                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


             ANTHONY-ERIC EMERSON, Plaintiff/Appellant,

                                        v.

 JEANETTE GARCIA and KAREN L. O'CONNOR, Defendants/Appellees.

                             No. 1 CA-CV 14-0854
                              FILED 10-6-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2014-006807
              The Honorable Robert H. Oberbillig, Judge

                                  AFFIRMED


                                   COUNSEL

Anthony-Eric Emerson, Tucson
Plaintiff/Appellant

O’Connor & Campbell, P.C., Phoenix
By Lisa M. Hemann
Counsel for Defendants/Appellees
                        EMERSON v. GARCIA, et al.
                          Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Donn Kessler delivered the decision of the Court, in which
Judge Andrew W. Gould and Judge Patricia K. Norris joined.


K E S S L E R, Judge:

¶1             Appellant, Anthony-Eric Emerson (“Emerson”) appeals the
trial court’s order dismissing his complaint against Judge Jeannette Garcia
(“Garcia”) and Judge Karen L. O’Connor (“O’Connor”) of the Maricopa
County Superior Court (collectively, the “Defendants”) for failure to state a
claim upon which relief can be granted. For the following reasons, we
affirm the trial court’s ruling.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Emerson is incarcerated at the Arizona Department of
Corrections. Judges Garcia and O’Connor had presided over prior criminal
proceedings in which Emerson was convicted of a number of felony
offenses.1 In his complaint against the Defendants, Emerson alleged that
during two separate sentencing hearings on April 17, 2013, and March 28,
2014, Garcia and O’Connor, respectively, ordered deputy sheriffs to take
his fingerprints “by any means necessary.” Emerson argues that the
Defendants thereby authorized the subsequent use of excessive force by
deputy sheriffs to obtain his fingerprints, allegedly resulting in physical
injuries and mental anguish for which Emerson seeks compensatory
damages.

¶3           Defendants moved to dismiss Emerson’s complaint pursuant
to Arizona Rule of Civil Procedure (“Ariz. R. Civ. P.”) 12(b)(6) for failure to
state a claim, invoking two separate grounds for dismissal. First,


1 Emerson also named several John Does and other persons in the
complaint. Since the other parties were not served or were named as John
Does, we have jurisdiction despite the lack of any language certifying the
appeal pursuant to Ariz. R. Civ. P. 54(b). McHazlett v. Otis Eng’g Corp., 133
Ariz. 530, 532 (1982) (holding that naming John Does and failure to serve
remaining named defendants does not require Rule 54(b) certification for
judgment to be appealable).



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                        EMERSON v. GARCIA, et al.
                          Decision of the Court

Defendants argued that absolute judicial immunity precluded liability for
the allegations set forth in Emerson’s complaint. Second, Defendants
argued that Emerson failed to file timely notices of claim in accordance with
Arizona Revised Statutes (“A.R.S.”) § 12-821.01.2 Emerson opposed the
motion to dismiss, arguing that judicial immunity was inapplicable because
his claims were not based on actions taken by the Defendants in their
judicial capacity; rather, Defendants’ orders for Emerson’s fingerprints to
be taken constituted non-judicial acts. Moreover, Emerson alleged that his
notices of claim were timely filed and attached to his response two notices
of claim to the Maricopa County Board of Supervisors. The court granted
Defendants’ motion to dismiss on both the judicial immunity and the notice
of claim arguments, certifying the judgment under Ariz. R. Civ. P. 54(c).
Emerson timely appealed and we have jurisdiction pursuant to A.R.S. § 12-
2101(A)(1)(West 2015).

                 ISSUES AND STANDARD OF REVIEW

¶4             While Emerson’s opening brief is not a model of clarity, we
understand him to be arguing that the trial court erred in granting the
Defendants’ motion to dismiss because: (1) the trial court was biased and
failed to consider his pleadings and evidence in ruling on the motion to
dismiss, including evidence showing that the Defendants’ treatment of him
was “of such a shocking nature that no reasonable man could have believed
that it was constitutional”; (2) the Defendants fraudulently misrepresented
facts which would have entitled Emerson to a default judgment; and (3)
Defendants were not entitled to judicial immunity because their acts were
of non-judicial character, constituted “clearly unconstitutional conduct,”
and because Emerson is a sovereign citizen not subject to the jurisdiction of
the courts of the State of Arizona.

¶5              On review of a trial court's decision granting a motion to
dismiss for failure to state a claim, we assume the truth of all adequately
pled material factual 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) (internal citations omitted). Dismissal 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 Dep't of Ins., 191 Ariz. 222, 224, ¶ 4 (1998).




2We cite the current version of the applicable statute unless revisions
material to this decision have occurred since the events in question.


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                        EMERSON v. GARCIA, et al.
                          Decision of the Court

¶6             We review orders dismissing a complaint pursuant to Ariz. R.
Civ. P. 12(b) de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶ 7 (2012).
The existence of judicial immunity is a question of law which we review de
novo. Widoff v. Wiens, 202 Ariz. 383, 385-86, ¶ 8 (App. 2002).

                                DISCUSSION

¶7             We address only the issue of absolute judicial immunity
because it is dispositive of Emerson’s claims. Emerson argues that the
Defendants are not protected by judicial immunity because (1) they were
not acting in their judicial capacity when ordering Emerson’s fingerprints
to be taken; instead, such orders constituted non-judicial acts; (2) the giving
of such orders rose to the level of “clearly unconstitutional conduct”; and
(3) the courts lacked jurisdiction over him as a sovereign citizen.

