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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO

ROY WARDEN, ) ) Petitioner, In ) Forma Pauperis ) ) Vs ) ) HON. THOMAS BERNING & ) MICHAEL LEX, Judges of the ) Tucson City Court ) ) Respondents, ) and ) ) STATE OF ARIZONA, ) ) Real Party in ) Interest. ) ) Court of Appeals Case # 2CA-SA 20130091 Pima County Superior Court Case # CR 20130747-001 Tucson City Court Case # CR 9006068 OPENING BRIEF Oral Argument Requested

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PETITION FOR SPECIAL ACTION

Roy Warden 3700 South Calle Polar Tucson Arizona 85730 roywarden@hotmail.com (520) 551-3496

TABLE OF CONTENTS
Table of Citations Jurisdictional Statement Issues Presented Procedural History Statement of Facts Sub Heading A: Argument Sub Heading B: Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257 (1966) Tucson Judges Issue Unconstitutional Orders of Prior Restraint 3 4-7 7 7-11 11-23 12-23 23-41 26-29

Sub Heading C:

State v Chavez, 123 Ariz. 538 (1979) New York Times v United States, 91 S.Ct. 2140 (1971) Matter of Providence Journal Company, 820 F.2d 1342.

29-33

Sub Heading D:

33-34

Sub Heading E: Summary Conclusion Prayer Court Order Under Review Certificate of Compliance Certificate of Service

34-41 42 42-46 47-48

49 50 51

TABLE OF CITATIONS
CASES
1 2 3 4 5 6 7

PAGES 47 33 5, 6, 23 6, 23 4, 7, 10, 17, 23, 24, 25 25 13 34-40, 46 29, 32, 33, 34 4, 7, 11, 26-29, 32, 35, 36, 40, 41, 46, 47 4, 7, 11, 20, 26, 29-33, 36-38, 4041, 43, 46 14 14 20, 30-32, 36, 3846

Citizen Publishing Co. v Miller, 210 Ariz. 513, 516 Cooper v Rockford Newspapers, Inc., 50 Ill. Ap3d 250 Dombey v Phoenix Newspapers, Inc.,150 Ariz. 476, 482 (1986) Dream Palace v County of Maricopa, 384 F.3d 990 (9th Cir. 2004) Fraguso v. Fell, 210 Ariz. 427 (App.) Gusick v Boies, 52 Ariz 309 (1951) LaFaro v. Cahill, 203 Ariz. 483 (App) Matter of Providence Journal Company, 820 F.2d 1342. New York Times v United States, 91 S.Ct. 2140 (1971) Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257 (1966)

8 9

10

State v Chavez, 123 Ariz. 538 (1979)

11 13 14

State v Moore, 48 Ariz. 16 State v Whitney, 108 Ariz. 277 Walker v City of Birmingham, 388 U.S. 307

STATUTES: A.R.S. 13-3967(D) A.R.S. 13-2810 A.R.S. 13-4033 4, 10, 17-18, 2325, 41, 43-44 8, 10, 23, 42, 48 14

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I.

JURISDICTIONAL STATEMENT

1. The foundational issue of this case, in which Respondent Tucson City Court Judge Michael Lex issued a non-appealable1 conditions of release order2 which exceeded the express limitations on his authority set forth by A.R.S. 13-3967(D)3 and Division II of the Arizona Court of Appeals in Fraguso v. Fell, 210 Ariz. 427 (App.), to arbitrarily and capriciously deny a controversial public speaker the free exercise of pure political speech4 rights secured by the First

In Arizona, unlike court imposed injunctions, conditions of release orders are not final orders of the court subject to appeal. See paragraph 25. Exhibit 1. Exhibit 2.

2 3 4

Regarding the First Amendment; Arizona law makes a clear distinction between First Amendment conduct or related activity (marching, picketing, etc.), for which the collateral bar rule does apply and the exercise of First Amendment pure political speech rights (speaking, writing, publication, etc.), for which the collateral bar rule does not apply. Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257 (1966) and State v Chavez, 123 Ariz. 538 (1979).

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Amendments of both the Constitution of the United States and the State of Arizona, presents a constitutional issue of great public significance and statewide importance. 2. The facts which give rise to the pure issues of law Petitioner now presents are not in dispute. They concern the exercise of core expressive freedoms and, by order of the Tucson City Court which prohibited Petitioner from go(ing) within 1,000 feet of 33 N Stone, a denial of fundamental rights guaranteed by both the constitutions of Arizona and the United States of America. 3. In 1986 the Arizona Supreme Court stated: (W)e have substantial doubt whether the Constitution would permit us to avoid consideration of first amendment issues even if we were so disposed. The United States Supreme Court has consistently held that appellate courts must engage in independent review of constitutional facts in order to safeguard first amendment protections. Dombey v Phoenix Newspapers, Inc.,150 Ariz. 476, 482 (1986).

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4. Regarding Arizona Courts general discretion to deny jurisdiction in Special Actions, the Ninth Circuit Court of Appeal stated: Were this discretion unbounded, the special action would, or course, provide no guarantee of judicial review on the merits. If, on the other hand, the judges discretion does not include the ability to dismiss a petition where it is the only route by which the petitioner can bring a constitutional challenge, then the mere use of the term discretion will not prevent the review from being constitutionally sufficient. Dream Palace v County of Maricopa, 384 F.3d 990, 1006 (9th Cir. 2004). 5. Furthermore; in Dream Palace the Court cited U.S. Supreme Court Justice Holmes: (I)t is plain that a State cannot escape its constitutional obligations by the simple device of denying jurisdiction in such cases to Courts otherwise competent. Dream Palace at 1006. 6. Petitioner, whose appellate rights ended in Pima County Superior Court as per A.R.S. 22-375, respectfully requests this Court to remember the promise the Arizona Supreme Court made to the people in Dombey to safeguard first amendment protections, to

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grant jurisdiction, to review the facts and to issue a decision based on existing Arizona case law. II. ISSUES PRESENTED: 1st. Was Respondent Judge Lexs Non Appealable Condition of Release Order Dated February 20, 2008 Lawful or Was it Arbitrary, Capricious or an Abuse of Discretion as per A.R.S. 13-3967 (D) and Fraguso v. Fell, 210 Ariz. 427 (App.)? 2nd. Was Respondent Judge Bernings Finding of Guilt in State v Warden Arbitrary, Capricious or an Abuse of Discretion, and a Violation of Arizona Law Set Forth by the Arizona Supreme Court in Phoenix Newspapers5 and Division I of the Arizona Appellate Court in State v Chavez6, Finding that Pure Political Speech Is Not Subject to the Collateral Bar Rule? III. PROCEEDURAL HISTORY 7. On January 14, 2009 Petitioner, while preparing to exercise his First Amendment right to speak at the Tucson Weekly Public Forum on matters of public concern, was arrested in Library Square, near the

Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257 (1966).

