MOT-JUDICIAL-NOTICE-MASK-020721.pdf -

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1 JOSEPH MARTIN MCGHEE P.O. Box 91 2 Flagstaff, AZ 86002 Tel: (928) 600-0954 3 [email protected] Petitioner, in Pro Per 4 5 6 IN THE SUPREME COURT 7 STATE OF ARIZONA 8 JOSEPH MARTIN MCGHEE, No. CV-21-0002-SA 9 Petitioner, 10 v. 11 PAUL DEASY, in his official capacity MOTION FOR JUDICIAL as Mayor of the City of Flagstaff; THE NOTICE 12 CITY OF FLAGSTAFF, 13 Respondents, 14 and 15 DOUG DUCEY, in his official capacity as Governor of the State of Arizona, 16 Real Party in Interest. 17 18 19 20 Undersigned Petitioner pursuant to Rule 7(i), Ariz.R.P.Spec.Act., Rule 6, 21 Ariz.R.App.P., and Rule 201, Ariz.R.Evid., respectfully moves the Court to take 22 judicial notice of certain facts from published government documents whose 23 authenticity are not reasonably subject to debate. The grounds for this request 24 are fully set forth in the accompanying memorandum. Petitioner certifies that 25 this Motion complies with Rule 4(b), Ariz.R.Civ.App.P. 26 27 28 1 Motion for Judicial Notice 1 I. INTRODUCTION 2 Arizona Rules of Evidence provide that a court “may judicially notice a fact 3 that is not subject to reasonable dispute because it: (1) is generally known within 4 the trial court’s territorial jurisdiction; or (2) can be accurately and readily 5 determined from sources whose accuracy cannot reasonably be questioned.” 6 Ariz.R.Evid. 201(b). The Court moreover “must take judicial notice if a party 7 requests it and the court is supplied with the necessary information.” Ariz.R.Evid. 8 201(c)(2). “The court may take judicial notice at any stage of the proceeding.” 9 Ariz.R.Evid. 201(d). 10 Official government publications require no extrinsic evidence of 11 authenticity in order to be admitted. See generally Fed.R.Evid. 902 (“[O]fficial 12 [p]ublications … issued by a public authority” are self-authenticating). Federal, 13 state and municipal websites, including those of governmental agencies are 14 likewise self-authenticating publications. See, e.g., Williams v. Long, 585 F. 15 Supp. 2d 679, 688 n. 4 (D. Md. 2008) (holding that Rule 902(5) self- 16 authenticating “other publications” includes information posted on the Internet by 17 a qualifying public authority). Courts are therefore permitted to take judicial 18 notice of information contained on state and federal government websites whose 19 accuracy cannot reasonably be questioned. See United States v. Garcia, 855 F.3d 20 615, 621-22 (4th Cir. 2017) (taking notice of excerpts from United States 21 Citizenship and Immigration Services website, including the USCIS Policy 22 Manual explaining the naturalization process) (“This court and numerous others 23 routinely take judicial notice of information contained on state and federal 24 government websites.”); Ohio Valley Envtl. Coal., Inc. v. Fola Coal Co., No. 25 2:12-3750, 2013 WL 6709957 (S.D. W. Va. Dec. 19, 2013) (taking judicial notice 26 of information found on the website of the West Virginia Secretary of State). 27 28 2 Motion for Judicial Notice 1 In accordance with Ariz.R.Evid. 201(b) Petitioner seeks judicial notice of 2 public documents and facts contained therein the accuracy of which cannot 3 reasonably be questioned. 4 II. SPECIFIC REQUEST FOR JUDICIAL NOTICE 5 Petitioner requests that this Court take judicial notice of the following facts 6 from official government publications and related documents, none of which can 7 be reasonably questioned: 8 A. Tempe’s “Face Covering Requirement” 9 On June 18, 2020 the City of Tempe pursuant to Executive Order 2020-40 10 and A.R.S. § 26-311 enacted by Proclamation a “face covering requirement,” (See 11 APP-8,9)1, that remains in effect as of the date of this Motion’s filing. 12 1. Tempe’s “Face Covering Requirement” Contains A Criminal Enforcement Provision 13 “In compliance with Executive Order No. 2020-40, 14 enforcement of this proclamation shall focus issued by the Arizona Department of Health Services, in order to promote the 15 health and safety contain the spread of COVID-19, Individuals shall also be given an opportunity to comply with action is 16 taken. Continued failure to comply with an emergency proclamation is a misdemeanor[.]” 17 2. Tempe’s “Face Covering Requirement” Contains A Business 18 Enforcement Provision 19 “Private businesses and venues shall enforce this proclamation by asking any person failing to comply with the emergency 20 proclamation to leave their premises. By allowing people / patrons to remain on the premise without a face covering, as 21 described in paragraph 2, is violation of this emergency proclamation. A continued failure to comply with an 22 emergency proclamation by a business owner and/or responsible party is a misdemeanor[.]” 23 24 25 26 1 See https://www.tempe.gov/home/showdocument?id=83069 (accessed Feb. 7, 2021) 27 28 3 Motion for Judicial Notice 1 B. Scottsdale’s “Face Covering Requirement” 2 On January 12, 2021 the City of Scottsdale pursuant to Executive Order 3 2020-40 and A.R.S. § 26-311 enacted by Proclamation a “face covering 4 requirement,” (See APP-10 - 13)2, that remains in effect as of the date of this 5 Motion’s filing. 