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Sever and Stay Eleventh Circuit

Sever and Stay Eleventh Circuit

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Published by Sheriff_Joe_Arpaio
Rev 4 very close to final....
Rev 4 very close to final....

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Categories:Types, Business/Law
Published by: Sheriff_Joe_Arpaio on Oct 05, 2013
Copyright:Attribution Non-commercial

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03/27/2014

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1In The
United States Court of Appeals for the Eleventh Circuit
S
COTT
H
UMINSKI
, P
LAINTIFF
-
 
A
PPELLANT
,v. Docket No.S
TATE OF
V
ERMONT
,
 
E
T
A
L
,
 
D
EFENDANTS
 – 
 
A
PPELLEES
.
MOTION TO SEVER AND STAY ISSUE:FACIAL ATTACK UPON THE ARIZONA HARASSMENT STATUTE (AZRev. Stat. § 13-2921) TO ALLOW THE U.S. 9
TH
CIRCUIT COURT OFAPPEALS TO EXERCISE EN BANC JURISDICTION,alternatively,MOTION TO STAY THIS APPEAL PENDING COMPLETION OFPROCEEDINGS IN THE U.S. NINTH CIRCUIT
 NOW COMES, Scott Huminski ("Huminski"), and moves to sever the issue of facial andas-applied vagueness and overbreadth of the Arizona Harassment statute, AZ Rev. Stat. § 13-2921, because the issue is being considered
en banc
by the United States Ninth Circuit Court of Appeals in Huminski v. City of Surprise [Arizona], et al., 12-16395. Motion For Rehearing EnBanc was filed in the Ninth Circuit on August 23, 2013 and the motion is contained in the recordon appeal in this matter.An identical facial/as-applied attack upon the Connecticut Harassment statute, C.G.S. §53a-183, is properly before this Court. This appeal should advance with regard to the facial andas-applied challenge to the Connecticut harassment statute and other issues in this appeal.In the alternative, this Court should stay this case entirely pending completion of  proceedings in the U.S. Ninth Circuit to allow this Court to consider vagueness and overbreadthissues concerning the criminal harassment statutes of Connecticut and Arizona concurrently if the Arizona law is not addressed by the
en banc
Ninth Circuit. The Court may also wish to adopta disposition concerning the Arizona statute and apply it to Connecticut if the Ninth Circuitopines
en banc
to promote consistency between the 9
th
and 11
th
federal circuits. The two State
 
2statutes have quite similar problems with overbreadth and vagueness. The consideration of afacial or as-applied challenge to the constitutionality of the statutes is more efficientlyaccomplished concurrently to advance judicial economy, the interests of justice and to avoid piecemeal appeals/litigation. Dual jurisdiction and dual consideration of these issues may promote inconsistency in the federal circuits. As Arizona is within the territory of the U.S. NinthCircuit, it is logical for that Circuit to handle an issue with a State statute located within its jurisdictional boundaries.FACTUAL BACKGROUND FACIAL ATTACK UPON AZ Rev. Stat. § 13-2921 and C.G.S. §53a-183
 AZ Rev. Stat. § 13-2921 states as follows,
 ARS 13-2921. Harassment; classification; definition A. A person commits harassment if, with intent to harass or with knowledge that the personis harassing another person, the person:1. Anonymously or otherwise contacts, communicates or causes a communication withanother person by verbal, electronic, mechanical, telegraphic, telephonic or written meansin a manner that harasses.2. Continues to follow another person in or about a public place for no legitimate purposeafter being asked to desist.3. Repeatedly commits an act or acts that harass another person.4. Surveils or causes another person to surveil a person for no legitimate purpose.5. On more than one occasion makes a false report to a law enforcement, credit or social service agency.6. Interferes with the delivery of any public or regulated utility to a person.B. A person commits harassment against a public officer or employee if the person, withintent to harass, files a nonconsensual lien against any public officer or employee that isnot accompanied by an order or a judgment from a court of competent jurisdictionauthorizing the filing of the lien or is not issued by a governmental entity or political subdivision or agency pursuant to its statutory authority, a validly licensed utility or water delivery company, a mechanics' lien claimant or an entity created under covenants,conditions, restrictions or declarations affecting real property.C. Harassment under subsection A is a class 1 misdemeanor. Harassment under subsection B is a class 5 felony.D. This section does not apply to an otherwise lawful demonstration, assembly or  picketing.E. For the purposes of this section, "harassment" means conduct that is directed at aspecific person and that would cause a reasonable person to be seriously alarmed,annoyed or harassed and the conduct in fact seriously alarms, annoys or harasses the person.
The Connecticut harassment statute states as follows:
Connecticut General Statutes 53a-183 - Harassment in the second degree: ClassC misdemeanor 
 
3
(a) A person is guilty of harassment in the second degree when: (1) By telephone,he addresses another in or uses indecent or obscene language; or (2) with intent toharass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through connection with a telephonenetwork, by computer network, as defined in section 53a-250, or by any other form of written communication, in a manner likely to cause annoyance or alarm; or (3) with intent toharass, annoy or alarm another person, he makes a telephone call, whether or not aconversation ensues, in a manner likely to cause annoyance or alarm.(b) For the purposes of this section, such offense may be deemed to have beencommitted either at the place where the communication originated or at the place where it was received.(c) The court may order any person convicted under this section to be examined by one or more psychiatrists.(d) Harassment in the second degree is a class C misdemeanor.
Unlike the harassment or similar stalking statutes of thirty other States, the District of Columbia and Guam, Arizona and Connecticut have chosen to not include an exception for constitutionally protected conduct in their statutes. The plain language of these statutes is wildlyoverbroad and vague. Arizona drafted its statute with an exception for 
lawful demonstration,assembly or picketing 
, but, chose to make the
 per se
harassment inherent in civil litigation a crime.Both statutes criminalize a host of other constitutionally protected conduct such as blogging, journalism and the like on the internet and elsewhere.Surprise, Arizona police officer, Hector Heredia, issued a written email threat againstHuminski under the color of AZ Rev. Stat. § 13-2921 stating as follows:
This is Officer H. Heredia #2019 from the Surprise Police Department. I would like to inform you that Mr. Michael [sic] Nelson filed a
harassment 
 complaint with this department today. Mr. Huminski I would like to set upan interview with you reference this
harassment 
allegation. My scheduled work days are Wednesday through Saturday 6:00 A.M. to 4:00 P.M. Pleasedo not have any type of contact with either Michael [sic] Nelson or  Anthony Tsontakislaw until I speak with you and hear your side. You cancall me at 623-222-4262 to set up an interview or leave a message whenyou will be able to come during the mentioned work days and hours.Thank-you. (emphasis added)
This quote was issued the day prior to a civil hearing in an Arizona court Huminski v. Nelson.Anthony Tsontakislaw[sic] was the attorney for defendant Mr. Nelson. The intent to obstruct
civil litigation couldn’t be more clear.
 Surprise, Arizona police officer, Hector Heredia, stated the following in police tapedtelephone conversations with Huminski (emphasis added),

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