WARDEN'S ANSWER TO MOTION TO DISMISS SPECIAL ACTION AGAINST TUCSON CIVILITY ACCORD

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

[email protected]

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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

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Superior Court No. C20117276

PETITIONERS ANSWER TO

MOTION TO DISMISS

Oral Argument Requested

The Honorable Steven Villarreal

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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

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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

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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

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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 B3

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Documents

WARDEN'S ANSWER TO MOTION TO DISMISS SPECIAL ACTION AGAINST TUCSON CIVILITY ACCORD