5 6

State v Chavez, 123 Ariz. 538 (1979).

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corner of Pennington and Stone, Tucson Arizona, and charged with violation of A.R.S. 13-2810, i.e. Interference With a Judicial Proceeding, for violating a conditions of release order (hereinafter referred to as the order) from a previous case, arising out of an incident which occurred during the Tucson Weekly Public Forum on February 20, 2008. 8. Subsequently; the trial court spent a lengthy period of time securing counsel for Petitioner, who is indigent. 9. On August 12, 2010 Petitioners then court appointed attorney, Kimberly Hunley, filed a Motion to Dismiss, setting forth substantial constitutional arguments and a series of facts and exhibits, including an exhibit demonstrating the entrance to the Tucson Municipal Court lay well inside the 1,000 foot limitation proscribed by the order. 10. On August 25, 2010 Petitioner filed an Affidavit in Support of Ms. Hunleys motion, stating:

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In Tucson Arizona, Library Square7 is the most strategic location for me to address political issues regarding Open Border Policy, providing not only a public forum by which local officials can hear my political commentary regarding their malfeasance, but a contact opportunity for other officials to take down my email address and contact me with specific information regarding their opposition to Open Border Policy. The Affidavit of Roy Warden in Support of Motion to Dismiss #CR 9006068 1:28-2:4. 11. Subsequently; Ms. Hunley moved to Cochise County, the Court spent significant time securing Petitioner other counsel, and Respondent Judge Berning denied Petitioners Motion to Dismiss. 12. On August 29, 2011 Petitioners last appointed attorney, Eric Manch, filed a Petition for Special Action to Pima County Superior Court setting forth substantial constitutional arguments, and a series of facts and exhibits, and, on October 20, 2011 Mr. Manch filed a reply to States response.

In Tucson Arizona Library Square is located at the corner of Pennington and Stone.
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13. Significantly; Mr. Manchs Petition failed to state that the order exceeded the express limitations on judicial authority set forth by A.R.S. 13-3967(D)8 and Division II of the Arizona Court of Appeals in Fraguso v. Fell, 210 Ariz. 427 (App.). 14. On November 28, 2011 Pima County Superior Court Judge, the Honorable Judge Teresa Godoy, denied

jurisdiction on the basis Petitioner had (limited) rights of appeal subsequent to conviction. 15. Subsequently; Mr. Manch declined to represent Petitioner at trial. 16. On October 29, 2012, subsequent to a bench trial in Tucson Municipal Court, the Honorable Thomas Berning9 found Petitioner guilty of violation of A.R.S. 132810 and fined him $285.00. (Exhibit 4.) 17. On January 11, 2013 Petitioner filed an Appeal in Pima County Superior Court, setting forth substantial Exhibit 2.

Just prior to sentencing Respondent Judge Berning opined the contested order was perhaps overbroad.

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constitutional arguments on why his conviction should be reversed. 18. On May 21, 2013 Pima County Superior Court Judge Javier Chon-Lopez denied Petitioners Appeal, primarily on the basis that the collateral bar rule was the law in Arizona, altogether ignoring the exception to the collateral bar rule for pure political speech set forth by the Arizona Supreme Court in Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257 (1966) and by the Arizona Appellate Court, Division I in

State v Chavez, 123 Ariz. 538 (1979), thus inspiring this Petition for Special Action. IV. STATEMENT OF FACTS 19. Petitioner is an unpaid political activist working on behalf of the people of Pima County, the publisher of Common Sense II, CSII Press, Arizona Common Sense and the Director of the Tucson Weekly Public Forum. 20. Petitioner has spent the last 7 years investigating allegations of malfeasance within the legal and

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political institutions of Pima County, including the malfeasance of Tucson City Officials who have used their public offices (1) to aid and abet, entice and invite, and otherwise encourage the unlawful entry of impoverished Mexican citizens to supply local contractors with low cost labor, (2) to advance the policy of the Mexican Government to exclude their poor so they may come to America to earn and send home remittances, and (3) to expose the current activities of elected Tucson City Officials who now employ City Administrators on the basis of cronyism and not on the basis of their fitness to hold public office. A. Tucson City Court Judges Issue Unconstitutional Orders of Prior Restraint in Violation of Law. 21. From 2006 to 2008 a series of Tucson City Court Judges, including respondents, issued a series of unconstitutional prior restraint orders, in violation of

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specific case law,10

proscribing the exercise of Peti-

tioners pure political speech rights. 22. On or about December 22, 2006 Pima County Legal Defender Isabel Garcia had served upon Petitioner an Injunction against Harassment, issued by Tucson Municipal Court Judge Bowman, which, amongst other things, enjoined Petitioner from coming within 1,000 ft. of 32 North Stone, Tucson Arizona.11 23. Regarding the well documented history of Petitioners political protests and the state issuing unconsti-

tutional conditions of release orders: On April 23, 2007 Tucson Municipal Court Judge Riojas, in CR 6041685, issued a conditions of release order enjoining Peti-

10

The cases are discussed at length in sections B-E below.

Judge Bowmans Order violated Arizona law as expressly stated in LaFaro v. Cahill, 203 Ariz. 483 (App.) Statute authorizing injunction against harassment cannot be used to restrict protected political speech. LaFaro at 487. Moreover; Statute authorizing injunction against harassment will be construed to exclude pure political speech from definition of harassment. LaFaro at 488.
11

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tioner from coming within 500 feet of any demonstration. (Exhibit 5.) 24. On May 03, 2007 Petitioner filed a Notice of Appeal challenging the conditions of release in CR 6041685. 25. On May 08, 2007 the City of Tucson filed a Motion to Strike, citing State v Whitney, 108 Ariz. 277; State v Moore, 48 Ariz. 16, 18; and A.R.S. 13-4033, on the basis that in Arizona (o)rders setting conditions of release are not final orders and are not appealable. 26. On May 09, 2007 the Tucson City Court granted the states Motion to Strike, thus suspending the Tucson Weekly Public Forum and Petitioners right to exercise his pure political speech rights until the conclusion of the then pending case. 27. On January 28, 2008 Petitioner sent the second of two press releases to the Tucson City Council, selected Tucson City employees including members of the Tucson Police Department (TPD), City Court Judges, prosecutors and public defenders, the ACLU, members

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of the media, etc.

announcing his intention to re-

convene the Tucson Weekly Public Forum on February 04, 2008, at its traditional location in Library Square near the corner of Pennington and Stone within earshot of some 3,000 Tucson City and Pima County Officials, and burn a Mexican flag in protest of Tucson City Open Border Policy and the policies of the Mexican Government. 28. On February 04, 2008, immediately subsequent to his rally, TPD Officers arrested Petitioner12 and charged him with violation of TCC 21-3 (7) which prohibits igniting or attempting to ignite a fire a fire in a public place. 29. The conditions of release order specifically enjoined Petitioner from returning to Library Square and the surrounding sidewalks.

