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Roy Warden, Publisher Common Sense II 1015 W. Prince Ave. #131-182 Tucson Arizona 85705 roywarden@hotmail.com IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF PIMA THE CITY OF TUCSON Plaintiff/Appellee, Vs ROY WARDEN, Defendant/Appellant ) No. CR 20130747-001 ) ) Tucson City Court Cause No. ) CR 9006068 ) ) REPLY MEMORANDUM ) ) ORAL ARGUMENT REQUESTED ) The The ) The Hon. Javier Chon-Lopez )

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COMES NOW the Appellant in the above captioned case, Roy Warden, in compliance with the Order of this Court dated March 01, 2013, as set forth below:
I.

THE LOWER COURTS IMPROPERLY IMPOSED UNCONSTITUTIONAL CONDITIONS OF RELEASE (N.B. For the purpose of this appeal Appellant challenges an unconstitutional Condition of Release Order which exceeds limitations set forth on such orders by A.R.S. 13-3967, not an unconstitutionally written Order of Protection, as stated in the Order dated March 1, 2013)

1.

Appellee’s contend that Arizona’s “Conditions of Release” statute, A.R.S. 13-3967, authorizes 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

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basis; something the U.S. Supreme Court has ruled is absolutely forbidden1. To support this contention they argue that A.R.S. 13-3967(D): “…specifically authorizes a court to place restrictions upon a subject released on bail. Those restrictions include restrictions on the person’s travel. And by extension, area restrictions.” (Appellee’s Responsive Memorandum 5:12-15, emphasis added)
3.

Appellant respectfully invites the Court to read A.R.S. 13-3967 in its entirety. None of the various classifications of restrictions which the state may lawfully impose as a condition of release for alleged misdemeanor offenses, suggest the court has any power whatsoever to suspend the public’s First Amendment rights. Moreover; as set forth by A.R.S. 13-3967(D)(6), the purpose of any condition of release is to only to “assure appearance as required.” Therefore; as A.R.S. 13-3967 provides, travel restrictions are appropriate. They further the legitimate government interest in assuring appearance of the accused, at trial. However; by no stretch of “good faith” argument imaginable can the government legitimately stand before this court to state: “Since the law authorizes us to take necessary steps to insure a defendant’s appearance at trial, we may also suspend a political speaker’s right to stand on the public square and criticize our policies.” In Fraguso v Fell, 210 Ariz. 427 (App)(2005) the Court set forth the law regarding bail and the provisions of A.R.S.13-3967:

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New York Times Company v United States, 91 S.Ct 2140, 2146, 2147 (1971)

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“Trial court’s 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 person’s appearance.” Fraguso at 429, 434. (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.
8.

Fraqguso 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 oppresssion.” Gusick at 311, 312 State v. Kessler Does Not Support State:

9.

To support their contention that the conditions of release imposed upon Appellant were constitutionally acceptable, the State cites State v Kessler, 199 Ariz. 83.

10. 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 of a thirteen-year-old girl.
11. Thus; Kessler presented an issue of violation of a condition of

probation after sentencing for a felony.
12. Kessler is remarkably distinguished from 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)

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13. Moreover; 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.”
14. In Kessler, after sentencing, 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.
15. Thus; 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.”
16. Appellant respectfully submits: The State has a legitimate in-

terest 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 violation arising out of political speech, especially

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when that speech is critical of the State; especially when the underlying case is dismissed, as happened in this case.
17. 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.”
18. 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.
19. Appellant further respectfully submits: as set forth below, there

is a vast, unbridgeable distance between the temporary imposition of appealable restrictions which may be lawfully placed upon the exercise of 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 all rights are maintained while the issue is litigated), and the suspension of rights for an indeterminate period of time; in the present case Appellant waited for more than nine months before resuming the exercise of his rights, resulting in his arrest which is the subject of this appeal.

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V. THE COLLATERAL BAR RULE DOES NOT PROSCRIBE APPELLANT FROM VIOLATING “TRANSPARENTLY INVALID” ORDERS OF THE COURT2 20. Appellant respectfully submits: By letting stand a lower court’s

ruling, the U.S. Supreme Court, in U.S. v Providence Journal Co., 108 S.Ct 1505-1506 (1988), clarified it’s ruling in Walker regarding “transparently invalid” orders of the court, thus carving out a distinct exception to the collateral bar rule.
21. The relevant facts as set forth in Matter of Providence Journal: A. On November 13, 1985, subsequent to a hearing in U.S.

District Court, the Court issued a temporary injunction against publication of a news story by the Providence Journal; a hearing was set for November 15, 19853. Id at 1345
B. On November 14, 1985 the Providence Journal published

the story in violation of the Court Order, prompting citation for criminal contempt, conviction, and the subsequent appeal. Id at 1345
C. On November 15, 1985 the Court lifted the temporary in-

junction. Id at 1345
22.

The relevant law set forth in Matter of Providence Journal:
D. “A party subject to an order that constitutes a transparently

invalid prior restraint on pure speech may challenge the

U.S. v Providence Journal Co. 108 S.Ct 1505-1506 (1988), letting stand Court of Appeals ruling in Matter of Providence Journal Co., 820 F.2d 1342, 1343
3

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The court delayed the hearing for several days to accommodate the schedules of the attorneys.