6 1. Scottsdale’s “Face Covering Requirement” Has A Criminal Enforcement Provision 7 “In compliance with Executive Order No. 2020-40, 8 enforcement of this Proclamation shall focus first on education and providing guidance issued by the Arizona Department of 9 Health Services in order to promote the health and safety of Scottsdale residents, as well as to further contain the spread of 10 COVID-19. Individuals shall also be given an opportunity to comply with the proclamation before any enforcement action is 11 taken. Continued failure to comply with an emergency proclamation is a misdemeanor.” 12 13 2. Scottsdale’s “Face Covering Requirement” Contains A Business Enforcement Provision 14 “Private businesses and venues shall enforce this Proclamation 15 by asking any person failing to comply with the emergency proclamation to leave their premises. Allowing people/patrons 16 to remain on the premises without a face covering, as described above, is a violation of this emergency proclamation. A 17 continued failure to comply with an emergency proclamation by a business owner and/or responsible party is a 18 misdemeanor.” 19 C. Peoria’s Face Covering Requirement 20 On June 19, 2020 the City of Peoria pursuant to Executive Order 2020-40 21 and A.R.S. §§ 26-301 – 317 enacted by Proclamation a “face covering 22 requirement,” (See APP-14 - 18)3, that remains in effect as of the date of this 23 Motion’s filing. 24 2 See https://www.scottsdaleaz.gov/Assets/ScottsdaleAZ/News/ 25 News+Images/News+documents/Scottsdale-Emergency-Proclamation-01- 13-2021.pdf (accessed Feb. 7, 2021) 26 3 See https://www.peoriaaz.gov/home/showpublisheddocument? id=24166 (accessed Feb. 7, 2021) 27 28 4 Motion for Judicial Notice 1 1. Peoria’s “Face Covering Requirement” Has A Criminal Enforcement Provision 2 “In order to promote best practices and accomplish the goal of 3 mitigation and voluntary compliance, a person who violates Section I, Face Covering Order, shall first be notified of the 4 provisions of the Order and the policies contained herein and given an opportunity to comply prior to any enforcement action 5 being taken. Any person who knowingly and willfully fails to comply is in violation of the Face Covering Order and is 6 subject to the penalties set forth in A.R.S § 26-317[.]” 7 2. Peoria’s “Face Covering Requirement” Contains A Business 8 Enforcement Provision 9 “Businesses, restaurants, and bars shall enforce Executive Order 2020-40, ‘Containing the Spread of COVID-19; 10 Continuing Arizona Mitigation Efforts’ and pursuant to that Executive Order, the Requirements for Businesses and the 11 Requirements for Restaurants and Bars (collectively the ‘Requirements’) and this Proclamation by asking any person 12 failing to comply to leave their premises. The City shall also have any recourse against businesses, restaurants, and bars for 13 failure to enforce Executive Order 2020-40 and this Proclamation as authorized by law.” 14 15 D. Population Of Arizona And Certain Political Subdivisions 16 1. Population Of Arizona 17 The most recent U.S. Census data for Arizona shows a population of 7.27 18 million. (See APP-19)4 19 2. Population Of Tempe 20 The City of Tempe’s official website lists a population for the city of 21 195,805. (See APP-20)5 22 23 24 4 See https://data.census.gov/cedsci/profile?g=0400000US04# 25 (accessed Feb. 7, 2020) 5 See https://www.tempe.gov/government/strategic-management-and- 26 diversity/diversity/community-demographics-and-information (accessed Feb. 7, 2021) 27 28 5 Motion for Judicial Notice 1 3. Population Of Scottsdale 2 The City of Scottsdale’s official website lists a population for the city of 3 258,069. (See APP-21)6 4 4. Population Of Peoria 5 The City of Peoria’s official website lists a population for the city of 6 175,961. (See APP-22)7 7 E. The Populations Of These Cities Represent Nearly 9% Of All Arizona Residents 8 With a total Arizona population of 7.27 million, these cities – with a 9 combined population of 629,835 – represent 8.7% of the entire population of 10 Arizona; hundreds of thousands of Arizonans who may be subject to arrest and 11 prosecution for violation of these “Face Covering Requirements.” 12 III. CONCLUSION 13 As set forth in this Motion the Court should take judicial notice of these 14 facts from government source whose authenticity are not reasonably subject to 15 dispute. 16 17 Dated: February 7, 2021 18 19 Respectfully Submitted, 20 21 /s/ Joseph Martin McGhee 22 Petitioner, in Pro Per 23 24 25 6 See https://www.scottsdaleaz.gov/about (accessed Feb. 7, 2021) 26 7 See https://www.peoriaaz.gov/residents/about-peoria (accessed Feb. 7, 2021) 27 28 6 Motion for Judicial Notice APPENDIX APP-7 APP-8 APP-9 APP-10 APP-11 APP-12 APP-13 APP-14 APP-15 APP-16 APP-17 APP-18 APP-19 APP-20 APP-21 APP-22