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Roy Warden, Publisher Common Sense II 1015 West Prince Road #131-182 Tucson Arizona 85705 roywarden@hotmail.com

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF PIMA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Superior Court No. C20117276

ROY WARDEN, Petitioner, v. MAYOR BOB WALKUP, for the City of Tucson, Respondent, and THE CITY OF TUCSON, Real Party at Interest
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RESPONSE TO DEFENDANTS SUPPLEMENT TO MOTION TO DISMISS

The Honorable Steven Villarreal

COMES NOW THE PETITIONER, Roy Warden, pursuant to the Order of this Court dated January 31, 2012, with his Response to Defendants Supplement to Motion to Dismiss, as set forth below: STATEMENT OF FACTS
1.

Regarding this Courts jurisdiction and the Rules of Procedure for Special Actions, Rule 3 (b), provides relief when the defendant has proceeded or is threatening to proceed without or in excess of

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jurisdiction or legal authority, and Rule 3 (c) when a determination was arbitrary and capricious or an abuse of discretion.
2.

On January 24, 2012, in response to Petitioners Special Action filed in Pima County Superior Court on October 12, 2011, the City of Tucson adopted new Rules of Decorum regulating public commentary and conduct during Call to the Audience.

3.

The new rules, in pertinent part, provide as follows: Persons attending meetings shall observe rules of decorum and orderly conductEach person who addresses the Mayor and Council during any item, including a scheduled Call to the Audience, shall do so in an orderly manner and shall not make any remarks that are profane, obscene or defamatory, and shall not make any remarks or gestures that are threatening towards any person. In addition, no speaker or person attending a meeting shall engage in conduct that disrupts or otherwise impedes the orderly conduct of the meeting. (emphasis added) The Chair shall ensure compliance with rules of orderly conduct. If a person addressing the Mayor and Council violates the rules of orderly conduct, the Chair shall first request that the speaker refrain from the improper conduct; if the speaker refuses, the Chair may end the speakers time at the podium. If the speaker refuses to yield the podium after being directed to do so by the chair, the Chair may (i) recess the Meeting for a brief time, and/or (ii) direct a law enforcement officer acting as the Sergeant at Arms to remove the person whose conduct is out of order. ISSUE BEFORE THE COURT Do The New Rules of Decorum Regulating Speech Before the Mayor and Council Grant the Mayor Power to Regulate Speech Which Exceeds His Constitutional Authority?

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LEGAL ARGUMENT
4.

The new Rules of Decorum, unambiguously, set forth two categories of proscribed conduct: (i) words and gestures, and (ii) conduct alone.

5.

By the insertion of the phrase, in addition between these two separate categories, the new rules clearly permit discipline or removal of a public speaker who utters words the Mayor considers to be profane, obscene, defamatory or threatening, or, a public speaker who engages in conduct that disrupts or otherwise impedes the orderly conduct of the meeting.

6.

Hence; either the mere utterance of words, and words alone the Mayor deems objectionable, or the engagement in disruptive behavior, is sufficient grounds for discipline and the removal of a public speaker.

7.

However; regarding Rules of Decorum and unconstitutional overbreadth, the Ninth Circuit has stated as follows: Rules of Decorum are not facially over-broad where they only permit a presiding officer to eject an attendee for actually disturbing or impeding a meeting Norse v. City of Santa Cruz, 629 F.3d 976 (2010) citing their decision in White v. City of Norwalk, 900 F.2d, 1421 (9th Circuit 1990, emphasis added)

8.

In White the Court concluded the following restriction on speech before the Mayor and Council was constitutionally permissible and not facially over-broad: Each person who addresses the Council shall not make personal, slanderous or profane remarks to any member of the Council, staff or general public. Any person who makes such remarks, or who utters loud, threatening, personal or abusive language, or engages in any other disorderly conduct which disrupts, disturbs or otherwise impedes the orderly conduct

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of any Council meeting shall, at the discretion of the presiding officerbe barred from further audience before the Council on that meeting. White at 1424. (emphasis added.)
9.

In White the Court accepted the governments contention that the ordinance does not permit discipline, removal or punishment of a person who merely utters a personal, impertinent, slanderous or profane remarkremoval can only be ordered when someone making a proscribed remark is acting in a way that actually disturbs or impedes the meeting. White at 1424.

10.

Thus: according to White, the mere utterance of proscribed words alone, irrespective of whether or not they are vague or ambiguous, is insufficient grounds for the removal of the public speaker; the speakers words or conduct must actually cause public disruption.

11.

However: the current Tucson Mayor and City Council Rules of Decorum now under review do not require public disruption to result from the utterance of proscribed words; the mere utterance of words the Mayor considers to be profane, obscene, defamatory or threatening, as so defined by the Mayor alone, is sufficient for discipline or removal.

12.

Furthermore; regarding the actual meaning of disruption and the allegedly disruptive act committed by the attendee in Norse1, Chief Judge Kozinski said: We must respectfully reject the Citys attempt to engage us in doublespeak. Actual disruption means actual disruption. It does not mean constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption or imaginary disruption. Norse at 976

13.

And finally, in Norse Chief Judge Kozinski concluded:

The speaker stood and gave the Nazi salute.

