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8/3/2019 WARDEN'S ANSWER TO MOTION TO DISMISS SPECIAL ACTION AGAINST TUCSON CIVILITY ACCORD
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Roy Warden, Publisher1
Common Sense II2
1015 West Prince Road3
#131-1824
Tucson Arizona 857055
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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA10
IN AND FOR THE COUNTY OF PIMA1112
ROY WARDEN,
Petitioner,
v.
MAYOR BOB WALKUP, for the
City of Tucson,
Respondent,
and
THE CITY OF TUCSON,
Real Party at Interest
)))
))))))))))))))))))))
Superior Court No. C20117276
PETITIONERS ANSWER TO
MOTION TO DISMISS
Oral Argument Requested
The Honorable Steven Villarreal
13
COMES NOW THE PETITIONER, Roy Warden, with his Answer14
to Respondents Motion to Dismiss as set forth below:15
ISSUES PRESENTED16
To support his contention that this Court should deny jurisdiction in17
the above captioned Petition, Respondent states the following legal con-18
clusions:19
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1. The Mayor has legal authority to impose orderly conduct rules;12. the Petitioner has an alternative forum to obtain a judicial deter-2
mination of the merits of his claim;3
3.
the Petitioner continues to speak unhindered at the call to the4
audience; and5
4. the Mayor and Council are considering revisions to the orderly con-6duct rules which would render Petitioners request for relief moot.7
LEGAL ARGUMENT8
The Mayors Authority9
On page six of their Motion to Dismiss Respondent cites Caruso v10
Superior Court, 100 Ariz., 167, 170 as set forth below:11
(T)he Arizona Supreme Court clarified that the meaning of12
acting without legal authority means whether the court had the13
power to hear and determine the case, rightly or wrongly. Acts14
in excess of jurisdiction include acts exceeding the power of15
the court as defined by constitution, statute or court rules16
followed under the doctrine of stare decisis.17
18
By citing Caruso, Respondent mistakenly contends the Arizona Con-19
stitution grants the Mayor the same authority to impose rules of public de-20
corum that it grants Arizona courts to hear and determine a case in law.21
Petitioner agrees the Mayor has the authority to impose rules of pro-22
per decorum for public address during Call to the Audience. However; both23
the constitutions of the United States and the State of Arizona, as clearly24
defined in law1, expressly deny the Mayor the authority to abridge public25
speech before the Mayor and Council on the basis of content or viewpoint.26
1 The Tucson City Council is a limited public forum, in which public
commentary and conduct is subject to reasonable time, place and mannerregulation; however, commentary on matters of public concern may not be limitedon the basis of content or viewpoint. Sabelko v City of Phoenix, 846 F.Supp. 822
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To support this principle of decorum, Respondent cites Norse v City1
of Santa Cruz, 629 F.3d, 966, 975 ( 9th
Cir. 2010), which in part, states that2
speech must disrupt, disturb, or otherwise impede the orderly conduct of3
the Council meeting before a public speaker can be removed.4
However; a review of the transcripts and video recordings provided5
by Respondent, shows Respondent altogether misstates Petitioners conduct6
on September 13, 2011 when Petitioner was arrested2
in his speech and for-7
cibly removed from the meeting by armed members of the Tucson Police8
Department.9
On September 13, 2011, irrespective of how Respondent chooses to10
categorize his speech, the transcription reveals Petitioner did not make re-11
petitious and slanderous personal attacks on City Manager Richard12
Miranda. After introductory commentary, Petitioner merely said, Youre13
angry because Ive called Miranda here14
If the orderly conduct of the meeting was, in fact, disturbed on15
September 13, 2011, it was disturbed by Mayor Walkup himself, who16
rudely interrupted Petitioner and, with a nod of his head, signaled armed17
TPD officers to surround Petitioner and forcibly remove him from the18
meeting.19
Petitioner respectfully submits: public officials may not bootstrap20
themselves, create the illusion of disruption, and then use that disruption as21
justification for silencing public commentary.22
Moreover; regarding words such as slanderous and defamatory:23
however much these words may be in common use, in the present context24
(Ariz. 1994), citing Forsyth County v. Nationalist Movement, 112 S.Ct. 2395(1992)2As defined by Merriam-Webster,middle English aresten, from Anglo-French
aresterto stop.