12

CR-8013622.

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30. Subsequently; Petitioner moved the Tucson Weekly Public Forum location across the street to 33 North Stone, in front of the Bank of America Building. 31. On February 16, 2008, subsequent to an incident occurring at the Tucson Weekly Public Forum several days before, Petitioner had served upon Pro Raza Open Border Activist Alan Ward an Injunction Against Harassment, which enjoined Ward from having any contact with Petitioner. 32. Nevertheless; on February 20, 2008, in spite of Petitioners pleas for assistance to TPD Officers who were in attendance, TPD Officers permitted Left Wing Activist Ward13 to assault Petitioner while Petitioner addressed the public at the Tucson Weekly Public Forum, requiring Petitioner to take minor actions in self defense.

13

On March 03, 2008 Alan Ward was convicted in HR8009274 for violation of A.R.S. 13-2810.

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33. Subsequently; TPD Officers arrested Petitioner14 for an alleged assault and booked him into the Pima County Jail. 34. That night Petitioner was arraigned in the Pima County Jail by video before Respondent Tucson Municipal Court Judge Lex, who issued the conditions of release order under review here. (Exhibit 1.) 35. Significantly; the order enjoined Petitioner from go(ing) within 1,000 feet of 33 N Stone, an area restriction not provided for in law, which clearly exceeded the express limitations placed on judicial authority by A.R.S. 13-3967(D). (Exhibit 2) and Fraguso v. Fell, 210 Ariz. 427 (App.). 36. [N.B: In their 2013 Reply to Petitioners Appeal to Superior Court, the State argued: A.R.S. 13-3967(D) pro-

14

CR-8017674.

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vides for travel restrictions15, and by extension area restrictions.] 37. The order, which clearly exceeded the permitted restrictions expressly set forth in A.R.S. 13-3967 (D), proscribed Petitioner from (1) exercising his pure political speech rights within 1,000 feet of the corner of Pennington and Stone; (2) attending hearings or using the law library at the Pima County Superior Court, (3) accessing data at the Pima County Recorders Office Petitioner required for his employment, (4) using the Pima County Library, (5) meeting with an attorney with offices at 100 North Stone Petitioner had retained for a family member, (6) attending meetings of the Pima County Board of Supervisors, and (7) entering the Tucson Municipal Court to attend his own hearings.

The purpose of restricting travel is to insure attendance at trial.

15

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38. Subsequently; even though Petitioner did not engage in public speech within the 1,000 ft. limitation, he was still required to ignore the order to attend his own hearings in Tucson Municipal Court, or face arrest for failure to appear. 39. Subsequently, Petitioner began ignoring the order to attend meetings of the Pima County Board of Supervisors, Pima County Court hearings, etc.,. 40. Every time petitioner violated the order he found the opportunity to inform a Tucson Police Officer that he was, in fact, in violation of the order. 41. Nevertheless, the TPD officers either ignored Petitioner or otherwise informed him, Dont worry Roy. Were not going to arrest you today! 42. Subsequently; via oral argument, Petitioner brought the issue of facial over-breadth to the attention of Respondent Judge Berning; however, Judge Berning stated, in sum and substance, that absent a written motion, he would not consider the matter.

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43. Petitioner, who did not have the benefit of appointed counsel for approximately eleven months even though he was indigent and the State was seeking jail time, was reluctant to submit a written brief, in the reasonable belief that, by so doing, the state might argue that such action constituted a waiver of Petitioners right to appointed counsel. 44. One month later, on March 24, 2008 during sentencing for an alleged incident which occurred during a rally on June 03, 2006 in front of the Mexican Consulate, Judge Hays issued a sentencing order which prevented Petitioner from coming within 1,000 of any political demonstration, an order Petitioner immediately appealed, (as distinguished from the Defendants in Walker v Birmingham, 87 S.Ct 1824 [1968] and State v Chavez, 123 Ariz. 538 [1979] both who declined to exercise their appellate rights), thus preserving his expressive rights, at least as long as Petitioner

remained away from the traditional location of the

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Tucson Weekly Public Forum and outside the 1,000 foot limitation set forth by the order. 45. On December 19, 2008, after nearly eleven months of court enforced silence, Petitioner sent a letter to Respondent Judge Berning informing him that Petitioner intended to resume the Tucson Weekly Public Forum on January 14, 2009 and inviting Judge Berning to avoid a constitutional crisis by rescinding the order. (Exhibit 7.) 46. According to custom, Petitioner sent a copy of his

letter to Judge Berning to the entire readership of Common Sense II, including local media, the political leadership of Pima County and Tucson City Government, Open Border and Protect the Border Activists, selected members of the Tucson Police Department, and over 1,000 members of the local bar, including Tucson City and Pima County Prosecutors, Superior Court and City Court Judges, etc.,.

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47. On January 13, 2009 TPD Officer Kragnes (25451) met with TPD Lt. Hopffer (32541) who had recently returned Prosecutor from Alan a meeting Merritt. with TPD Assistant Incident City

Report

#0901140266 (Exhibit 8.) 48. TPD Lt. Hopffer directed Officer Kragnes to accomplish an Operations Plan and to assign officers to the detail. (Exhibit 8.) 49. Officer Kragnes then stated: the police response to this event is to arrest Mr. Warden and remove him from the area prior to him beginning his forum and attracting a crowd of people. (Exhibit 8.) 50. On May 16, 2009, subsequent to Petitioner having been found guilty of a series of offenses arising out of his exercise of pure political speech rights, Tucson City Court Judge Mitchell Eisenberg, entered a final order in CR 7030208 which, amongst other things, enjoined Petitioner from speak(ing) within 1,000 feet of any public demonstration, thus ending Petitioners

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planned run for a seat on the Tucson City Council (Exhibits 6, 9.) 51. On May 21, 2010 the Arizona Supreme Court denied Petitioner a hearing on Petitioners Petition for Review16 challenging Judge Eisenbergs order, thus

proscribing Petitioner from engaging in any public speech for a three year period of time. (Exhibits 3, 9.) V. LEGAL ARGUMENT 1st. Judge Lexs Conditions of Release Order Dated February 20, 2008 Was Not Lawful in That it Exceeded the Express Limitations on His Authority Set Forth by A.R.S. 13-3967 (D) and Fraguso v. Fell, 210 Ariz. 427 (App.). 52. A.R.S. 13-2810 (2), in pertinent part, provides: A person commits interfering with judicial proceedings if such person knowingly: (2) Disobeys or resists the lawful order, process or other mandate of a court. (Emphasis added.)

