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ERIC S. MANCH, ESQ. MANCH LAW FIRM PLLC 177 N. Church Ave. Suite 200 Tucson, AZ 85701 AZB# 022935, PCC# 65769 Phone: (520) 882-8011 Fax: (520) 798-1980 Email: eric.manch@gmail.com Attorney for Plaintiff. IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF PIMA ) Case No.: C20115469 ) ) (Tucson City Court Cause Number Plaintiff/Petitioner, ) CR9006068) ) v. ) COMPLAINT AND PETITION FOR HON. THOMAS BERNING, magistrate ) SPECIAL ACTION ) Judge of the Tucson City Court, ) ) Respondent. ) and ) ) ) THE STATE OF ARIZONA, ) ) Real Party in Interest. ) ) ) Plaintiff/Petitioner ROY WARDEN, by and through counsel undersigned, and ROY WARDEN, pursuant to Ariz. R. P. Spec. Actions 1, 3, and 4, hereby petitions this Court to accept jurisdiction of this matter and enter an order dismissing the criminal complaint in Tucson City Court cause number CR9006068 because the judicial order on which the criminal complaint is based violated Plaintiff/Petitioners rights under the First and Fourteenth Amendments of the United States Constitution, and Article II, section 6 of the Arizona Constitution. Thus, Respondents failure to dismiss the complaint in CR9006068, either by its own initiative or by denying Petitioners motion to dismiss the complaint, means that 1) the

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Respondent has failed to exercise discretion which he has a duty to exercise, 2) the Respondent and Real Party in Interest State of Arizona are proceeding, or threatens to proceed without or in excess of its jurisdiction or legal authority, and 3) that Respondents denial of Petitioners motion to dismiss on these grounds was arbitrary or capricious, or an abuse of discretion. Ariz. R. P. Spec. Actions 3. Plaintiff/Petitioner notes that this action was filed previously with this Court on July 27, 2011. Plaintiff/Petitioner files this Complaint and Petition for Special Action pursuant to this Courts order striking Plaintiff/Petitioners initial Petition for failure to comply with Ariz. R. P. Spec. Actions. 4(c) and 4(d). RESPECTFULLY SUBMITTED THIS ____ DAY OF AUGUST, 2011. MANCH LAW FIRM PLLC _______________________ Eric S. Manch Attorney for Petitioner

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STATEMENT OF FACTS 1. Petitioner Roy Warden is a resident of the State of Arizona and a citizen of the United States. 2. The Respondent Judge is, and at all times material herein was, a duly qualified and acting Magistrate Judge of the Tucson City Court, City of Tucson, County of Pima, State of Arizona. 3. The Real Party in Interest is the State of Arizona. 4. At all times relevant to this complaint (except where specifically noted otherwise), all events occurred within the State of Arizona. 5. Warden is a community organizer and activist known for his strident advocacy on immigration-related issues. 6. Warden is also a journalist and blogger who publishes frequently on the Internet. See http://www.wardenburnsmexicanflags.com/. 7. On two separate occasions, Warden was ordered by Tucson City Court to stay away from the downtown Tucson area: in CR8017674, he was ordered Do not go within 1000 feet of 33 N. Stone, and on CR8013622, he was ordered Do not go to library at 101 N. Stone, Library Park, or the sidewalks on the perimeter. Possess no weapons. (hereafter The Order) See Conditions of Release and Order in CR8013622 dated February 14, 2008, attached as Exhibit 1. 8. The Order included the area surrounding the Pima County Public Library, including Library Park, an area commonly used for gatherings and rallies. The Order specified a large area of downtown Tucson including the Pima County Legal Services Building,

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the Bank of America Building (currently home to several Pima County offices, including the Pima County Assessor and Pima County Public Defender), and the Pima County Public Library. This area is a nexus of downtown Tucson pedestrian traffic, and is frequently used as a public forum for peaceful expression. 9. On April 30, 2008, CR8017674 was dismissed. See Motion to Dismiss and Order dated April 30, 2008, attached as Exhibit 2. 10. As of January 14, 2009, CR8013622 was still in effect. 11. On December 22, 2008, Warden sent an email to Tucson City Court Magistrate Judge Thomas Berning, who presided over CR8013622 (as well as two other unrelated cases pertaining to Warden). See Letter to Judge Berning dated December 22, 2008 attached as Exhibit 3. 12. In this letter, Warden notified Judge Berning that the Order impinged upon his right of free speech and expression, and that he intended on holding his planned rally in Library Park on January 14, 2009, as scheduled. Id. 13. Warden also asked Judge Berning to rescind the Order: 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. Id. 14. At the time the letter was sent through January 14, 2009, Warden was not represented by counsel.