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they are conclusions which must be made in a court of law by finders of1
fact, not mere qualifying adjectives or words of art to be used by members2
of the executive or legislative branches of government who wish to silence3
public criticism of their conduct.4
And finally; the purpose of this Petition is to stop the Mayor from5
acting arbitrarily or capriciouslyor threatening to proceed without or in6
excess of jurisdiction or legal authority, not to determine exactly whathe7
did on September 13, 2011, and why he did it3.8
Petitioners Alternative Legal Forum9
The Rules of Procedure for Special Actions provide: (T)he special10
action shall not be available where there is an equally plain, speedy, and11
adequate remedy by appeal.12
Notwithstanding the fact that the above rule is concerned with13
addressing contended matters originating from court proceedingsand not14
issues created by administrative actions taken by the executive branch of15
local governmentRespondent contends Petitioner has an equally plain,16
speedy and adequate remedy by filing a Title 42 Section 1983 action in17
federal court18
Petitioner submits: The Title 42, Section 1983 action for damages19
Dr. Gilmartin filed against Richard Miranda for First Amendment viola-20
tions languished for eight years before final judgment was entered and21
relief granted.22
Moreover; the extensive pre-trial procedures permitted for any Title23
42 Section 1983 actioneven an action for declaratory relief alonewould24
deny Petitioner a speedy and adequate remedy in law.25
3Plaintiff will seek fact finding of this nature, and remedy for damages, in a
federal venue.
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Respondent respectfully submits: special action affords him the only1
reasonable remedy he has for speedy judicial resolution.2
Petitioner Continues to Address Council3
Respondent asserts: since Petitioner has continued to address the4
Mayor and Council, the threat the Mayor issued on September 20, 2011 to5
further enforce the rules does not chill public debate.6
Petitioner now affirms: he is chilled in his spirit and frightened each7
time he addresses the Mayor and Council; chilled and frightened but not8
sufficiently to deter him from the exercise of his constitutionally protected9
right to address local officials on matters of public concern.10
Proposed Revisions to Rules11
On the basis of page four of the extensive proposed revisions to the12
rule now under review4, Respondent (apparently) concedes the present rule13
is constitutionally infirm. See Petitioners Exhibit A. (Please note: the14
exhibits that Petitioner received in Respondents Motion to Dismiss were15
duplicated and disorganized to the extent that Petitioner was not able to16
determine which documents were part of which exhibit.)17
Respondent claims the Mayor and Councils mere consideration of18
rule5
changes renders this issue moot. Plaintiff respectfully submits: their19
consideration of rule changes is inspired by embarrassment and the pen-20
dency of this action, not by any consideration of protecting the publics21
First Amendment rights.22
Furthermore; Respondents proposed rule changes will further limit23
public participation in Call to the Audience for the following two reasons:24
4Respondents have deleted significant portions of the present rule, including the
prohibition of making personal, impertinent, or slanderous remarks, etc.5The rule in question has remained intact, in place, and unchallenged since 1982.
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1. Call to the Audience is removed from the beginning and placed at1the end of the Mayor and Council meeting, an indeterminate time2
when the public is weary and less likely to attend.3
2. The proposed rule still grants the Mayor the authority to arrest and4remove any public speaker who utters words the Mayor considers to5
be defamatory, or threatening,6 thus giving the Mayor, as he has6
already so determined, the authority to stop any criticism of local7
officials.8
CONCLUSION9
In a larger context, Petitioner respectfully submits: the U.S. Supreme10
Court set forth the doctrine of judicial review in Marbury v Madison in11
1803. Since then, members of the legislative and executive branches of12
government have continued to chaff at the very idea they may not write13
their own rules and then, arbitrarily and capriciously, decide how to impose14
them.15
In the Bill of Rights, the Founding Fathers, forever mindful of the16
tyranny of popular government7, set forth as inviolate the rights of We the17
People to address our public officials on matters of public concern8, and18
6Regarding threatening commentary: Councilpersons Romero, Kozachic and
Uhlich found Petitioners comments to be threatening when he merely repeatedfacts found by the Gilmartin jury in 2006 against Tucson City Manager Richard
Miranda. Please review the transcripts provided by Respondent and see attached
Exhibit B.7
In The Patriot Mel Gibson asked: Why should I substitute the tyranny of oneman three thousand miles away for the tyranny of three thousand of my neighborsone mile away?8Next year the U.S. Supreme court will revisit the issue of First Amendment
Retaliation and the publics right to confront and address public officials. Reichle
v. Howards (11-262)
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gave us courts to protect these liberties. This Petition merely continues an1
argument already several centuries old.2
Petitioner intends to research, brief and submit a supplemental brief3
regarding constitutional law and the precise wording of the present rule4
now under review.5
PRAYER6
Petitioner respectfully requests this Court to DENY Respondents7
Motion to Dismiss, and to GRANT Petitioner an additional and reasonable8
amount of time to write a supplemental brief regarding the constitutionality9
of the words used in the rule now under review; words which, on the basis10
of their omission from the proposed new rule, Petitioner submits and Re-11
spondent seems to concede, are constitutionally infirm.12
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RESPECTFULLY SUBMITTED this 19th
day of December 2011.14
15
BY16
____________________17
Roy Warden, Petitioner18
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State of Arizona21
County of _____________22
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On this ____day of ____________________, 2011, before me the24
undersigned Notary Public, personally appeared Roy Warden, known to me25
to be the individual who executed the foregoing instrument and26
acknowledged the same to be his free act and deed.27
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My Commission Expires:_______________ ___________________29
Notary30
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EXHIBIT A5
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