The Arizona Supreme Court, by denying Petitioner a hearing and a ruling on the merits of his challenge to the 3 year ban on his political speech, failed the promise it made to the people in Dombey and violated the mandate of the 9th Circuit Court of Appeals in Dream Palace.

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53. Regarding Arizona statutes, it is well settled: Appellate court interprets statutes and rules in accordance with the intent of the drafters, and looks to the plain language of the statute or rule as the best indicator of that intentIf the language is clear and unambiguous, the appellate court gives effect to that language and does not employ other methods of statutory construction. Fraguso at 430. 54. Moreover, the Fraguso Court said: Appellate court endeavors to harmonize statutes and court rules with the State Constitution, avoiding any unconstitutional construction. Fraguso at 431-432. 55. Additionally; the Fraguso Court set forth the law regarding bail and the provisions of A.R.S.13-3967: Trial courts discretion to set conditions of bail is not unfettered; a judicial officer setting bail must impose the least onerous condition or conditions which will reasonably assure the persons appearance. Fraguso at 429, 434. (Emphasis added, internal citations omitted.) Section 13-3967 (D) provides in pertinent part that a judicial officer may impose conditions reasonably necessary to assure appearance as required Fraguso at 430.

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56. Fraguso also referenced Gusick v Boies, 52 Ariz 309 (1951) which states: (B)ail is exacted for the sole purpose of securing the attendance in court of the defendant, when required The law is well settled that the power to require bail is not to be used as to make it an instrument of oppression. Gusick at 311, 312 (Emphasis added.) 57. The authors of A.R.S.13-3967 set forth with great particularity explicit jurisdictional limitations on an Arizona judges lawful authority to set conditions of release from custody. (Exhibit 2.) 58. The authors of A.R.S.13-3967, certainly mindful of the significant constitutional issues involved, made no provisions for the imposition of area restrictions. 59. Had the drafters of A.R.S.13-3967 intended to include area restrictions, they presumably would have clearly said so. Fraguso at 431. 60. Thus the order was clearly void on its face, since statutorily, Respondent Judge Lex lacked the authority to enjoin Petitioner from go(ing) within 1,000 feet of

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33 N Stone, especially since that explicit

area re-

striction served no legitimate government interest and also violated Petitioners pure political speech rights. 2nd. Arizona Law Provides a Clear Exception to the Collateral Bar Rule for the Press and the Political Speaker Engaged in Pure Political Speech. 61. Regarding the collateral bar rule and the First Amendment; Arizona law makes a clear distinction between the exercise of First Amendment pure political speech rights (public speaking writing, publication, etc.), for which the collateral bar rule does not apply, and the exercise of First Amendment conduct, or related activity (marching, picketing, etc.), for which the collateral bar rule does apply. Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257 (1966) and State v Chavez, 123 Ariz. 538, 542 (1979). B. Phoenix Newspapers, Inc. v Superior Court 62. Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that

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right. Phoenix Newspapers at 259, citing the Constitution of Arizona, Article 2 Section 6. (Emphasis added.) 63. Regarding prior restraint, and significant to the issues Petitioner presents herein; in Phoenix Newspapers, where Petitioners intentionally defied a preliminary injunction and published news concerning a murder trial, the Arizona Supreme Court set forth foundational constitutional reasons why the publics right to engage in the exercise of First Amendment pure political speech rights; to speak, write and publish, can never be infringed upon, even when the exercise of those rights might otherwise conflict with a criminal defendants right to an unbiased jury and a fair trial. 64. In Phoenix the trial judge further stated that the reason for the order (preliminary injunction) was to assure (defendant) Chambers a fair trial, and that if it is published that I found probable cause * * * it would

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be tantamount to everybody reading the paper to believe that he is already guilty. Id. at 258. 65. Nevertheless, in spite of what seems to be a clear conflict between the First Amendment right to speak, write and publish and a criminal defendants right to an unbiased jury, the Phoenix Court found for the appellant newspaper, and furthermore stated: The words of the Arizona Constitution are too plain for equivocation. The right of every person to to freely speak, write and publish may not be limitedThere can be no censor appointed to whom the press must apply for prior permission to publish for(i)t is patent that this right to speak, write and publish cannot be abused until it is exercised. Id. at 259 (Emphasis added.) The language of this provision makes plain it purpose to prevent previous restraints upon publication (and speech) * * * It has been said that the privilege which is thus protected in the organic law of the land is almost universally regarded, not only as highly important, but as being essential to the very existence and perpetuity of free government. Id. at 259. (Emphasis added, internal citations omitted.) The press (including internet published newsletters like Petitioners Arizona Common Sense) does not simply publish information about trials but guards against the miscarriage of justice by

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subjecting the police, prosecutors and judicial processes to extensive public scrutiny and criticism. Id. at 260. 66. Thus; in Phoenix Newspapers the Arizona Supreme Court found for the appellant newspaper and declared (t)he order prohibiting publication and discussion in this case is violative of Article 2, Section 6 of the Arizona Constitution, and is void. Id. at 260. C. State v. Chavez 67. In State v Chavez, the Arizona Appellate Court, while ruling political conduct (picketing) was subject to the collateral bar rule, did not overturn the Arizona Supreme Court in Phoenix Newspapers and rule that the exercise of pure political speech rights is also subject to the collateral bar rule. 68. In Chavez, after expressing that as a general principle of law that, unlike the exercise of pure political speech rights17, (p)icketing enjoys no special sanctuary mak-

The U.S. Supreme Court has expressly stated: There shall be no prior restraint of pure political speech, by injunction or
17

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ing it immune from judicial action, the Appellate Court, drawing heavily from the decision of the U.S. Supreme Court in Walker v City of Birmingham, 388 U.S. 307, went on to find labor leader Cesar Chavez in contempt for violating a Superior Court injunction prohibiting all massing, assembling, demonstrating or picketing upon or near the properties of G and S Produce Company, located in Yuma Arizona. Chavez at 538, 539. 69. In Walker the conduct proscribed by injunction18 was marching without a parade permit. Chavez at 541. 70. In Walker the Court stated with great clarity the following kinds of First Amendment conduct or related activeties which are subject to the collateral bar rule:

otherwise. New York Times v United States, 91 S.Ct. 2140, 2142, 2143 (1971).
18

In both Walker and Chavez the proscribing order was an injunction, which, as a final order of the court, was appealable. Petitioners proscribing order was a conditions of release order from which, in Arizona, there is no right of appeal.

