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Roy Warden, Publisher Common Sense II 1015 W. Prince Ave. #131-182 Tucson Arizona 85705 roywarden@hotmail.com TUCSON MUNICIPAL COURT THE CITY OF TUCSON Plaintiff/Appellee, Vs ROY WARDEN, Defendant/Appellant ) Case No. CR 9006068 ) ) ) ) APPELLANT REPLY TO STATE’S ) RESPONSE ) ) ) ) ORAL ARGUMENT REQUESTED ) The

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COMES NOW Appellant, Roy Warden, with his Reply to the State’s Response in the above captioned case. STATEMENT OF FACTS On January 4, 2013, prior to the submission of his Appellant ‘s Memorandum on January 11, 2013, Appellant filed a “Motion to Extend Time to File Appellate Brief and For Order Waiving For CD Transcript of Hearing,” the Honorable Thomas Berning Presiding. Appellant served a copy of his Motion upon the Office of the Tucson City Prosecutor. In pertinent part, Appellant’s Motion reminded the Court, and the Prosecutor, that October 29, 2012 (1) Appellant was indigent, and (2) on the trial Court had issued a verbal order

waiving all fees associated with perfecting his appeal and waived all fees associated with reviewing relevant Court files.

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4.

Appellant’s Motion informed the Court, and the Prosecutor, that in a letter dated November 20, 2012 the Appeals Clerk “Kelly” had informed Appellant he was required to pay a $17.00 fee before he could receive a copy of the CD of the October 29, 2012 trial. (Motion to Extend Time, etc. Exhibit One)

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Subsequent to his receipt of the November 20, 2012 letter from the Appeals Clerk, Appellant contacted the Appeals Clerk’s office and was further informed that spite of his status as “indigent,” without the payment of requisite fees, or a written Order of the Court, he would not be able to review court files or receive a copy of the CD transcript of the trial proceedings on October 29, 2012.

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Thus: On January 04, 2013 this Court, and the Tucson City Prosecutor, were on notice that Appellant had not yet been afforded the opportunity to review the trial testimony and court rulings, or inferentially, the court files of the underlying cases which inspired Appellant’s conviction for “Interference with a Judicial Proceeding,” which form the basis for this appeal.

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Subsequently; on January 09, 2013, Appellant sent an email to Colleen Nolan, the Judicial Assistant for the Honorable Judge Thomas Berning who, for more than 3 years, had presided over all matters connected to the above caption case, and inquired whether or not the Court would grant the relief requested prior to the “due date” for Appellant’s Appellate Brief, January 11, 2013, when, as a practical matter, the issue would become moot.

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Almost immediately Judicial Assistant Nolan replied, informing Appellant: “Judge ‘Rajas’ (Riojas?) will be answering your motion. I will forward your email to Judge Riojas and hope it helps. ...Please let me know if I can do

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anything else as I don't believe Judge Riojas has a specific judicial assistant.”
9.

Therefore; without the benefit of the relief requested, access to the court file, access to the CD transcript of the trial proceedings, access to the court files of the underlying cases which inspired the State to prosecute Appellant in the above captioned action, Appellant worked “from memory” and submitted his Appellant Brief on the date it was due, January 11, 2013.

10. Subsequently: on January 22, 2013 Appellant made further in-

quiry of Judicial Assistant Nolan: “I appologize for troubling you AGAIN on this issue. However; Did Judge Riojas replace Judge Berning and substitute HIMSELF in Judge Berning's place, on a permanent basis, on THIS case, or was Judge Riojas assumption of duties merely an accomodadion on the basis of Judge Berning's (hopefully) temporary indisposition? Since Judge Riojas has NOT YET responded to the Motion, and my Right of Appeal is at stake, I need to know as soon as possible, so I may respond accordingly. (emphasis added) Yours truly, RW”
11. Several hours later Appellant received this reply from Judicial

Assistant Nolan: “I just checked file tracking and it looks like Judge Riojas still has your file...later today I will go to his office and see what I can find out for you..... and its no trouble at all.”
12. On or about February 15, 2013 Appellant received the State’s

“Appellee’s Responsive Memorandum.”

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13. As of the date of this filing, Appellant had NOT YET received the

benefit of a ruling on his Motion to Extend Time, or access to the documents requested therein.
14. The emails referred to above in paragraphs 7- 11 may be found

in Exhibit One. LEGAL ARGUMENT
15. The facts and legal arguments set forth in Defendant’s Motion to

Dismiss, Defendant’s Petition to Superior Court for Special Action, Defendant’s Reply to State’s Response and Appellant’s Memorandum filed January 11, 2013, are fully incorporated herein.
I. APPELLEE’S MOTION TO STRIKE 16. Having intentionally denied Appellant access to the record, the

State, disingenuously, now moves to strike the Appellant Memorandum for various reasons, including Appellant’s alleged failure to make proper reference to the very record he has been denied.
17. Appellant respectfully submits: the Appellant’s Memorandum,

filed January 11, 2013, sets forth sufficient references to the record and sufficient facts to support the legal issues which form the basis for this appeal.
18. However; Appellees content otherwise. In the interests of justice

and clarity, Appellant respectfully submits to this Court: How may Appellant make substantial reference to the record when access to the record has clearly been denied to him, as set forth in paragraphs 1-14 above?