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15. On January 14, 2009, Warden showed up at Library Park as promised. Tucson Police Department officers were waiting for him. Warden was arrested for Interference with Judicial Proceedings, in violation of Ariz. Rev. Stat. 13-2810 (case number CR9006068). 16. The Order prevented Warden from making a planned run for a seat on the Tucson City Council. See Tucson Court Order Ends Warden Candidacy for City Council, at http://wardenburnsmexicanflags.com/index.php?option=com_content&task=view &id=62&Itemid=9 17. Warden was appointed counsel in CR9006068. Warden moved to dismiss the complaint, arguing 1) that the orders in CR8017674 and CR8013622 were invalid because, respectively, its directives were contradictory and the underlying charge was dismissed, 2) that both orders violated Wardens rights under the First and Fourteenth Amendments of the United States Constitution and hence transparently invalid, and 3) that the orders both were so broad as to be beyond the jurisdiction of the court as defined in Ariz. R. Crim. 7.2(a). See Wardens Motion to Dismiss attached as Exhibit 4. 18. On November 9, 2010 the trial court, in a handwritten opinion, denied Wardens Motion to Dismiss. See Order dated November 9, 2010 attached as Exhibit 5. 19. The trial court agreed that the Order might be overbroad and perhaps subject to a viable constitutional challenge. Exhibit 5 at 4. However, it stated that an individual subject to an order from a court with jurisdiction must obey that order until it is

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reversed by orderly and proper proceedings. Exhibit 5 at 2-3 (quoting State v. Chavez, 123 Ariz. 538, 540-41 (App. 1979)). 20. Further, the trial court rejected Wardens oral argument that he was unaware of the need to challenge the trial courts order regarding release conditions due to his lack of appointed counsel, noting that Warden had known to file a Motion for Return of Bail without the apparent assistance of counsel. Exhibit 5 at 5. 21. After issuing its order denying Wardens motion, the trial court agreed to stay the proceedings to allow Warden to petition for special action relief. This petition follows.

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QUESTION PRESENTED Did the Order unconstitutionally restrict Wardens right to free speech and free expression under the First Amendment of the United States Constitution, and Article II, section 6 of the Arizona Constitution?

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ARGUMENT I. JURISDICTIONAL ARGUMENT Special action jurisdiction is appropriate where the issue raised is one of first impression in Arizona that is purely legal in nature and likely to recur, yet capable of evading review. Bohsancurt v Eisenberg, 212 Ariz. 182, 129 P.3d 471 (App. 2006). The decision whether to accept special action jurisdiction is discretionary. Potter v. Vanderpool, 225 Ariz. 495, 6, 240 P.3d 1257, 1260 (App. 2010). This could can and should exercise its discretion where the issue presented is a purely legal question not addressed fully by existing case law, and where the petitioner has no remedy by appeal. See Ariz. R. P. Spec. Actions 1(a); State ex rel. Romley v. Martin, 203 Ariz. 46, 4, 49 P.3d 1142, 1143 (App. 2002). see also A.R.S. 13-4033 (enumerating and limiting appealable orders); State v. Jimenez, 188 Ariz. 342, 345, 935 P.2d 920, 923 (App. 1996) (denial of motion to modify probation conditions not appealable). Relief is appropriate if the respondent judge has abused his discretion by committing an error of law or proceeded in excess of his legal authority. See Ariz. R. P. Spec. Actions 3; Potter, 225 Ariz. 495, 5-6, 240 P.3d at 1259-60. In the present case, Petitioner Warden filed a motion to dismiss a pending matter before the Tucson City Court on grounds that the underlying judicial order behind the action violated the United States and Arizona Constitutions. Respondent Judge Berning denied the motion. Warden thus has a legal issue of statewide importance that he cannot appeal beyond the Superior Court in the absence of special action relief. This is because appeals from justice courts, municipal courts, and other inferior courts not of record are limited by statute. Campbell v. Arnold, 121 Ariz. 370, 371, 590 P.2d 909, 910 (1979). Under
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Arizona law, a defendant may appeal a final judgment in an inferior court only if the underlying action involves the validity of a tax, impost, assessment, toll, municipal fine, or statute. Ariz. Rev. Stat. 22-375. For all other matters, there shall be no appeal from the judgment of the superior court given in an action appealed from an inferior court, even for matters involving state and federal constitutional law. See State v. Eby, 2 CA CR 2010-0141 (January 12, 2011) (Arizona Court of Appeals Division 2 dismisses appeal taken from denial of motion to suppress in superior court in DUI case claiming lack of jurisdiction). Put plainly, this special action involves matters of free speech that run to the core of every citizen of the United States. It is likely that issues of this nature will arise again, often at the municipal and justice court level. Indeed, it is inferior court judges who most frequently order and enforce prohibitions of the nature at issue in this appeal. If this Court does not accept review, Warden will have no avenue of redress beyond the superior court. In so doing, this Court will ensure that the State may continue to deny citizens the right of free speech simply by enforcing these prohibitions at the municipal court level. This Court must not allow the State to evade review of the state Supreme Court in this way. It is thus appropriate for the Court to accept jurisdiction in this matter. II. MERITS ARGUMENT A. The Order imposes a prior restraint on Wardens speech, and unconstitutionally limits Wardens free speech rights under the Arizona and United States Constitutions. Any system of prior restraint of expression comes to this Court bearing a heavy presumption against its constitutional validity. New York Times Company v United States, 91 S.Ct. 2140, 2141 (1971). The amendments (Bill of Rights) were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches...(t)he

