In Propria Persona

without Prejudice

SUPREME COURT OF ARIZONA

IN RE: ) Arizona Supreme Court

) No. HC-01-0016

BENJAMIN FRANKLIN COOK III, )

) Maricopa County Superior

Petitioner. ) Court No. CR2000-013042

__________________________________)

)

People of the United States ) REQUEST FOR RECONSIDERATION

of America ex relatione ) OF APPLICATION FOR LEAVE

Lonnie G. Schmidt, ) TO INTERVENE BY RIGHT

)

Applicants. )

__________________________________)

COME NOW the People of the United States of America (hereinafter “Applicants”) ex relatione Lonnie G. Schmidt, Citizen of one of the United States of America (“Relator”), respectfully to request reconsideration of this Court’s ORDER dated September 11, 2001 A.D., denying Applicants’ APPLICATION FOR LEAVE TO INTERVENE BY RIGHT.

The following meritorious and non-frivolous reasons are offered for this Court’s careful reconsideration, to wit:

Applicants argue that this Court has a duty to rule on the question whether or not the great Writ of Habeas Corpus has been suspended pursuant to Law. Applicants have an obvious interest in a direct ruling on this point, by the highest Court in Arizona State. See Full Faith and Credit Clause in the U.S. Constitution.

This Court will please take formal judicial notice that the Arizona State Constitution expressly forbids the Arizona Legislature from suspending this Writ. The necessity of legislative action thus devolves entirely upon the Congress of the United States to determine first whether or not the requisite conditions exist, and then to decide whether or not to suspend the Writ, if the requisite conditions do exist.

Congress is under no obligation to suspend the Writ, however, even if the requisite conditions do exist. Accordingly, legislative action by the Congress of the United States is the sine qua non of Writ suspension. Such legislative action would be announced in the Congressional Record and later recorded in the federal Statutes at Large. Lastly, before it became law, the President would be required to sign that Bill.

To Applicants’ knowledge, notwithstanding an horrific terrorist attack upon the World Trade Center in New York City in recent days, Congress has still not suspended the Writ of Habeas Corpus, nor has the President signed any Bills to that effect. See Article I, Section 7, Clause 3. It would be logical to assume that the Great Writ was properly not suspended by Congress during extended periods of relative domestic tranquility, such as existed prior to September 11. See Preamble.

Applicants also argue that this Court’s ORDER of September 11 is written in language that necessarily implies ipso facto that the Writ of Habeas Corpus has not been suspended.

In the introductory paragraph of that ORDER, it appears to this Court “that Petitioner is pursuing habeas corpus relief in the superior court and, if relief is denied, can pursue a timely appeal or special action relief in the Court of Appeals.”

If the Writ has been suspended, it would have been entirely inappropriate for the Court to make this procedural observation. The Writ of Habeas Corpus is a remedy that categorically must still be available to Petitioner if, upon denial by the Superior Court, Petitioner can pursue a timely appeal or special action relief in the Court of Appeals (and presumably pursue timely appeal in this Court after that).

The Court should clarify this observation in a manner that leaves no doubt to Applicants that this remedy has not been suspended pursuant to law, for example by documenting same in published findings of fact and conclusions of law. Granting leave for Applicants to intervene will permit Them to press this pivotal question to final judgment, freeing Petitioner to focus on merits of a more idiosyncratic nature.

Furthermore, upon a final determination that the Writ of Habeas Corpus has not been suspended by the Congress of the United States, Applicants argue that They should be allowed to intervene for purposes of moving this Court to examine the actual practices of lower Arizona State courts. Policies, customs and practices are subject to judicial review, like any other government action.

To illustrate with a relatively minor administrative matter, Relator was never served with a Clerk’s copy of this Court’s ORDER of September 11. The first day on which Relator was able to view that ORDER was September 21, when a facsimile was transmitted to Relator’s business office by Petitioner’s spouse. Such a practice appears extraordinary and unnecessary, and it should be corrected by supervisory oversight of this Court.

More to the point, this Court has supervisory responsibility for all inferior Arizona State courts. To the extent that the Writ of Habeas Corpus has been suspended de facto -- by policy, practice or custom, and not by law -- this Court has another affirmative, and potentially more extensive, duty to mandate appropriate judicial changes in all Habeas Corpus proceedings, either by standing ORDER, rule amendments, or published Court precedent.

Applicants have already argued that the practice of “demoting” the Great Writ to a “special action” is a matter justifying immediate supervisory attention. Applicants think it advisable, and in the broadest public interest, that They be afforded an opportunity to elaborate on the dubious nature of this practice. The Petition Clause does not allow for dubious intrusions of any kind, because the Right to Petition government is a fundamental Right.

It is not enough for this Court to find that the Great Writ is a remedy that is still available. Upon such a conclusion of law, this Court would then be obligated to examine de minimis all procedural irregularities that have surfaced in the instant case, and to correct any such irregularities that might have prejudiced any of Petitioner’s substantive or procedural rights.

Relator is in a unique position to brief this Court on the many ways in which prejudice has already resulted from observable practices of the Maricopa County Superior Court, as well as other State and federal courts, and executive agencies.

Remedy Requested

All premises having been duly considered, Applicants respectfully request that this honorable Supreme Court timely reconsider its ORDER of September 11, 2001 A.D., denying Their Application for Leave to Intervene by Right, and that Applicants be granted leave to join Petitioner as Proper Parties ex relatione Lonnie G. Schmidt, Citizen of ONE OF the United States of America, in all future proceedings in the instant case.

VERIFICATION

I, Lonnie G. Schmidt, Sui Juris, hereby verify, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that the above statement of facts and laws is true and correct, according to the best of My current information, knowledge, and belief, so help me God, pursuant to 28 U.S.C. 1746(1). See Supremacy Clause.

Dated: September 24, 2001 A.D.

Signed: /s/ Lonnie G. Schmidt

______________________________________________

Printed: Lonnie G. Schmidt, Sui Juris

PROOF OF SERVICE

I, Lonnie G. Schmidt, Sui Juris, hereby certify, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that I am at least 18 years of age, a Citizen of ONE OF the United States of America, and that I personally served the following document(s):

REQUEST FOR RECONSIDERATION OF

APPLICATION FOR LEAVE TO INTERVENE BY RIGHT

by placing one true and correct copy of said document(s) in Priority United States Mail, with postage prepaid and properly addressed to the following:

Office of Attorney General

State of Arizona

1275 West Washington

Phoenix 85007

ARIZONA, USA

Benjamin Franklin Cook III

c/o County Jail

225 West Madison Street

Phoenix 85003

ARIZONA, USA

Sheriff Joe Arpaio

Office of the Sheriff

County of Maricopa

102 West Madison Street

Phoenix 85003

ARIZONA, USA

Dated: September 24, 2001 A.D.

Signed: /s/ Lonnie G. Schmidt

______________________________________________

Printed: Lonnie G. Schmidt, Sui Juris