                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


             ANTHONY-ERIC EMERSON, Plaintiff/Appellant,

                                        v.

    KAREN L. O’CONNOR; JEANNE GARCIA, Defendants/Appellees.

                             No. 1 CA-CV 15-0094
                               FILED 1-5-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2014-006803
               The Honorable Randall H. Warner, Judge

                                  AFFIRMED


                                   COUNSEL

Anthony-Eric Emerson, Tucson
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Lisa M. Hemann
Counsel for Defendants/Appellees
                     EMERSON v. O'CONNOR et al.
                        Decision of the Court




                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson joined.


M c M U R D I E, Judge:

¶1           Emerson appeals the trial court’s order dismissing his claims
against Judges Garcia and O’Connor of the Maricopa County Superior
Court (collectively, the “Defendants”). For the reasons that follow, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2              In April 2013 and March 2014, Emerson was a defendant in a
criminal matter in which first Judge Garcia and then Judge O’Connor
presided.1 In his civil complaint, Emerson alleged Defendants coerced and
threatened him into accepting a plea agreement and attempted to force him
into accepting legal representation. Emerson alleged these actions violated,
inter alia, his Fifth and Fourteenth Amendment rights under the United
States Constitution and requested $6,000,000 in damages.

¶3            Defendants moved to dismiss Emerson’s complaint pursuant
to Arizona Rule of Civil Procedure 12(b)(6) for failure to state a claim.
Defendants argued that absolute judicial immunity precluded any liability
on Emerson’s claims, and Emerson’s pleadings failed to state a claim
pursuant to 42 U.S.C. § 1983. Defendants also pointed out that Emerson
failed to timely file a notice of claim pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-821.01(A). Emerson opposed the motion to dismiss
arguing that Defendants were not acting in their judicial capacity when the
alleged actions took place, and they waived judicial immunity. Emerson
also argued that he sufficiently pled and fulfilled the requirements of a
timely notice of claim. The superior court granted Defendants’ motion to
dismiss based on judicial immunity, failure to state a claim, and the notice


1      We take judicial notice of CR2010-139292-001 and CR2010-138001.
Emerson was charged with armed robbery, under A.R.S. § 13-1904, as well
as robbery and a narcotic drug violation, under A.R.S. §§ 13-1902 and 13-
3408, respectively.


                                     2
                        EMERSON v. O'CONNOR et al.
                           Decision of the Court

of claim was untimely. Emerson timely appealed and we have jurisdiction
pursuant to A.R.S. § 12-2101(A)(1).

                                  DISCUSSION

¶4            We review a trial court’s order dismissing a complaint
pursuant to Rule 12(b)(6) de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355,
¶ 7 (2012). We assume the truth of all adequately pled allegations in the
complaint and construe them in the light most favorable to the plaintiff.
Lerner v. DMB Realty, LLC, 234 Ariz. 397, 401, ¶ 10 (App. 2014). A superior
court’s decision to grant a Motion to Dismiss for Failure to State a Claim
pursuant to Rule 12(b)(6) will be upheld if, “as a matter of law [the plaintiff]
would not be entitled to relief under any interpretation of the facts
susceptible of proof.” Fid. Sec. Life Ins. Co. v. State, Dept. of Ins., 191 Ariz. 222,
224, ¶ 4 (1998).

¶5             Emerson’s opening brief fails to make an argument on appeal
as required by Arizona Rule of Civil Appellate Procedure 13, and instead
sets forth multiple “proof of claim” contentions.2 Because the basis of the
appeal lies in the motion to dismiss, we understand Emerson’s argument to
be the Defendants are not entitled to judicial immunity because he is a
sovereign citizen, and therefore not subject to the jurisdiction of the courts
of the State of Arizona and the Federal Constitution. The existence of
judicial immunity is a question of law that we review de novo. Widoff v.
Wiens, 202 Ariz. 383, 385–86, ¶ 8 (App. 2002). We will only address the issue
of judicial immunity because it is dispositive.

¶6             A judge is absolutely immune from a suit for money damages
and is precluded from civil liability in cases in which the suit is based on
judicial acts taken within the judge's subject matter jurisdiction, even when
the judge is accused of acting maliciously or corruptly. In re Alexander, 232
Ariz. 1, 11, ¶ 41 (2013) (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)). An
act is considered “judicial” if it is an act that is normally performed by a
judge in the judge's adjudicative capacity. Stump v. Sparkman, 435 U.S. 349,
362 (1978).

¶7           Here, Emerson bases his complaint on Defendants’ actions
during criminal proceedings where Emerson was a defendant. Defendants’


2      Rule 13(a) places the burden on the appellant to demonstrate the
existence of an error. An appellant must set forth a statement of the case, a
statement of facts, issues, arguments setting forth the contentions with
record references, and the relief sought.


                                          3
                     EMERSON v. O'CONNOR et al.
                        Decision of the Court

acts of suggesting legal representation to Emerson and discussing plea
offers are judicial acts in the course of an adjudication—a function normally
performed by a judge as required by law. See Ariz. R. Crim. P. 17.2, 17.4(a).

¶8            Emerson also argues that because he is a sovereign citizen, the
Defendants had no jurisdiction over his person and thus were not entitled
to judicial immunity. The cases Emerson relies on do not support his
contentions. See ARCAP 13(a)(7); State v. Nirschel, 155 Ariz. 206, 208 (1987)
(appellant’s contention must be supported by legal authority in the opening
brief).

                               CONCLUSION

¶9            For the foregoing reasons, we affirm the superior court’s
granting of the motion to dismiss.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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