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II.

THE LOWER COURTS IMPROPERLY IMPOSED UNCONSTITUTIONAL CONDITIONS OF RELEASE

19. Appellee’s contend that A.R.S. 13-3967(D), A.R.S. 13-3967(D)(2)

A.R.S. 13-3967(G) (miraculously) authorize Tucson Municipal Court Judges to capriciously suspend a public speaker’s First Amendment Rights, for an indeterminate length of time, on a case-by-case basis; something the U.S. Supreme Court has ruled is absolutely forbidden.
20. To support this contention they argue that A.R.S. 13-3967(D):

“…specifically authorizes a court to place restricttions upon a subject released on bail. Those restrictions include restrictions on the person’s travel. And by extension, area restrictions.” (emphasis added)
21. Regarding “area restrictions,” this contention is nonsense. Ap-

pellant invites the Court to read A.R.S. 13-3967 in its entirety. None of the various classifications of lawfully imposed restricttions, for alleged misdemeanor offenses, set forth in A.R.S. 133967 suggest ANY possible restriction to a political speaker’s right to assemble on the public square for the purpose of engaging in political discourse.
22. Moreover; as suggested by A.R.S. 13-3967(D)(6), the purpose of

ANY “conditions of release” is to “assure appearance as required,” not to impose unconstitutional area restrictions.
23. Finally; regarding Appellant’s right to challenge unconstitution-

al conditions of release, the State cites A.R.S. 13-3967(G) which, in pertinent part provides:

“(T)he defendant shall 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.”

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24. Appellant respectfully submits: The distance between a political

activist’s Right of Appeal, in which his First Amendment rights are maintained until the matter is fully litigated in the higher courts, and the State’s contention that a political activist, stripped of First Amendment Rights, must, hat in hand, wander from court to court to kiss the ring of a local City Court Judge, who is no more than a creature of the very government which is the target of the political activist’s speech, is as wide as the Grand Canyon is long.
25. Appellant further respectfully submits: there is a vast, unbridge-

able distance between the temporary imposition of appealable restrictions which may be lawfully placed upon First Amendment Rights, as provided by Walker v. City of Birmingham, 388 U.S. 307 (1967) and State v Chavez, 123 Ariz. 538 (1979) (where rights are maintained while the issue is litigated), and the suspension of rights for an indeterminate period of time (in the present case more than nine months) awaiting the restoration of rights by capricious and arbitrary judicial favor. State V. Kessler Does Not Support State:
26. To support the contention that the conditions of release im-

posed upon Appellant in the case at bar, which altogether suspended Appellant’s Right of Public Speech “…within 1,000 feet of 33 N. Stone,” was a constitutionally acceptable abridgment of Appellant’s Right of Free Speech, the State cites State v Kessler, 199 Ariz. 83, which may be thoroughly distinguished from the facts in the present case, as set forth below:
a.

In Kessler, the Appellant was placed on probation after pleading guilty to a class six felony--aggravated assault— essentially to “beat the rap” for a charge of sexual abuse arising from an incident in which he rubbed the breasts

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of a thirteen-year-old girl. Thus; Kessler presented an issue of violation of probation after sentencing for a felony vs Appellant’s condition of release from custody after arrest for an alleged misdemeanor offense arising out of Appellants political conduct. (See Statement of Facts. Appellant Memorandum) Kessler’s imposed conditions of probation included Regulation Number 1 of Yuma County’s Special Regulations of Probation for Sex Offenders, providing that Kessler not “initiate, establish, or maintain contact…with any child (under the age of 18) nor attempt to do so…except under circumstances approved in advance and in writing by the probation officer.” In Kessler, the Appellant violated the terms of probation when Kessler, unsupervised and in violation of his probation officer’s explicit edict, went on a overnight camping trip with a church group, including children, and, again unsupervised, he accompanied children into an enclosed toilet facility, “pushed” them on swings, and spent the night in a tent with a 13 year old child. Regarding the suspension of Kessler’s asserted “right to assemble” unsupervised, with children at a church function, the Kessler Court ruled: “To remain at liberty under a suspended sentence is not a matter of right but a matter of grace." State v. Crowder, 103 Ariz. 264, 265, 440 P.2d 29, 30 (1968). As a result, a probationer is subject to restriction of his constitutional rights to a greater degree than would be permissible outside the criminal-justice system. State v. Montgomery, 115 Ariz. 583, 584, 566 P.2d 1329.”

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e.

