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

ANSWER TO RESPONSE TO PETITIONER’S ANSWER TO MOTION TO DISMISS

Oral Argument Requested

The Honorable Steven Villarreal

COMES NOW THE PETITIONER, Roy Warden, with his Answer to Response to Petitioner’s Answer to Motion to Dismiss, as set forth below: CONSTITUTIONAL ISSUES PRESENTED
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Should this Court deny jurisdiction in a case presenting “serious constitutional issues” as so moved by Respondent?

II III

Is the current rule facially void? Are the proposed changes to the current rule facially constitutional?

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LEGAL ARGUMENT Jurisdiction
1.

Petitioner submits: the explicit language of the following three cases require Arizona appellate courts to accept jurisdiction in special actions raising serious constitutional concerns: Dombey v Phoenix Newspapers, Inc.,150 Ariz. 476 (1986), Dream Palace v County of Maricopa, 384 F.3d 990 (9th Cir. 2004) and Citizen Publishing Co. v Miller, 210 Ariz. 513 (2005).

2.

In Dombey, where an individual sued a newspaper for defamation, the Court cited the U.S. Supreme Court: “(The First Amendment…safeguards a freedom which is the ‘matrix, the indispensible condition of nearly every other freedom.’ ” (citation omitted) Dombey at 482.

3.

Moreover; the Dombey Court stated: “Instances in which we exercise…discretion include issues of statewide importance, those of constitutional dimension or situations in which the public interest is better served by having the issue considered rather than deferred. “(W)e have substantial doubt whether the Constitution would permit us to avoid consideration of first amendment issues even if we were so disposed. The United States Supreme Court has consistently held that appellate courts must engage in independent review of ‘constitutional facts’ in order to safeguard first amendment protections.” Dombey at 482.

4.

Regarding Arizona Court’s general discretion to deny jurisdiction in special actions, the Ninth Circuit Court stated: “Were this discretion unbounded, the special action would, or course, provide no guarantee of judicial review on the merits. If, on the other hand, the judge’s ‘discretion’ does not include the ability to dismiss a petition where it is the only route by which the petitioner can bring a constitutional challenge, then the mere use of the term ‘discretion’ will not

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prevent the review from being constitutionally sufficient.” Dream Palace at 1006
5.

Furthermore; in Dream Palace the Court cited U.S. Supreme Court Justice Holmes: “(I)t is plain that a State cannot escape its constitutional obligations by the simple device of denying jurisdiction in such cases to Courts otherwise competent.” Dream Palace at 1006.

6.

In Citizen, the Arizona Supreme Court ignored an otherwise sound policy to deny review of orders refusing to grant summary judgment and accepted jurisdiction “because of the importance of the issue (First Amendment) presented.” Citizen at 515 “There is good reason to depart from this general rule…when a suit raises serious First Amendment concerns…because of the public’s significant first amendment interest…in avoiding a ‘chilling effect’ on the freedom (of speech.)” Citizen at 516

7.

In Citizen the “chilling effect” of First Amendment freedoms cited by the Court was largely theoretical. In the instant case Petitioner, and the public, face suspension of their First Amendment rights before the Mayor and Council whenever the Mayor deems they have uttered words which are “impertinent, personal or slanderous,” irrespective of whether or not the utterance of those words caused actual disturbance or disruption of the proceedings before the Mayor and Council, as required by law1.

8.

And finally: In order to accept jurisdiction in Dombey and Citizen, the Court had to (1) waive important procedural policies designed to promote “comity between courts and…judicial efficiency2”, and (2) weigh the competing interests of protecting the expressive rights

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Norse v. City of Santa Cruz, 629 F.3d 976 (2010) Dombey at 482.
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of powerful corporations vs. the rights of individual litigants seeking legitimate redress for alleged torts. Even though both decisions were couched in lofty constitutional rhetoric, the practical consequence of at least the decision in Citizen was to protect the financial interests of a politically well connected commercial enterprise by denying a citizen his day in court.
9.

In the instant case, the Court (should) face no such difficulties in weighing the right of the people to challenge the rectitude of official policies of government, which is paramount and the core purpose of the First Amendment, vs. the desire of government officials in remaining aloof and beyond public reproach. The Current Rules of Decorum Regulating Speech Before the Mayor and Council Are Facially Over-Broad

10.