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order by violating it.4” Thus; an exception to the collateral bar rule. Id at 1344
E. “Court orders are not sacrosanct; order entered by court

clearly without jurisdiction over contemnors or subject matter is not protected by collateral bar rule.” Id at 1347
F. “Where prior restraint impinges upon right of press to

communicate news and

involves expression in form of

pure speech; i.e., speech not in connection with any conduct, presumption of unconstitutionality is virtually insurmountable.” Id at 1348
G. “Prior restraint issued prior to full and fair hearing with all

attendant procedural protections faces heavy presumption of invalidity, and transparent unconstitutionality of order is made even more patent by absence of such hearing.”
23. Regarding the principles of law, the issues in this case and the

underlying rational for protecting First Amendment liberties the Providence Court said:
H. “In its nearly two centuries of existence, the Supreme Court

has never upheld a prior restraint on pure speech.” Id at 1348, citing New York Times Co v United States, 91 S.Ct. 2140
I.

“The power to censor is the power to regulate the marketplace of ideas, to impoverish both the quantity and the quality of debate, and to restrict the free flow of criticism against the government at all levels.” Id at 1345

J.

If the collateral bar rule did protect transparently invalid court orders, “a court could wield power over parties or matters obviously not within its authority—a concept in-

Matter of Providence Journal Co., 820 F.2d 1342 (1st Cir 1986) (emphasis added)

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consistent with the notion that the judiciary may exercise only those powers entrusted to it by law… Requiring a party subject to such an order to obey or face contempt would give the courts powers far in excess of any authorized by the Constitution or Congress.” Id at 1347
K. “(I)n the instance the court is acting so far in excess of its

authority that it has no right to expect compliance and no interest is protected by requiring compliance.” Id at 1347
L. “The distinction between pure speech and speech involving

conduct clearly distinguishes the order at issue in Walker5 from the order at issue in the instant case.” Id at 1348
M. “Although the Journal arguably had avenues of appellate

relief immediately available to it, we decline to invoke the collateral bar rule because of the Journal’s failure to avail itself of these opportunities. When, as here, the court order is a transparently invalid prior restraint on pure speech, the delay and expense of an appeal is unnecessary.” Id at 1352
24. Regarding the collateral bar rule and Walker v. City of Ber-

mingham, 388 U.S. 307, 314 (1967), the case underlying Matter of Providence Journal, the U. S. Supreme Court said:
N. "An injunction duly issuing out of a court of general juris-

diction 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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Walker v. City of Birmingham, 388 U.S. 307

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25. The Arizona Supreme Court ruled similarly in State v. Chavez,

123 Ariz. 538 (1979).
26. Significantly; the Walker decision requires a court of general

jurisdiction to issue the proscriptive order; here the issuing court was a “no-record” court of “limited jurisdiction.”
27. In Walker the proscriptive order was an injunction, with im-

mediate rights of appeal; here the proscriptive order was a nonappealable “Conditions of Release Order.”
28. In Walker the government, had “a legitimate government in-

terest,” in requesting the proscriptive order, as set forth in New York Times v United States, 403 US 713; here the government’s only “interest” was the “suppression of embarrassing information.”
29. In Walker, the government requested the proscriptive orders;

here a limited jurisdiction court, sua sponte, issued the order without any application from the government.
30. The Walker and Chavez proscriptive orders temporarily banned

conduct—Parading and Picketing, which previously had erupted in violence; here the proscriptive order banned pure speech. Arizona Law On Prior Restraints
31. “The Supreme Court has approved the imposition of prior re-

straints 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
32. 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 deci-

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sion.” (2004)

Dream Palace v County of Maricopa, 384 F.3d 990 CONCLUSION

“The dominant purpose of the First Amendment was to prohibit the widespread practice of government 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 The United States, 91 S.Ct 214o, 2146, 2147 (1971) "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) 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 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. Here the action was brutal.

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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.’ Regarding the explicit limitations set forth in A.R.S. 13-3967; If the legislature had expected the public to submit to any court order, especially one issuing out of a court of limited jurisdiction suspending First Amendment rights, they would have said so. Instead they proscribed the violation of any lawful order. A lawful order means: an order which derives it’s authority from the clear, unambiguous reading of a state statute which grants the court authority to so act. In other words: an order within the jurisdiction of the court to make, in a manner prescribed by law. 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, the free passage of traffic and the prevention of public disorder and violence become important objects of public concern.” Walker at 315, 316 Such also was the case in State v. Chavez, 123 Ariz. 538, where noted labor leader and political activist Cesar Chavez was enjoined from re-joining a violent protest against the presence of Mexican Illegal Aliens who were used by a grower to “bust” a strike orchestrated by Chavez to protect the interests of his Farm Workers Union. However; the state has no legitimate interest in proscribing pure political speech. In the instant case they only did it to avoid public disclosure of embarrassing information, and public excoriation for their “Open Border Policy.”

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C. B. A.

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 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 29th day of March 2013. By ____________________ Roy Warden, Appellant

Original filed with the Court on March 29, 2013. I hereby certify that on March 29, 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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