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IN THE PIMA COUNTY SUPERIOR COURT

THE CITY OF TUCSON Appellee, Vs ROY WARDEN, Appellant, in Pro-Se
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) Lower Court Case No. ) CR 9006068 ) ) ) Oral Argument Requested ) ) ) ) ) )

APPELLANT’S MEMORANDUM

Roy Warden 1015 West Prince Rd. #131-182 Tucson Arizona 85705 (520) 284-0089 roywarden@hotmail.com

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PLEASE TAKE NOTICE that Defendant Roy Warden (hereinafter referred to as Defendant) appeals his conviction for violation of A.R.S. 13-2810 (2) (Interference With a Judicial Proceeding), and who (1) respectfully submits the following Appellate Memorandum and (2) requests Oral Argument in the SUPERIOR COURT, CITY OF TUCSON, COUNTY OF PIMA. PROCEEDURAL HISTORY On January 14, 2009 Defendant, while preparing to exercise his First Amendment Right to speak on matters of political concern, was arrested in Library Square, near the 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 from a previous case, arising out of an incident which occurred during the Tucson Weekly Public Forum on February 08, 2008. Subsequently; the court spent a lengthy period of time securing counsel for Defendant, who is indigent. On August 12, 2012 Defendant’s 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 Defendant’s Conditions of Release. On August 25, 2010 Defendant filed an Affidavit in Support, setting forth additional facts in support of Ms. Hunley’s Motion to Dismiss. Subsequently; Ms. Hunley moved to Cochise County, the Court spent significant time securing Defendant other counsel, and Judge Berning denied Defendant’s Motion to Dismiss.

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On August 29, 2011 Defendant’s 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 he filed a Reply to State’s response. On November 28, 2011 Pima County Superior Court Judge, the Honorable Judge Teresa Godoy, denied jurisdiction on the basis Defendant had (limited) rights of appeal, subsequent to conviction. On October 29, 2012 , subsequent to a Bench Trial in Tucson Municipal Court, the Honorable Thomas Berning presiding, Defendant was found guilty of violation of A.R.S. 13-2810 and fined $285.00, inspiring this appeal. A.R.S 13-2810

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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) STAT EMENT OF FACTS
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Defendant 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. Defendant has spent the last 7 years investigating allegations of malfeasance within the legal and 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

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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. The facts and legal arguments set forth in Defendant’s Motion to Dismiss, Defendant’s Petition to Superior Court for Special Action, and Defendant’s Reply to State’s Response, as set forth in paragraphs 3-6, are fully incorporated herein. Regarding the history of Defendant’s political protests and the state issuing unconstitutional Conditions of Release: on May 03, 2007 Defendant filed a Notice of Appeal challenging the Conditions of Release in CR 6041685, which amongst other things, forbade Defendant from “…com(ing) within 500 feet of any demonstration.” 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 “Orders setting conditions of release are not final orders and are not appealable.” On May 09, 2007 the Tucson City Court granted the state’s Motion to Strike, thus suspending the Tucson Weekly Public Forum and Defendant’s right to engage in expressive conduct until the conclusion of the then pending case. On January 28, 2008 Defendant 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 of the media, etc. announcing his intention to

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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. Immediately subsequent to his rally on February 04, 2008, TPD Officers arrested Defendant 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. The Conditions of Release specifically enjoined Defendant from returning to Library Square and the surrounding sidewalks. Subsequently; Defendant moved the Tucson Weekly Public Forum location across the street to 33 North Stone, in front of the Bank of America Building. On February 16, 2008, subsequent to an incident occurring at the Tucson Weekly Public Forum on several days before, “Pro Raza” Open Border Activist Alan Ward was served an Injunction Against Harassment, and enjoined from having any contact with Defendant. Nevertheless, in spite of Defendant’s pleas to TPD Officers who were in attendance, Alan Ward assaulted Defendant at the February 20, 2008 meeting of the Tucson Weekly Public Forum, requiring Defendant to take minor actions in self defense. Subsequently; TPD Officers arrested Defendant for an alleged assault and booked him into the Pima County Jail. That night Defendant was arraigned by video before Tucson Municipal Court Judge Michael Lex, who issued a “Conditions of Release and Order”

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In pertinent part, Judge Lex’s Order dated forbade Defendant from “go(ing) within 1,000 feet of 33 N Stone.” Facially; the Conditions of Release Order dated February 08, 2008, which proscribed Defendant’s exercise of First Amendment rights within 1,000 feet of the corner of Pennington and Stone, also prohibited Defendant from (1) attending hearings or using the law library at the Pima County Superior Court, (2) accessing data at the Pima County Recorder’s Office Defendant required for his employment, (3) using the Pima County Library, (4) meeting with an attorney with offices at 100 North Stone Defendant had retained for a family member, (5) attending meetings of the Pima County Board of Supervisors, and (6) entering the Tucson Municipal Court to attend his own hearings. (exhibit 1) Subsequently; via oral argument, Defendant brought the issue of facial over-breadth to the attention of presiding Judge Thomas Berning; however, Judge Berning stated, in sum and substance, that absent a written motion, he would not consider the matter. Defendant, who did not have the benefit of appointed counsel for approximately eleven months even though he was indigent and the State was seeking jail time1, 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 Defendant’s right to appointed counsel. One month later, on March 24, 2008 during sentencing for an alleged incident which occurred during a rally on June 03, 2006

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Over the years, numerous Tucson contract attorneys have refused to represent Defendant, citing a “conflict of interest.” Privately they have informed Defendant: “We can’t afford to ‘win’ your case. We’re afraid of retaliation in other cases.”