Regarding Rules of Decorum and unconstitutional over-breadth, 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…We must respectfully reject the City’s attempt to engage us in doublespeak. Actual disrupttion means actual disruption. It does not mean constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption or imaginary disruption.” Norse v. City of Santa Cruz , 629 F.3d 976 (2010) (emphasis added)

11.

In White v. City of Norwalk, 900 F.2d, 1421 (9th Cir, 1990) 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

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disrupts, disturbs or otherwise impedes the orderly conduct of any Council meeting shall, at the discretion of the presiding officer…be barred from further audience before the Council on that meeting.” White at 1424. (emphasis added.)
12.

In White the Court accepted the government’s contention that “the ordinance does not permit discipline, removal or punishment of a person who merely utters a ‘personal, impertinent, slanderous or profane’ remark…removal 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.

13.

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

14.

In its present form (which, on the basis of proposed extensive revisions Respondent Mayor Walkup apparently concedes is constitutionally infirm), the present Rules of Decorum do not require public disruption to actually result from the public utterance of the proscribed words; the mere utterance of “personal, impertinent or slanderous remarks” as so defined by the Mayor alone, is sufficient for removal.

15.

The present Rules of Decorum entirely omit the following requisite qualifying phrase: “…or engages in any other disorderly conduct which disrupts, disturbs or otherwise impedes the orderly conduct of any Council meeting.

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16.

Moreover; regarding the meaning of “disruption” and the allegedly “disruptive” act committed by the attendee in Norse, Chief Judge Kozinski concluded: “It would have remained entirely unnoticed, had a city councilman not interrupted the proceedings to take umbrage... 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. “‘Listener’s reaction to speech is not a content-neutral basis for regulation…Speech cannot be…punished 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 doesn’t like.” Norse at 979. (internal citations omitted.)

17.

Petitioner respectfully submits: the current Rules of Decorum are facially void, because they authorize the Tucson City Mayor, on the basis of viewpoint alone, to arbitrarily and capriciously remove any speaker who utters words the Mayor considers “personal, impertinent or slanderous,” 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. The Proposed Revisions to the Rules of Decorum Magnify the Constitutional Insult

13.

In relevant part, the proposed new Rules of Decorum provide as follows: “Each person who addresses the Mayor and Council during any item…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
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person attending a meeting shall engage in conduct that disrupts, disturbs or otherwise impedes the orderly conduct of the meeting.” (emphasis added)
14.

By adding the phrase “(i)n addition” to separate the several categories of proscribed conduct, Respondent removes any doubt or ambiguity that might be found in the current rule, and makes his intent to silence all public criticism perfectly clear; 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, they want the authority to remove speakers who make “remarks that are profane, obscene or defamatory…or remarks or gestures that are threatening towards any person,” irrespective of whether or not the words create or result in public disruption, as required by the law set forth in White and Norse.

14.

Petitioner respectfully submits: if they are implemented, the proposed changes to the Rules of Decorum will violate the law protecting public speech, as set forth in White and Norse, and therefore will be facially void. CONCLUSION Petitioner once read that Chief Justice of the Supreme Court William

Rehnquist would interrupt an attorney during oral argument to ask: “You say that’s 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 if they proscribe speech and conduct which actually leads to public disruption impeding the orderly conduct of any Council meeting.”

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Additionally, the Norse Court made clear: the Mayor and Council members themselves may not create disruption simply because their dignity has been challenged. Petitioner respectfully submits: neither the current Rules of Decorum nor the proposed Rules of Decorum now under review meet the objective criteria set forth in White and Norse. It is abundantly clear that both the current rules and the proposed rules grant the Mayor the arbitrary and capricious authority to block speech he alone deems “personal, impertinent or slanderous” or “profane, obscene, defamatory or threatening,” irrespective of disruption. Petitioner is troubled that the Tucson Mayor and Council did not take the opportunity presented by this action to simply amend the rules with the following requisite phrase: “…or engages in any other disorderly conduct which disrupts, disturbs or otherwise impedes the orderly conduct of any Council meeting.” Petitioner respectfully submits: the Mayor and Council did not make this simple amendment required by law because, speaking frankly, they don’t want their power to eject a member of the public whose speech challenges the rectitude of their official action to be curtailed by any court decision or judicial process; a point Petitioner will elaborate upon during oral argument. RESPECTFULLY SUBMITTED this 17th day of January 2012. BY Copy mailed January 17, 2012 to: Viola Romero-Wright Assistant City Attorney P.O. Box 27210 Tucson AZ. 85726-7210 ____________________ Roy Warden, Petitioner whether or not they cause

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