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And this is not a case where the injunction was transparently invalid or had only a frivolous pretense to validity. We have consistently recognized the strong interest of state and local governments in regulating the use of their streets and other public places. Cox v. New Hampshire, 312 U.S. 569; Kovacs v. Cooper, 336 U.S. 77; Poulos v. New Hampshire, 345 U.S. 395; Adderley [388 U.S. 307, 316] v. Florida, 385 U.S. 39. When protest takes the form of mass demonstrations, parades, or picketing on public streets and sidewalks, the free passage of traffic and the prevention of public disorder and violence become important objects of legitimate state concern. Walker at 315, 316. 71. Thus; the state does have a legitimate interest in regulating the use of their streets and other public places. However; the state maintains no such legitimate interest in regulating pure political speech. 72. Thus; the Walker Court excluded pure political speech as core First Amendment conduct subject to the collateral bar rule. 73. In Chavez the Court stated: Appellants acknowledge that the State may legitimately enjoin non-peaceful conduct connected with a labor dispute. Chavez at 539.

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74. However; neither has this Petitioner nor has any Court, including the Walker and Chavez Courts, conceded or ruled that the State may legitimately

enjoin the exercise of pure political speech rights, by injunction or prior restraint, expressly proscribed by the U.S. Supreme Court. New York Times v. United States, 91 S.Ct 2140, 2142, 2143 (1971). 75. Moreover; the Chavez court cited the Arizona Supreme Court decision in Phoenix Newspapers: If * * * the act complained of as contemptuous is the violation of an order, decree, or judgment, and the contemnor can show that the order, decree, or judgment of the court was without jurisdiction or void for some other reason, he may not be held in contempt. Chavez at 540. (Emphasis added, internal citations omitted.) 76. Regarding pure political speech the Chavez Court stated: As noted above, the newspaper injunction cases have been the subject of appellate review in other jurisdictions. These decisions have gone full circle in their resolution of the collateral bar issue, but have generally arrived at the same conclusions as Arizona in Phoenix Newspapers. Chavez at 542. (Emphasis added.)

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77. And the conclusions arrived at can only be: the exercise of pure speech rights, of speech, the press and publication, are not subject to prior restraint or the collateral bar rule. 78. For further emphasis and in support of this conclusion the Chavez Court cited Cooper v Rockford Newspapers, Inc., 50 Ill. Ap3d 250: Then the Court, although citing Walker with approval, distinguished it on its facts as having been issued as [involving] a prior restraint on pure speech with the accompanying heavy presumption against the constitutional validity of the order, permitted the collateral attack and reversed the contempt judgments. Chavez at 542. (Emphasis added.) D. New York Times Company v United States 79. In New York Times v United States, 91 S.Ct 2140 (1971) the U.S. Supreme Court stated there shall be no prior restraint of pure political speech, by injunction or otherwise. Period. The people shall not be deprived or abridged of their right to speak, write, or publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The

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amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative and Judicial branchesBoth the history and language of the First Amendment support the view the press (and public speaker) must be left free to publish news, whatever the source, without censorship, injunctions or prior restraints. New York Times, 2142-2143. (Emphasis added.) 80. Petitioner respectfully requests the Court pay particular attention to the italicized portions above: The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative and Judicial branches 81. Significant to the issues presented by this case; New York Times expressly prohibited the imposition of injunctions or the prior restraint of pure political speech. E. Providence Journal Company 82. Regarding the collateral bar rule: The last major Court decision on prior restraint of pure political speech rights was rendered in 1986 by the United States Court of Appeals, First Circuit in Matter of Provi-

dence Journal Company, 820 F.2d 1342.

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83. By way of factual background (nearly identical to the background considered by the Arizona Supreme Court in Phoenix twenty years before): On November 13,

1985 the U.S. District Court entered a temporary restraining order barring (the Providence Journals) publication of certain information relating to a news story, setting a hearing date19 for November 15, 1986. Id. at 1345. 84. However; in spite of the order dated November 13, 1986, the Providence Journal published the proscribed information on November 14, 1986, inspiring the Journals eventual conviction for criminal contempt a significant penalty which

and the imposition of

included 200 hours of community service and a fine of $100,000. Id. at 1345.

The hearing date was delayed two days to accommodate the schedule of the Appellant.
19

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85. On Appeal the Providence Court held for the appellant newspaper, using very sharp language to state the following: A party subject to an order that constitutes a transparently invalid prior restraint on pure speech may challenge the order by violating it. Id. at 1344. 86. Significantly; with regards to the collateral bar rule the Providence Court went to considerable length to analyze the decision of the U. S. Supreme Court in Walker v Birmingham: In Walker v City of Birminghamthe Court ruled that the protestors could not raise constitutional issues collaterally in the contempt proceedings. As the Supreme Court noted in United States v, United Mine Workers, so long as the court has jurisdiction over the parties and the subject matter of the controversy, an order it issues must be obeyed. Providence at 1346 (Emphasis added.) At first glance Walker would appear to control the instant case20The Walker Court was, howHere the Court uses language nearly identical to that used by the Arizona Appellate Court in Chavez to distinguish pure political speech which may not be enjoined as per the ruling in Phoenix Newspapers from First Amendment conduct, such as demonstrating and picketing, which
20

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ever, careful to point out that the order issued by the Alabama court was not transparently invalid. The unmistakable import of this language is that a transparently invalid order cannot form the basis for a contempt citation. Id. at 1346. (Emphasis added.) Court orders are accorded a special status in American jurisprudence. While one may violate a statute and raise as a defense the statutes unconstitutionality, such is not generally the case with a court order. Nonetheless, court orders are not sacrosanct. An order entered by a court clearly without jurisdiction over the contemnors or the subject matter is not protected by the collateral bar rule. Were this not the case, a court could wield power over parties or matters obviously not within its authoritya concept inconsistent with the notion that the judiciary may exercise only those powers entrusted to it by law. Id. at 1347. (Emphasis added.) The same principle supports an exception to the collateral bar rule for transparently invalid court orders. Requiring a party subject to such an order or face contempt would give the courts powers far in excess of any authorized by the Constitution or Congress. Recognizing an exception to the collateral bar rule for transparently invalid orders does not violate the principle that no man can be judge in his own case anymore than does recognizing such an exception for jurisdictional defects. The key to both exceptions is the notion that although a court ordereven an arguably may be temporarily enjoined as set forth in Walker. Chavez at 540.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

incorrect court orderdemands respect, so does the right of the citizen to be free of clearly improper exercises of judicial authority. Id. at 1347. (Emphasis added.) 87. Thus; the Providence Court established the basis for the exception to the collateral bar rule when the issuing court lacks subject matter jurisdiction, i.e. the prior restraint of pure political speech. 88. Moreover; the Providence Court provided proper context to the maxim expressed in Walker, and Chavez, that no man can be judge in his own case, clearly stating that while even an arguably incorrect court orders deserves respect, so does the right of the citizen to be free of clearly improper exercises of judicial authority. Providence at 1347. (Emphasis added.) 89. Regarding prior restraint and the preeminent constitutional protections provided for pure political speech, writing and publication, the Providence Court continued: As noted, the principal purpose of the First Amendments guaranty is to prevent prior re-