¶8             Generally, a judge is absolutely immune from a suit for
money damages. See, e.g., Stump v. Sparkman, 435 U.S. 349 (1978); Pierson v.
Ray, 386 U.S. 547 (1967). Specifically, the doctrine of absolute judicial
immunity precludes civil liability in cases where judges are sued based on
judicial acts taken within their subject matter jurisdiction, even when the
judge is accused of acting maliciously or corruptly. In re Alexander, 232 Ariz.
1, 11, ¶ 41 (2013) (citing Pierson, 386 U.S. at 554). The public policy reasons
for judicial immunity have been discussed in Pierson, 386 U.S. at 554, Bradley
v. Fisher, 80 U.S. 335, 347-354 (1871), and Grimm v. Arizona Board of Pardons
and Paroles, 115 Ariz. 260, 264-65 (1977). The primary reason for absolute
judicial immunity from civil actions is “not . . . the protection or benefit of
a malicious or corrupt judge, but . . . the benefit of the public, whose interest
it is that the judges should be at liberty to exercise their functions with
independence and without fear of consequences.” Pierson, 386 U.S. at 554
(citations and internal quotation marks omitted).

¶9             A judge loses absolute immunity only in two situations. First,
a judge is not immune from liability for non-judicial actions. Mireles v. Waco,
502 U.S. 9, 11–12 (1991). An act by a judge is “judicial” if the nature of the
act constitutes a function normally performed by the judge in his or her
adjudicative capacity. Stump, 435 U.S. at 362. Cf. Forrester v. White, 484 U.S.
219, 227-229 (1988) (holding that a decision by a state court judge to demote
the plaintiff-appellant was an administrative act, and, therefore, judicial
immunity did not apply); Ex parte Virginia, 100 U.S. 339, 348 (1880) (finding
that jury selection is of administrative rather than judicial nature because
“the duty of selecting jurors might as well have been committed to a private
person as to one holding the office of a judge.”). Second, a judge is not
immune for actions, though judicial in nature, taken in clear absence of all


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                        EMERSON v. GARCIA, et al.
                          Decision of the Court

jurisdiction. Stump, 435 U.S. at 356-57. The scope of the judge's jurisdiction
is construed broadly when the immunity of the judge is at issue. Id. at 356.
For example, in Mireles, the Supreme Court held that a state court judge was
immune from suit for allegedly ordering police officers to bring plaintiff
before the judge by employing excessive force. Mireles, 502 U.S. at 10, 12. In
so holding, the Court emphasized that a judge's order to court officers to
bring a person who is in the courthouse before him is a function normally
performed by a judge. Id. at 12. Moreover, the Court explained that “[i]f
judicial immunity means anything, it means that a judge will not be
deprived of immunity because the action he took was in error . . . or was in
excess of his authority.” Id. at 12-13 (quoting Stump, 435 U.S. at 356-57)
(internal quotation marks omitted).

¶10           Here, the basis of the complaint is that Judge Garcia and
Judge O’Connor ordered Emerson’s fingerprints to be taken during
sentencing hearings in their respective courtrooms, following Emerson’s
felony convictions. The act of ordering a defendant, who has been found
guilty of a felony, to affix his fingerprints in connection with the
pronouncement of the sentence is a function normally performed by a
judge, and required by law. See Ariz. R. Crim. P. 26.10(b)(5) (providing that
upon sentencing, the court “shall . . . permanently affix the defendant’s
right index fingerprint to the sentencing document or order.”).
Accordingly, both orders in question were judicial acts taken in the judges’
official capacity. The fact that the orders were carried out with the
assistance of deputy sheriffs does not transform them from judicial to
executive, administrative or any other “non-judicial” character. See Mireles,
502 U.S. at 13. Consequently, Judge Garcia and Judge O’Connor are
absolutely immune from liability in this case.

¶11           Emerson’s argument that Defendants’ orders or conduct
during the hearings were “clearly unconstitutional” and of so “shocking
nature that no reasonable man could have believed that they were
constitutional” so as to warrant liability despite having acted in judicial
capacity, does not fall within the two exceptions for judicial immunity.
Moreover, Emerson did not raise this argument before the superior court.
Therefore, we do not need to consider it. See Quila v. Schafer’s Estate, 7 Ariz.
App. 301, 302 (1968).

¶12           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. However, Emerson fails to cite legal authority
supporting his proposition that he is not subject to the jurisdiction of the
courts of the State of Arizona. The case law relied upon by Emerson does


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                       EMERSON v. GARCIA, et al.
                         Decision of the Court

not support his contentions. See Ariz. R. Civ. App. P. 13(a)(7). Accordingly,
this argument has been waived and we will not address it. See State v.
Nirschel, 155 Ariz. 206, 208 (1987) (emphasizing that each contention by the
appellant must be supported by legal authority in the opening brief). See
also Cullum v. Cullum, 215 Ariz. 352, 355 n.5 (App. 2007) (noting that
appellate courts “will not consider arguments posited without authority.”).

                              CONCLUSION

¶13           Even assuming the truth of all well-pled material allegations
in Emerson’s complaint, and affording Emerson the benefit of all inferences
which the complaint can reasonably support, he is not entitled to relief
under any stated facts susceptible of proof. For the foregoing reasons, we
affirm the superior court’s dismissal of Emerson’s complaint.3




                                :ama




3 While this appeal was pending, Emerson filed two motions for summary
judgment in this Court, both of which we denied. Emerson then filed a
Motion for Reconsideration/Request for Signed Order with Explanation
and a Motion for Clarification with Points and Authorities. We deny those
motions.


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