fact by any trick, scheme or device or makes or uses any false writing or document knowing such writing or document contains any false, fictitious or fraudulent statement or entry is guilty of a class 5 felony. B. For the purposes of this section, "agency" includes a public agency as defined by § 38-502, paragraph 6. 2. Law on which Shaffer's whistleblower claim is based. A. Arizona Constitution:

I am now judicially noticing the fact that it is the law in the State of Arizona that citizens are entitled to due process and equal protection, equal privileges, and equal treatment under the laws of Arizona pursuant to the Arizona Constitution.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pursuant to:

B.

Arizona Revised Statutes § 38-503(B):

I am now judicially noticing the fact that pursuant to Arizona Revised Statutes § 38503(B), public officers and employees are forbidden by law to participate in any manner as an officer or employee in any decision in which he or she has a substantial interest. C. Arizona Revised Statutes § 16-956(A)(4) & (6).

I am now judicially noticing the fact that it is the law in the State of Arizona

Arizona Revised Statutes § 16-956(A)(4) and (6) that A. The [Clean Elections] commission shall: ... 4. Prepare and publish instructions setting forth methods of bookkeeping and preservation of records to facilitate compliance with this article and explaining the duties of persons and committees under this article. ... 6. Adopt rules to implement the reporting requirements of § 16-958, subsections D and E. D. Arizona Administrative Code; Title 2. Administration, Chapter 20;

Citizens Clean Elections Commission; Article 3. Standard of Conduct for Commissioners and Employees. Section R2-20-301. I am now judicially noticing the fact that it is the law in the State of Arizona in its administrative regulations pursuant to Arizona Administrative Code for the Citizens Clean Elections Commission, Section R2-20-301 that it is a standard of conduct that: "A. The Commission is committed to implementing the Act in an honest,

independent, and impartial fashion and to seeking to uphold public confidence in the integrity of the electoral system. To ensure public trust in the fairness and integrity of the Arizona elections process, all Commissioners and employees must observe the highest standards of conduct. This Article prescribes standards of ethical conduct for Commissioners and employees of the Commission relating to conflicts of interest arising from outside -4-

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employment, private businesses, professional activities, political activities, and financial interests. The avoidance of misconduct and conflicts of interest on the part of the Commissioners and the employees through informed judgment is indispensable to the maintenance of these prescribed ethical standards. Attainment of these goals necessitates strict and absolute fairness and impartiality in the administration of the law. B. This Article applies to all persons included within the terms "employee" and "Commissioner" of the Commission." E. Arizona Revised Statutes § 38-321(A) and (G) I am now judicially noticing the fact that it is the law in the State of Arizona pursuant to Arizona Revised Statutes § 38-321 and subsections (A) and (G), that each State of Arizona officer and employee is required to swear an written oath to "faithfully and impartially discharge the duties" of their office "according to the best of [their] ability." Respectfully submitted this 12th day of September, 2005. DAVID C. LARKIN, P.C. By: /s David C. Larkin David C. Larkin Attorney for Plaintiff AND Richard J. Harris RICHARD J. HARRIS LAW OFFICES, P.C. Attorney for Plaintiff Electronic notice and service of documents provided to: Jay A. Zweig, Esq. Melissa R. Berren, Esq. Gallagher & Kennedy, P.A. 2575 East Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 Attorneys for Defendants /s David C. Larkin

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Case 2:03-cv-02344-FJM

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