38

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straints. The Supreme Court has declared: Any prior restraint on expression comes to this Court with a heavy presumption against its constitutional validity. When, as here, the prior restraint impinges upon the right of the press to communicate news and involves expression in the form of pure speechspeech not connected with any conductthe presumption of unconstitutionality is virtually insurmountable. Id.at 1348. (Emphasis added, internal citations omitted.) 90. The Providence Court then distinguished political conduct, which is subject to temporary prior restraint, from pure political speech which is not: The distinction between pure speech and speech involving conduct clearly distinguishes the order at issue in Walker (and Chavez) from the order at issue in the instant case. Id. at 1348. We have consistently recognized the strong interest of the state and local governments in regulating the use of their streets and other public places. When protest takes the form of mass demonstrations, parades or picketing on public streets, and sidewalks, the free passage of traffic and the prevention of public disorder and violence become important objects of legitimate state concern. As the Court stated in Cox v Louisiana, We emphatically reject the notion that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as those

39

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amendments afford to those who communicate ideas by pure speech. Id. at 1348. 91. And finally: in the instant case, the proscriptive order was a conditions of release order issued in the Pima County Jail; thus Petitioner was denied a hearing before his expressive rights were stripped away, an issue the Providence Court addressed as follows: An additional point to note is that the prior restraint was issued prior to a full and fair hearing with all the attendant procedural protections. A prior restraint issued in these circumstances faces an even heavier presumption of invalidity and the transparent unconstitutionality of the order is made even more patent by the absence of such a hearing. Id at 1351. 92. And yet remarkably, in spite of all the case law cited above, including the Arizona cases Phoenix Newspapers and Chavez, Respondent Judges would state the law as follows: In Arizona, the ruling in Chavez requires the press and pure public speakers to submit to selected portions of the collateral bar rule as set forth in Walker and Chavez, without the attendant safeguards set forth in Walker (order must be appealable and issue, upon application, from a court of general jurisdiction), even though both

40

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Walker and Chavez courts excluded pure public speech from being subject to the collateral bar rule. Moreover; unlike in Walker and Chavez21 Arizona judges in courts of lesser jurisdiction may ignore statutory limitations placed on their authority by A.R.S. 13-3967 (D) and issue whatever non appealable conditions of release orders they wish to silence the expression of any political opinion they, or their employers, deem objectionable. 93. Petitioner respectfully submits: In Phoenix Newspapers the Arizona Supreme Court correctly stated

the law regarding the prior restraint of pure political speech rights in 1966; the U.S. Supreme Court in Walker and the Arizona Court of Appeals in Chavez drew the distinction between political conduct, which may be temporarily limited, and the exercise of pure political speech rights which may not.

21

Both Courts limited the authority (1) upon application (2) to issue appealable proscriptive orders, (3 )from courts of general jurisdiction. None of these safeguards were available to Petitioner.

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VI. SUMMARY 94. A.R.S. 13-2810 (2) (aka Interference with a Judicial Proceeding) proscribes one who disobeys or resists the lawful order, process or other mandate of court. 95. However; Respondent City Court Judge Lexs Order dated February 20, 2008, which set forth area restricttions not intended to serve any legitimate government interest, violated the express limitations on his authority set forth by A.R.S. 13-3967 and therefore was not a lawful order of the court. 96. Moreover; Arizona law, as set forth in Phoenix Newspapers and Chavez, exempt the press and pure public speech from prior restraint and the collateral bar rule. 97. Therefore; Respondent Judge Berning should not have found Petitioner guilty of violation of A.R.S. 13-2810. VII. CONCLUSION Frankly; with the exception of the protections for pure political speech set aside, Petitioner might otherwise have been happy to submit to the conditions set forth in Walker

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and Chavez, to regulate political conduct if the state would have provided him the attendant safeguards set forth in Walker: "An injunction duly issuing out of a court of general jurisdiction with equity powers upon pleadings properly invoking its action, and served upon persons made parties therein and within the jurisdiction, must be obeyed by them however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming but void law going to the merits of the case. Walker at 314. (Emphasis added.) However; in this case there was no injunction duly issuing out of a court of general jurisdiction with equity powers. Here, the issuing court was one of limited jurisdiction. Here, there were no pleadings properly invoking (court) action. Here, the state didnt even bother to apply for an injunction restricting Petitioners speech; an obedient Tucson Municipal Court Magistrate Judge, in furtherance of the political interests of the Tucson City Council, violated the

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express limitations placed on his authority by A.R.S. 133967(D) and performed that function for them. Here, Petitioner was denied even the appearance of due process; an injunction, the right of appeal, the right to maintain the status quo, and the right to prompt judicial review while First Amendment rights were maintained. Here, there was not even the pretense of Due Process of Law. Here, the action was brutal. Here, the proscriptive order which stripped Petitioners rights was issued by a creature of the state in classic policestate fashion; at night, in darkness, in the Pima County Jail Video Court with Petitioner in an orange jumpsuit, handcuffs and leg irons, out of public view; quite literally in the Belly of the Beast. Here, the proscriptive order clearly violated the express limitations placed on such orders by A.R.S. 13-

3967(D).

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Significantly; stated:

In Walker the U.S. Supreme Court

And this is not a case where the injunction was transparently invalid or had only a frivolous pretense to validity. We have consistently recognized the strong interest of state and local governments in regulating the use of their streets and other public places. Cox v. New Hampshire, 312 U.S. 569; Kovacs v. Cooper, 336 U.S. 77; Poulos v. New Hampshire, 345 U.S. 395; Adderley [388 U.S. 307, 316] v. Florida, 385 U.S. 39. When protest takes the form of mass demonstrations, parades, or picketing on public streets and sidewalks, the free passage of traffic and the prevention of public disorder and violence become important objects of legitimate state concern. Walker at 315, 316. Thus; it was within the clear contemplation of the Walker Court that local courts were capable of issuing transparently invalid orders having frivolous pretense to validity. It was also within the clear contemplation of the authors of A.R.S. 13-2810 that a court could issue an unlawful order: if they expected the public to submit to any order of the court, especially an order issuing from a court of limited jurisdiction, they would have said so.