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Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people s freedoms of press, speech religion, and assembly. Id. at 2142.

The Court continued: The rights themselves must not be curtailed. The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. New York Times at 2144, citing De Jonge v Oregon, 57 S.Ct. 255, 260. Here, the Order plainly and unambiguously imposes a prior restraint on Wardens free speech and free expression rights. The Order circumscribes the Library Park area and surrounding buildings in its entirety, prohibiting him access. Warden thus is unable to demonstrate peaceably like any other citizen of Arizona and the United States. It thus triggers strict scrutiny review. B. This Court should accept jurisdiction and grant relief because Warden, as a journalist and independent blogger, falls within the journalist exception to the collateral bar rule as set forth in State v. Chavez, 123 Ariz. 538 (App. 1979), and Phoenix Newspapers v. Superior Court, 101 Ariz. 257 (1966). The Arizona Supreme Court has recognized the right of free speech in the Arizona Constitution in the face of judicial attempts to circumscribe it. A court may not preemptively limit speech related to a pending court case with a threat of a contempt citation. Phoenix
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Newspapers, Inc., v. Superior Court, 101 Ariz. 257, 418 P.2d 594 (Ariz. 1966). Phoenix Newspapers involved a newspaper reporter who wrote a story about a capital murder case, in contravention of a superior court judges injunction. At the hearing, which was open to the public, the judge said, I dont want the newspapers to publish what happened here this morning, and told the audience that he would find in contempt anyone who wrote about the hearing. Id. at 258, 418 P.2d at 596. The Arizona Supreme Court held that this contempt citation violated Article 2, 6 of the Arizona Constitution.1 The Courts language was unambiguous: The words of the Arizona Constitution are too plain for equivocation. The right of every person to freely speak, write and publish may not be limited but such a person may be held accountable for an abuse of that right. There can be no censor appointed to whom the press must apply for prior permission to publish. Id. at 259, 418 P.2d at 596. Additionally, because courts are public institutions, the Court found it all the more important to expose their decisions to the light of public opinion. Id. at 259-60; 418 P.2d at 596-97. The Arizona Supreme Court has held the freedom of journalists to be so important that it has carved out an exception for journalists raising collateral challenges to gag orders, even in cases where it disfavors collateral challenges. State v. Chavez, 123 Ariz. 538, 601 P.2d 301. This Court should apply the exception to the collateral bar rule here. Warden is akin to a journalist attempting to speak against policies with which he disagrees. He should be entitled to the same protection from judicial attempts to muzzle that freedom. He frequently writes about local issues on his blog and website. Although he is not formally part of a newspaper or corporate news organization, he is nonetheless a journalist
1

Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.
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entitled to the same freedoms as other journalists. The formal distinction between establishment journalists and independent bloggers means much less now than it ever did, with major daily newspapers on the decline and independent news blogs on the rise. In fact, independent bloggers often produce news of greater relevance and importance than establishment news organizations. Glenn Greenwald, a prolific news blogger for the website Salon.com, remarked the following about independent news source WikiLeaks: Well, for one thing, I would point to the fact that, over the last year, the newsworthy scoops that have been generated by WikiLeaks exceed the number of newsworthy scoops of all other media outlets combined. It is virtually impossible to read a story, a news story, about any of the countries in the Middle East that are undergoing such turmoil, or U.S. military programs in Iraq or Afghanistan, without reference to documents that WikiLeaks has disclosed. And, of course, the allegation is its really Bradley Manning who is responsible for that. So the amount of light that has been shed on the national security state, which has been operating under an extreme and dangerous level of secrecy for the last decade, at least, is inconceivable, that nobody could have thought that that level of transparency was possible. Glenn Greenwald on Why He Strongly Supports Wikileaks, Bradley Manning, at http://www.democracynow.org/blog/2011/4/29/glenn_greenwald_on_why_he_strongly_s upports_wikileaks_bradley_manning. Special action relief in this case is appropriate and proper. C. Even in the absence of an exception to the collateral bar rule, this Court should accept jurisdiction and vacate Wardens citation because the Order from which it derives is transparently invalid.

