Monday, November 22, 2010


The Ninth Circuit Court of Appeals has been busy with case number CV 10-1413-PHX-SRB. That's the on-going appeal of Arizona Federal District Judge Susan Bolton's injunction against Arizona's SB 1070. You can read Judge Bolton's lengthy and well reasoned Order on line at:$file/10-1413-87.pdf?openelement.

The docket at the Federal Court of Appeals for the Ninth Circuit already has 131 entries and the case is nowhere near resolution. Part of the large number of entries has to do with the sheer numbers of folks who want to put in their two cents worth by filing friend of the court, or amici curiae, briefs. Here's the latest list of those whom the Court of Appeals turned down, denying them the privilege of filing those briefs.

1. Ray Elbert Parker wanted to file in support of a Motion to Dismiss purportedly filed in the District Court. Judge Bolton's Order denying Ray Ellis Parker was transmitted to the Court of Appeals as docket item 131. Parker is wrong in thinking that a Motion to Dismiss was filed in the District Court.  Parker apparently mixed his chicken manure in with his applesauce.  Parker wanted to support the "Defendans Opposition to Motion to Dismiss filed by Appellant."  No such motion was ever made by the United States. Parker gave a Virginia address.  I suspect he is the disgruntled former teacher who has repeatedly sued a Maryland school district because of his termination.

2. Matthew D. Pinnavaia's filed a Motion to file an Amicus Curiae brief, but failed to attach that brief to his motion. Judge Bolton denied Pinnavaia's motion.  Pinnavaia claims to be an American Citizen in the tradition of James Madison and Thomas Jefferson. 

3. Michigan's Senate Majority Leader Mike Bishop filed a Motion to file an Amicus Curiae brief, but failed to attach that brief to his motion. Judge Bolton said Bishop was unclear about what position his brief would support as the only pending matter is a Motion to Dismiss.

4. Arizona State Senator Russell B. Pearce won't get to Intervene in this case. Pearce wrote the statute under scrutiny, Arizona SB 1070. Judge Bolton correctly sets forth the four part test of Federal Rule of Civil Procedure 24(a)(2), which a party seeking to intervene must meet:

“(1) the motion must be timely; (2) the applicant must claim a ‘significantly protectable’ interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action."

Pearce cited no authority that he, in his official capacity, had a legal right to intervene. A legislator may assert that right where the executive fails to adequately represent the interests of the statute in question. That is not the case here.

Pearce fails to state a sufficiently protectable interest relating to SB 1070. Mere authorship is not enough for the District Court to allow him to intervene. The Senator from Mesa fails the second part of the test.

The failure of the second part of the four part test leads to Pearce's failure under the third part of the test. Pearce is not situated so that the disposition of the action may as a practical matter impair or impede its ability to protect that interest. Pearce may have strategy issues with Arizona's legal team, but he is not in a position to do a better job than Arizona's legal team.

Failure to meet any one of the four tests set forth in Federal Rule of Civil Procedure 24(a)(2) is fatal.

5. God, being represented by one D.Q. Mariette Do-Nguyen, will not be permitted to proceed. Really, that is the claim which was made. The pleading party identified herself to the District Court as:
Mariette Do-Nguyen, a legal immigrant from Vietnam during the evacuation of 1975, sponsored by the United States government, became a U.S. citizen in June, 1982. I am the Almighty Eternal Creator’s Messenger of Covenant, and founder and head of the Kingdom of Heaven in the earthly realm. Obeying the Almighty Eternal Creator’s instructions, I act as His representative in the United States Federal Court, fill [sic] this Motion for Filling [sic] Third-Party Complaint..."
Read her pleading at: 

Judge Bolton made it clear that God's alleged representative is not a party to the case and cannot appeal. The Court of Appeals issued its mandate affirming Judge Bolton's order as to D.Q. Mariette Do-Nguyen.

Remember, the Arizona appealed the District Court's Order, The United States and We the People are the plaintiffs in the action from the trial court.  In the Ninth Circuit Arizona is the appellant and the United States is the appellee. Arizona has filed a Motion to Dismiss the appeal. The issues raised by the parties will be addressed in another posting.

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