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Instead they proscribed the violation of any lawful order. Moreover; as set forth in Phoenix Newspapers, Walker, Chavez and Providence: there is a great distinction between First Amendment related conduct or activity and the exercise of pure political speech rights. The state does have a legitimate interest when protest takes the form of mass demonstrations, parades, or picketing on public streets and sidewalks in which the state maintains legitimate interest, as stated in Walker, Chavez and Providence. However; the state has no legitimate interest in proscribing pure political speech; and no case, state or federal, in any jurisdiction, has ever said so. The Arizona Constitution says the purpose of the state is to protect the individual rights of the people. Petitioner respectfully submits: Now is the proper time for Division II of the Arizona Appellate Court to so act.

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VIII. PRAYER Please note: This is the second22 time Petitioner has presented the same issue to subsequent to two convictions arising out of events which occurred during his lawful exercise of core First Amendment protected right to engage in pure political speech. Petitioner respectfully submits: Arizona Appellate Courts cannot continue to apply the rule of law to protect the rights of powerful media corporations, such as in Phoenix Newspapers, Dombey and Citizen v. Miller,23 and at the same time deny the same protection to the controversial public speaker. For reasons set forth above Petitioner respectfully requests Division II of the Arizona Appellate Court to accept jurisdiction, decide Petitioners cause on the merits, reverse On May 21, 2010 the Arizona Supreme Court denied jurisdiction on Petitioners Petition for Review challenging a Tucson Municipal Court Order banning all Petitioners pure political speech rights for three years. (Exhibits 3, 9.)
22 23

Citizen Publishing Co. v Miller, 210 Ariz. 513, 516.

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1 2 3 4 5 6 7 8 9

his conviction for violation of A.R.S. 13-2810(2) and enter a judgment of NOT GUILTY.

RESPECTFULLY SUBMITTED this 06th day of November 2013. __________________________ Roy Warden, Petitioner

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CERTIFICATE OF COMPLIANCE I Roy Warden, Petitioner in Special Action # 2CASA 2013-0091, do herein certify that this document was prepared in compliance with all the Rules of the Court and the Rules of Procedure for Special Actions, including the following: 1. This document was prepared in Microsoft Word, using a double line spaced, proportionally spaced typeface, 14 Point Century Schoolbook 2. The total number of words used, except those excluded as provided by Ariz. R. Crim. P. Rule 31.12 and 31.13, is 6,633. RESPECTFULLY SUBMITTED this 06th day of November 2013 . BY ____________________________ Roy Warden, Petitioner

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CERTIFICATE OF E-MAIL SERVICE

I Roy Warden, Petitioner in Warden v. Tucson Municipal Court Judges Michael Lex and Thomas Berning, and the State of Arizona as Real Party in Interest, Action #2CA-SA 2013-0091, do herein Declare, Swear and Affirm as follows: On November 06, 2013 via email, I served upon the parties named above my Petition for Special Action and Appendix, addressed to the following recipient: Dianne Cotter Supervisor/Administrator Tucson City Court (520) 791-4189 courtweb@tucsonaz.gov

_________________________ Roy Warden, Petitioner

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2CA-SA 2013 0091

16 17 18 19 20 21 22 23 24 25 26 27 28

APPENDIX

Roy Warden 3700 South Calle Polar Tucson Arizona 85730 roywarden@hotmail.com (520) 551-3496

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EXHIBIT 1

13

14

15

16

17

18

19

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EXHIBIT 2

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13-3967. Release on bailable offenses before trial; definition

A. At his appearance before a judicial officer, any person who is charged with a public offense that is bailable as a matter of right shall be ordered released pending trial on his own recognizance or on the execution of bail in an amount specified by the judicial officer. B. In determining the method of release or the amount of bail, the judicial officer, on the basis of available information, shall take into account all of the following: 1. The views of the victim. 2. The nature and circumstances of the offense charged. 3. The weight of evidence against the accused. 4. The accused's family ties, employment, financial resources, character and mental condition. 5. The results of any drug test submitted to the court. 6. Whether the accused is using any substance if its possession or use is illegal pursuant to chapter 34 of this title. 7. Whether the accused violated section 13-3407, subsection A, paragraph 2, 3, 4 or 7 involving methamphetamine or section 133407.01. 8. The length of residence in the community. 9. The accused's record of arrests and convictions. 10. The accused's record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings. 11. Whether the accused has entered or remained in the United States illegally. 12. Whether the accused's residence is in this state, in another state

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or outside the United States. C. If a judicial officer orders the release of a defendant who is charged with a felony either on his own recognizance or on bail, the judicial officer shall condition the defendant's release on the defendant's good behavior while so released. On a showing of probable cause that the defendant committed any offense during the period of release, a judicial officer may revoke the defendant's release pursuant to section 13-3968. D. After providing notice to the victim pursuant to section 13-4406, a judicial officer may impose any of the following conditions on a person who is released on his own recognizance or on bail: 1. Place the person in the custody of a designated person or organization agreeing to supervise him. 2. Place restrictions on the person's travel, associates or place of abode during the period of release. 3. Require the deposit with the clerk of the court of cash or other security, such deposit to be returned on the performance of the conditions of release. 4. Prohibit the person from possessing any dangerous weapon or engaging in certain described activities or indulging in intoxicating liquors or certain drugs. 5. Require the person to report regularly to and remain under the supervision of an officer of the court. 6. Impose any other conditions deemed reasonably necessary to assure appearance as required including a condition requiring that the person return to custody after specified hours. E. In addition to any of the conditions a judicial officer may impose pursuant to subsection D of this section, the judicial officer shall impose both of the following conditions on a person who is charged

57

with a felony violation of chapter 14 or 35.1 of this title and who is released on his own recognizance or on bail: 1. Electronic monitoring where available. 2. A condition prohibiting the person from having any contact with the victim. F. The judicial officer who authorizes the release of the person charged on his own recognizance or on bail shall do all of the following: 1. Issue an appropriate order containing statements of the conditions imposed. 2. Inform the person of the penalties that apply to any violation of the conditions of release. 3. Advise the person that a warrant for his arrest may be issued immediately on any violation of the conditions of release, including the failure to submit to deoxyribonucleic acid testing ordered pursuant to paragraph 4 of this subsection. 4. If the person is charged with a felony or misdemeanor offense listed in section 13-610, subsection O, paragraph 3 and is summoned to appear, order the person to report within five days to the law enforcement agency that arrested the person or to the agency's designee and submit a sufficient sample of buccal cells or other bodily substances for deoxyribonucleic acid testing and extraction. If a person does not comply with an order issued pursuant to this subsection, the court shall revoke the person's release. G. At any time after providing notice to the victim pursuant to section 13-4406, the judicial officer who orders the release of a person on any condition specified in this section or the court in which a prosecution is pending may amend the order to employ additional or different conditions of release, including either an increase or reduction in the amount of bail. On application, the defendant shall