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The California Supreme Court has endorsed the transparent invalidity doctrine in cases involving collateral challenges to contempt citations resulting from court orders that unduly burden speech. In re Berry, 68 Cal. 2d 137, 436 P.2d 273 (1968). The court in Berry concluded that, as in Phoenix Newspapers, that a violation of an order in excess of the jurisdiction of the issuing court cannot produce a valid judgment of contempt. Id. at 147, 436 P.2d at 280. Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, which recognized yet did not apply the principle of transparent invalidity, is distinguishable on its facts. That case arose when a group of protestors involved in the Southern civil rights movement marched in the city of Birmingham, despite an Alabama court injunction prohibiting them from doing so. The protestors argued that the injunction was vague and overbroad, and that it unduly restricted speech. Id. at 311. The protestors also argued that the Birmingham parade ordinance they were accused of violating, by marching without a permit, was enforced in an arbitrary and discriminatory manner. Id. The Court did not reach the constitutionality of the injunction or the application of the parade ordinance against them, instead finding that the protestors were not able to disregard a law they felt unconstitutional. Id. at 321. The Court held: This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners' impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.

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Id. Four Justices dissented in three separate opinions, noting the absurdity of the Court upholding an injunction it knew to be unconstitutional simply because of a perceived disregard for the civilizing hand of law. Id. at 327 (Brennan, J., dissenting). The dissent noted that the protestors were in essentially the same position as persons who challenge the constitutionality of a statute by violating it, and then defend the ensuing criminal prosecution on constitutional grounds. Id. The dissenters reminded the Court that challengers to the constitutionality of a statute frequently are forced to violate the statute in order to challenge it in court. Id. Although the majority had serious questions about the constitutionality of the injunction, the dissenters would find it patently unconstitutional on its face. Id. at 328. They recalled that Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. Id. at 328-29 (quoting Hague v. C.I.O., 307 U.S. 496, 515-16 (1939). The temporary injunction, in the powerful arguments of the dissenters, actually promoted disrespect for the law: I do not believe that giving this Court's seal of approval to such a gross misuse of the judicial process is likely to lead to greater respect for the law any more than it is likely to lead to greater protection for First Amendment freedoms. Such injunctions, so long discredited as weapons against concerted labor activities, have now been given
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new life by this Court as weapons against the exercise of First Amendment freedoms. Respect for the courts and for judicial process was not increased by the history of the labor injunction. Id. at 331. The free speech principles of the dissent resonate strongly to this day. Few remember the reasoning of the majority, but protestors of every political persuasion today echo the principles stated in Walkers dissent. The majority in Walker spoke briefly about transparent invalidity, only to find that the injunction and parade regulations were not transparently invalid. Id. at 316. The Court stated simply that this is not a case where the injunction was transparently invalid or had only a frivolous pretense to invalidity, recognizing the citys interest in regulating the free passage of traffic and commerce. Id. (citations omitted). By contrast, the singular restriction in the Order placed on Warden makes no effort to regulate the greater flow of city traffic. It seeks to punish and silence Warden alone. For this reason, the Order is transparently invalid. State v. Chavez, 123 Ariz. 538, 601 P.2d 301 is similarly distinguishable. Both Chavez and Walker dealt with mass demonstrations initiated by well-known public figures in the labor and civil rights movement; Cesar Chavez in Chavez, and Martin Luther King, Jr. in Walker. Chavez involved acts of violence, including threats, rock throwing, intimidation, and a general atmosphere of fear. Chavez at 306, 123 Ariz. 538. Chavez, like Walker, was justified on grounds that the injunctions at issue protected the public from unrest and violence. Id. And like Walker, the court in Chavez raised the idea of transparent invalidity only to dismiss it. We endorse the precepts set forth by the United States Supreme Court in the Walker