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It (the act) would have remained entirely unnoticed had a city councilman not interrupted the proceedings to take umbrage2 and insist that Norse be cast out of the meeting Government officials in America occasionally must tolerate offensive or irritating speech. The Supreme Court long ago explained that in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Listeners reaction to speech is not a content-neutral basis for regulationSpeech cannot bepunished or banned[] simply because it might offend a hostile member of the Santa Cruz City Council. The Council members should have known that the government may never suppress viewpoints it doesnt like. Norse at 979. (internal citations omitted.)
14.

By adding the phrase (i)n addition to separate the several categories of proscribed conduct, Respondent City of Tucson makes perfectly clear their intent to silence public commentary, before the Mayor and Council, challenging the rectitude of official conduct; in addition to their lawful authority to remove any person who disrupts, disturbs or otherwise impedes the orderly conduct of the meeting which Petitioner does not challenge, Respondents continue to assert the authority to remove speakers who make remarks that are profane, obscene or defamatoryor remarks or gestures that are threatening towards any person, irrespective of whether or not the words or gestures create or result in public disruption, as required by the law set forth in White and Norse.

15.

Petitioner respectfully submits: the current Rules of Decorum are just as constitutionally offensive as the previous rules because they authorize the Tucson City Mayor, on the basis of viewpoint alone,

Chief Justice Kozinski refers to the councilmans umbrage as throw(ing) a hissy fit Norse at 979

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to arbitrarily and capriciously remove any speaker who utters words the Mayor considers to be profane, obscene, defamatory or threatening, irrespective of whether or not the utterance of those words causes public disruption, as required by the law set forth by the Ninth Circuit in White and Norse. CONCLUSION Petitioner once read that during oral argument Chief Justice of the Supreme Court William Rehnquist would interrupt an attorney to ask: You say thats what Congress meant. What did Congress say? In White and Norse the Court said what it meant and meant what it said, in essence: Rules regulating speech before the Mayor and Council are facially valid only if they proscribe speech and conduct which actually leads to public disruption impeding the orderly conduct of any Council meeting. Additionally, as the Norse Court made clear: the Mayor and Council members themselves may not create disruption simply because they dont like the viewpoint expressed in public speech. Petitioner respectfully submits: neither the former Rules of Decorum nor the new Rules of Decorum meet the requisite objective criteria set forth in White and Norse. Frankly speaking: Petitioner is troubled that the Tucson Mayor and Council did not take the opportunity presented by this action to simply correct the deficiency of the former rules by inserting the qualifying requisite phrase set forth in White3 or engages in any other disorderly conduct which disrupts, disturbs or otherwise impedes the orderly

White at 1424

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conduct of any Council meeting, after their list of proscribed words, however imprecise those words might be. Since the Mayor and Council are educated folk, guided and directed by the Tucson City Attorney, they cannot now claim ignorance of the law or the meaning of plain English to justify their abject failure to properly amend the former Rules of Decorum. Hence; the reason4 behind their failure to follow the law must lieelsewhere. Petitioner respectfully submits: By pretending to adopt new rules which are just as constitutionally offensive as the old, Respondents have engaged in sleight-of-hand and what the Norse Court referred to as doublespeak. Respondents new rules continue to grant capricious and arbitrary authority to regulate public speech before the Mayor and Council on the basis of viewpoint, an authority repugnant to the foundational concept of liberty here in America, a liberty our forefathers5 paid dearly for by the shedding of their blood, the essential meaning of that liberty set forth with clarity by wise men who wrote the United States Constitution and the Constitution of the State of Arizona, the full, unfettered scope of that liberty

The reason to silence Petitioner clearly lies within the meaning of Petitioners words to the Mayor and Council: they object to implied criticism of their hiring of Richard Miranda as Assistant City Manager, three weeks subsequent to paying 1.7 million dollars in damages to satisfy a 2006 federal jury verdict for 2.9 million dollars, including 2 million dollars in punitive damages, finding Richard Miranda responsible for acts of conspiracy and first amendment retaliation against Dr. Kevin Gilmartin. One of Petitioners distant forbearers was a Lieutenant in the Revolutionary War.
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now set forth and protected by the wisdom and authority of American judges6 and clearly written case law, as cited above. Therefore; Petitioner respectfully calls upon this Court to protect the right of Tucson Citizens to question the rectitude of the official conduct of their government, a right set forth in the First Amendment, and so grant the Petitioner the relief he seeks below. PRAYER Petitioner herein prays this Court to:
a. Strike down as unconstitutionally infirm the new Rules of Decorum

regulating public speech before the Tucson Mayor and Council, or otherwise enjoin the Mayor and Council from enforcing them, and
b. Provide such additional relief the Court deems proper.

RESPECTFULLY SUBMITTED this 13th day of February 2012. BY Copy mailed February 13, 2012 to: Viola Romero-Wright Assistant City Attorney P.O. Box 27210 Tucson AZ. 85726-7210 ____________________ Roy Warden, Petitioner

Several of Petitioners more recent forbearers were gun wearing, horseback riding California Circuit Court Judges in the days of the Wild, Wild West.

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