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be entitled to have the conditions of release reviewed by the judicial officer who imposed them or by the court in which the prosecution is pending. Reasonable notice of the application shall be given to the county attorney and the victim. H. Any information that is stated or offered in connection with any order pursuant to this section need not conform to the rules pertaining to admissibility of evidence in a court of law. I. This section does not prevent the disposition of any case or class of cases by forfeiture of bail or collateral security if such disposition is authorized by the court. J. A judicial officer who orders the release of a juvenile who has been transferred to the criminal division of the superior court pursuant to section 8-327 or who has been charged as an adult pursuant to section 13-501 shall notify the appropriate school district on the release of the juvenile from custody. K. For the purposes of this section and section 13-3968, "judicial officer" means any person or court authorized pursuant to the constitution or laws of this state to bail or otherwise release a person before trial or sentencing or pending appeal.
1 2 3 4 5 6 7 8 9 10 11 12 13 14

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EXHIBIT 3

60

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EXHIBIT 4

62

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EXHIBIT 5

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EXHIBIT 6

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TUCSON COURT SUSPENDS FIRST AMENDMENT, ENDS WARDENS CANDIDACY FOR CITY COUNCIL CSII Press March 22, 2009 Late last month, after obtaining the necessary paper work from the Tucson City Clerk and consulting with several seasoned political operatives, Roy Warden, publisher of Common Sense II, informed the Tucson City Court he was planning to run for Karin Uhlichs seat on the Tucson City Council in November 2009. On March 16, 2009 Tucson City Court Judge Mitchell Eisenberg ended Wardens fledgling candidacy by issuing an order which stated: Do not speak within 1,000 feet of any public demonstration. Its the most, outrageous, unconstitutional court order Ive ever heard of, said Warden. There is simply no record, anywhere, of any court issuing such an order, or if it did, having any appellate court uphold it. Regarding the doctrine of prior restraint, American courts have protected the rights of Nazis to march in Jewish neighborhoods, and the New York Times to publish the Pentagon Papers in a time of war. Prior restraint of political speech on the theory it is dangerous to public safety is simply not allowed in American law, said Warden. At the March 16, 2009 hearing Tucson City Prosecutor Alan Merritt argued Wardens speech rights should be suspended

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because local Hispanic radicals and members of groups like La Raza, MEChA, etc., had become so incensed at previous Warden rallies, they engaged in conduct and committed acts which they later regretted. We must protect them from the consequences of their own actions by prohibiting Mr. Wardens speech. More than a half dozen Pendejo Thugs have been arrested at previous Warden rallies for cursing, spitting, throwing objects, knocking down barriers intended to protect public safety and otherwise disturbing the peace. During the Riot In Armory Park on March 10, 2006 six Pendejo Thugs, who knocked down police officers and kicked them in the face, were arrested for felony assaults on TPD officers, but Pima County Attorney Barbara LaWall refused to prosecute. Hecklers Vetos are also not allowed, said Warden. The state may not prohibit political speech simply because it believes such speech might result in others breaking the law. Thats the kind of nonsense the racist goons and red necked thug Sheriffs and Judges in the South did at the commencement of the Civil Rights Movement. Warden says he intends to enlist the help of the ACLU to help him prepare an appeal of Judge Eisenbergs Orver via Special Action in the Arizona Appellate Court. For further information, please contact: Roy Warden, Publisher Common Sense II (520) 881-0535 roywarden1@netzero.net http://www.wardenburnsmexicanflags.com

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EXHIBIT 7

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December 22, 2008 The Honorable Judge Berning Tucson City Court 103 E. Alameda Tucson AZ 85701 Re: CR-8022995, CR-8045759, CR-8013622 Warden Defies Tucson Municipal Court Judges Dear Judge Berning: In response to your most recent order setting January 20, 2009 as our next court date, and your comment regarding looking at a new list of taxpayer-paid legal counsel to represent my interests, please note my following objections and comments:
1.

Nearly one year has passed since I was arraigned on the first of the above three consolidated cases. The Conditions of Release in each of the cases prohibit me from coming within 1,000 feet of public property near the corner of Pennington and Stone which I have used to conduct the Tucson Weekly Public Forum for the past two years. During this time I have been prohibited from the free exercise of my political rights as set forth by the First Amendment of the United States Constitution. To date more than one dozen Court Appointed lawyers have refused my representation citing a Conflict of Interest. During our last hearing you informed me the last lawyer you spoke to would be the last lawyer you would solicit on my behalf and, should he not agree to represent me, you would cease looking for counsel and directly address the issues presented by the States violation of my constitutional right to a speedy trial.

2.

3.

4.

5.

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6.

Your most recent order, however, informs me the endless search will now continue. It appears the Court is continuing to work in concert with the State to deprive me of my constitutional right to assembly and public speech, a practice first instituted by Judges Riojas, Cranshaw and Hays, working hand in hand with Tucson City Prosecutors Rankin and Merritt. As you are no doubt well aware, such practice has been proscribed by a series of U.S. Supreme Court decisions dating back to the commencement of the Civil Rights Movement.

7.

8.

Therefore; please be advised that I will commence the third annual Tucson Weekly Public Forum on January 14, 2009, on Library Square near the corner of Pennington and Stone, in direct and intentional defiance of current Municipal Court Orders. Should you consolidate a new case arising out of a new violation of my expressive rights, with the current cases now pending, I will seek injunctive relief in Federal Court. You may wish to avoid a constitutional crisis, and a further erosion of the public confidence in the integrity of the Tucson Municipal Court, by immediately rescinding the current orders which now prevent my speech, or, you may inform the various judges who issued the orders they may pound sand. In any event, the Tucson Weekly Public Forum will recommence January 14, 2009, as scheduled. My right and the right of We The People to gather on the public square to excoriate malfeasant public officials, including Tucson City Court Judges, will not further be denied. Yours truly, Roy Warden CC: Tucson City Prosecutor Alan Merritt and all 2,000 judges, lawyers, media outlets, the general public, citizen activist groups, etc. who are current subscribers to Common Sense II For more information, please contact: Roy Warden Director, TWPF roywarden@cox.net

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EXHIBIT 8

72

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EXHIBIT 9

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