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decision and, therefore, do not reach the question of whether the preliminary injunction before us was unlawful on its face. Id. In Wardens case, there was no violence and no mass demonstrations, no inhibiting of orderly traffic or city commerce. The justifications for the broad injunctions found in Walker and Chavez are plainly absent. Further, by filing his special action in this Court, Warden is taking up the invitation at the end of Chavez: The doors of this court were open. If they thought the injunction was too broad, they could have easily sought review by appeal or by special action as an alternate remedy to willful disobedience. Id. Here, Warden stands in the same position as the protestors in Walker and the journalist in Phoenix Newspapers. The Order places a clearly overbroad restriction on Wardens right to speak freely. By restricting Wardens access to an unambiguously public forum, the Order preemptively violated Wardens rights under the First Amendment of the United States Constitution, as well as Article 2, 6 of the Arizona Constitution. The text of Article 2, 6 protects free speech even more explicitly than the First Amendment. In other contexts, Arizona courts have interpreted this to mean that the state guarantee of rights carries greater reach than its federal equivalent. See, e.g., State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549 (1986); State v. Bolt, 142 Ariz. 260, 264 (1984) (finding that the Arizona Constitution protects the privacy of the home, and the right to privacy within, even more assiduously than the federal Constitution). Indeed, the Courts decision in Phoenix Newspapers was premised solely on the protections of the Arizona Constitution. Phoenix. at 259, 418 P.2d at 596. So even if this Court were to find Walkers reasoning persuasive on the

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issue of federal law, the dictates of Arizona make it clear that no contempt citation may follow from an unconstitutional restriction on speech. D. This Court should accept jurisdiction and grant relief because Warden effectively exhausted his remedies at the trial court level when he invited Judge Berning by letter to modify and/or remove the Order on December 22, 2008. Even if this Court finds that the more appropriate method for Warden to challenge the Order would have been to ask the trial court to modify the Order, Warden in fact made attempts to challenge this order before he was cited for violating it. He challenged the Order by submitting his letter to Judge Berning on December 22, 2008. See Exhibit 3. Warden clearly notified Judge Berning of the free speech problem posed by the Order in his letter. He identified the three cases in which the restrictions in the Order were at issue. See Exhibit 3 at 1. He stated that 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. Id. Then, he asked the court to avoid a constitutional crisis by immediately rescinding the current orders which now prevent my speech. Exhibit 3 at 2. The fact that Wardens letter did not take the form of a formal pleading is of no moment. At the time the letter was written, Warden was unrepresented. Perhaps if Warden was represented at the time, an attorney might have counseled him to challenge the Order formally, by written motion. This Court should not hold Wardens lack of legal sophistication as a means to deny him his right of free speech. The Supreme Court has excused errors in filing and formality by pro se litigants whenever a legitimate constitutional

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question is raised. See, e.g., Gideon v. Wainright, 372 U.S. 335 (1963) (Court considered, and granted, Gideons certiorari petition despite it being written on Florida Department of Corrections correspondence paper).2 (continued next page)

III. CONCLUSION For the reasons stated herein, Respondent Roy Warden urges the Superior Court to accept jurisdiction in this matter and grant relief by ordering the dismissal of Tucson City Court No. CR9006068. RESPECTFULLY SUBMITTED THIS _____ DAY OF AUGUST, 2011. MANCH LAW FIRM PLLC _____________________ Eric S. Manch Attorney for Petitioner

Gideon, coincidentally, was represented at oral argument at the Supreme Court bar by Abe Fortas, who would later become a justice himself and join the dissenters in Walker v. City of Birmingham, cited supra.
2

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IV.

CERTIFICATE OF SERVICE I, Eric S. Manch, counsel for Plaintiff/Petitioner, filed this Complaint and Petition

for Special Action on Monday, August 29, 2011, with the Clerk of the Superior Court of the State of Arizona in Pima County. One copy of this Complaint and Petition was delivered, along with a Notice of Filing of the Special Action and Request for Waiver of Service of Summons, was hand-delivered this date, August 29, 2011 to the Hon. Thomas X. Berning, Respondent or his representative. One copy of this Complaint and Petition was delivered, along with a Notice of Filing of the Special Action and Request for Waiver of Service of Summons, was hand-delivered this date, August 29, 2011, to William B. Mills, Assistant City Attorney, Tucson City Attorneys Office or his representative, on behalf of the State of Arizona, Real Party in Interest. RESPECTFULLY SUBMITTED THIS _____ DAY OF AUGUST, 2011. MANCH LAW FIRM PLLC ______________________ Eric S. Manch Attorney for Petitioner

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