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in front of the Mexican Consulate, Judge Hays issued a sentencing order which prevented Plaintiff from coming “within 1,000 of any political demonstration,” an order Defendant immediately appealed, (as distinguished from the Defendants in Walker v Birmingham, 87 S.Ct 1824 [1968] and State v Chavez, 123 Ariz. 538 [1979] who declined to exercise their appellate rights), thus preserving his expressive rights, at least as long as Defendant remained outside the limitations set forth in the Order of the Tucson Municipal Court dated February 20, 2008. ISSUE Was the Tucson Municipal Court Non Appealable Condition of Release Order Dated February 08, 2008 Which Suspended Defendant’s First Amendment Rights, A “Lawful Order, Process or Other Mandate of a Court” Within the Meaning of A.R.S. 13-2810? LEGAL ARGUMENT “The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information… “(T)he First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result.” New York Times Company v United States, 91 S.Ct 2140, 2146, 2147 (1971)
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The law regarding prior restraint and the First Amendment took a significant step sideways in Walker v City of Birmingham, 388 U.S. 307, (1967), where, in a bitterly contested case, the U.S. Supreme Court held: “Petitioners could not bypass orderly judi-

cial review of the temporary injunction before disobeying it.” (Emphasis added.)
The Arizona Supreme Court ruled similarly in State v. Chavez, 123 Ariz. 538 (1979).

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Additionally; it must be noted that Petitioners in Walker had failed to even apply for the requisite Parade Permit, as required by law. Moreover; the Petitioners in Walker and Petitioner in Chavez, failed to exercise their right of Appeal, which would have maintained all rights; here Defendant had no appellate rights whatsoever.

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Additional Significant Factual Distinctions Between Defendant’s Cause and its Precedent Cases, Walker and Chavez:
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In Walker and Chavez the issuing Courts were of general jurisdiction; here the issuing Court was of “limited jurisdiction”; In Walker and Chavez the proscriptive orders were injunctions, with immediate rights of appeal; here the proscriptive order was a non-appealable “Conditions of Release Order.” Subsequent to Walker and Chavez, the Ninth Circuit held that prior restraints on free speech “…will be upheld only if they… provide for a prompt decision during which the status quo is maintained and there is the opportunity for a prompt judicial decision.” Dream Palace v County of Maricopa, 384 F.3d 990 (2004) In Walker and Chavez neither represented Defendants, Martin Luther King or Cesar Chavez, attempted to overturn the proscriptive orders by exercise of their right of appeal; here unrepresented Defendant, without any appellate rights, made numerous verbal requests to the trial judge for a significant period of time. In Walker the government, had “a legitimate government interest,” in requesting the proscriptive order, as set forth in New York Times v United States, 403 US 713; here the government’s

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only interest was the “suppression of embarrassing information.” ( page 3 paragraph 10) In Walker, the government requested the proscriptive orders; here a limited jurisdiction court, sua sponte, issued the order without any application from the government. In Chavez, a private property with legitimate interests requested the injunction; here a limited jurisdiction court, sua sponte, issued the order without any application from a private interest. The Walker and Chavez proscriptive orders temporarily banned conduct—Parading and Picketing; here the proscriptive order banned pure speech. Arizona Law On Prior Restraints “The Supreme Court has approved the imposition of prior restraints only when they are accompanied by adequate procedural safeguards against the dangers of censorship through a prompt and final judicial determination” State v Book-Cellar, 139 Ariz. 525 (App) citing Freedman v Maryland, 85 S.Ct. 734 Ninth Circuit on Prior Restraints Prior restraints “…will be upheld only if they provide for a prompt decision during which the status quo is maintained and there is the opportunity for a prompt judicial decision.” Dream Palace v County of Maricopa, 384 F.3d 990 (9th Cir. 2004) CONCLUSION

"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. (emphasis added) Walker at 314

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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 didn’t even bother to apply for an injunction restricting Defendant’s speech; an obedient Tucson Municipal Court Magistrate Judge, in furtherance of the political interests of the Tucson City Council, performed that function for them. Here the Defendant was denied even the appearance of due process; an injunction, the right to appeal and the right to maintain the status quo while the matter was decided, 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 Defendant’s rights, was issued by a creature of the state in classic police-state fashion; at night, in darkness, in the Pima County Jail Video Court with Defendant in orange jumpsuit, handcuffs and leg irons, out of public view; quite literally in the ‘Belly of the Beast.’ Significantly; In Walker the U.S. Supreme court stated:

“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

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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 a court of limited jurisdiction, they would have said so. Instead they proscribed the violation of any lawful order. Moreover; there is a great distinction between political conduct and pure political speech. 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.” Walker (See 10:28-34 above) However; the state has no legitimate interest in proscribing pure political speech; and no case, state or federal, has ever said so. The Arizona Constitution says the purpose of the state is to protect the individual rights of the people. Defendant respectfully submits: Now is the proper time for the Pima County Superior Court to so act. PRAYER For reasons set forth above Defendant respectfully requests the Pima County Superior Court to reverse his conviction for violation of A.R.S. 13-2810(2) Interference with a Judicial Proceeding, and enter a verdict of NOT GUILTY . RESPECTFULLY SUBMITTED this 11th day of January 2013. By ______________________ Roy Warden

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