Appellant respectfully submits: The State does have a legitimate interest in protecting children from the predations of sexual offenders by the imposition of “no contact with children” conditions of probation upon conviction for a felony; however the state maintains no legitimate interest in proscribing political speech as a condition of release from custody for an alleged misdemeanor violations arising out of political speech, especially when that speech is critical of the State, especially when the underlying case is dismissed, as happened in this case.

26. Finally; on page 6 of their Responsive Memorandum Appellee’s

state: “(T)he Defendant had years to challenge the order, or at least to seek a clarification as to what activities might be proscribed by the geographic limits. Curiously he has not yet done so until this appeal, despite having the right to raise this issue with the lower court.”
27. The State’s assertion, set forth in paragraph 26, is a bald faced

lie and misrepresentation to this Court. For more than 4 years, ever since Appellant’s several arrests which led to the imposition of the Conditions of Release herein objected to, Appellant repeatedly raised the issue with the trial judge, as set forth in paragraphs 22-27 of Appellant’s Memorandum, submitted on January 11, 2013.
III. APPELLANT’S CASE IS DISTINGUISHED FROM WALKER AND CHAVEZ 28. In the Appellant’s Memorandum, pages 7-11, Appellant distin-

guished the case at bar from Walker v. City of Birmingham, 388 U.S. 307 (1967) and State v Chavez, 123 Ariz. 538 (1979). In the

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C. B. A.

interests of judicial economy Appellant offers no further argument here. CONCLUSION Appellant respectfully submits: the State’s Responsive Memorandum sets forth a virtual torrent of assertions and irrelevant prior procedures, inter-mixed with irrelevant facts, specious argument, and down-right misrepresentations, with the sole intent to obfuscate, dissemble, confuse this Court (and any future reviewing court), and thus avoid responding to two of the central issues of this Appeal: (1) Does the Constitution of the United States Permit a Tucson Municipal Court Judge to Issue, Sua Sponte, Non Appealable Conditions of Release Which Suspend Rights Secured by the First Amendment, and (2) Does A.R.S. 13-2810 Require Citizens to Obey an Unlawful Order, Process or Other Mandate of a Court, in Spite of the Clear, Unambiguous Language of the Statute Which Says Otherwise. PRAYER In the interests of justice Appellant prays this Court to: Deny Appellee’s Request to Strike and set this matter for Oral Argument before the Pima County Superior Court, or, in the alternative; Order the State to provide Appellant access to the record of the present case, and the underlying cases, so Appellant may complete his record, and; Provide Appellant such other relief the Court deems proper. RESPECTFULLY SUBMITTED this 25th day of February 2013. By ______________________ Roy Warden, Appellant

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Original filed with the Court on February 25, 2013. I hereby certify that on February 25, 2013, I served the attached document by mail, and by email, on the following: William F. Mills Principal Assistant Prosecuting Attorney P.O. Box 27210 Tucson, Arizona 85726-7210 William.mills@tucsonaz.gov By ______________________ Roy Warden, Appellant

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EXHIBIT ONE

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Roy Warden <roywarden@hotmail.com> 1/9/2013 11:25 AM January 09, 2013 Colleen Nolan Judicial Assistant Judge Thomas Berning Tucson City Court Case No. CR 9006068 Dear Ms. Nolan; Last week I filed a Motion to Extend time in the above captioned case, and I was wondering: has Judge Berning granted the relief sought or does he plan on ruling on the motion prior to the close of business, Friday, January 11, 2013 when the Appellant Brief is due and the issue becomes moot? Thank you for your courtesy, Roy Warden

Date: Wed, 9 Jan 2013 11:37:58 -0700 From: Colleen.Nolan@tucsonaz.gov To: roywarden@hotmail.com Subject: Re: RULING ON MOTION TO EXTEND TIME, WAIVE FEES Mr Warden, Judge Rajas will be answering your motion. Which means I wont know when he does respond as it will not come past my desk. I will forward your email to Judge Riojas and hope it helps....Please let me know if I can do anything else as I don't believe Judge Riojas has a specific judicial assistant.

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From:Roy Warden (roywarden@hotmail.com) Sent: Tue 1/22/13 11:19 AM To: COLLEEN NOLAN (colleen.nolan@tucsonaz.gov) Dear Ms. Nolan: I appologize for troubling you AGAIN on this issue. However; Did Judge Riojas replace Judge Berning and substitute HIMSELF in Judge Berning's place, on a permanent basis, on THIS case, or was Judge Riojas assumption of duties merely an accomodadion on the basis of Judge Berning's (hopefully) temporary indisposition? Since Judge Riojas has NOT YET responded to the Motion, and my Right of Appeal is at stake, I need to know as soon as possible, so I may respond accordingly. Yours truly, RW

Date: Tue, 22 Jan 2013 11:22:27 -0700 From: Colleen.Nolan@tucsonaz.gov To: roywarden@hotmail.com Subject: RE: RULING ON MOTION TO EXTEND TIME, WAIVE FEES I just checked file tracking and it looks like Judge Riojas still has your file...later today I will go to his office and see what I can find out for you..... and its no trouble at all.

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