Roy Warden, Petitioner

1015 W. Prince Road

#131-182
Tucson Arizona 85705
(520) 300-4596
roywarden@cox.net

IN THE SUPREME COURT

OF THE STATE OF ARIZONA

) Arizona Supreme Court

ROY WARDEN, )
) No. CV-09-0387 PR
Petitioner, )
) Court of Appeals
)
v. ) Division 2
) No. 2CA-SA2009-0076
)
HON. EUGENE HAYS, Judge of the )
Tucson City Court; HON. MITCHELL )) Pima County Superior Court
EISENBERG, Judge of the Tucson City ) No. CR 20083441
Court, and the ARIZONA COURT OF )
) Tucson City Court
APPEALS, DIVISION 2 )
) No. CR 7030208
Respondents, )
)
) REPLY TO STATE’S RESPONSE
and ) TO PETITION FOR REVIEW
)
)
STATE OF ARIZONA, )
)
)
Real Party in Interest. )

Petitioner now replies to the State’s Response to his Petition for

Review in the sincere belief the State has mischaracterized the facts, sub-

mitted a critical document (Exhibit 4) from an entirely different case in order

to prejudice the Court, and has misstated the law, as set forth below:

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I. THE STATE HAS SUBMITED A DOCUMENT FROM AN EN-
TIRELY DIFFERENT CASE

1. On page 3, line 26 of the State’s Response, the State references Exhi-

bit 4, which the State represents to be Petitioner’s Appellant Memor-

andum to the Pima County Superior Court (Tucson City Court #CR

7030208) in the case now before the Court.

2. However; State’s Exhibit 4 is clearly captioned as an Appellant Mem-

orandum Petitioner submitted in an entirely different case, (Tucson

City Court #CR 7055909).

3. Petitioner’s Appellant Memorandum to the Pima County Superior

Court in CR 7055909 references harsh rhetoric Petitioner used in

street demonstrations protesting Tucson City Open Border Policy and

Tucson City Judges.

4. Petitioner submits: State’s Exhibit 4 is intended to prejudice the Court

and obfuscate the singular issue now before the Court which is: did

the appellate court abuse it’s discretion in denying jurisdiction to hear

Petitioner’s case contrary to the law as set forth in 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) which requires Arizona appellate courts

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 to accept jurisdiction in special actions raising “serious First Amend-

ment concerns,” even if the constitutional issue wasn’t first presented

to the lower courts, unless the issue was expressly waived.

II. THE STATE HAS MISCITED THE LAW REGARDING PETI-

TIONER’S RIGHT TO APPEAL AS PER A.R.S 22-375:

5. On page 5 of State’s Response, the state begins a convoluted argu-

ment which intertwines misstated facts and several contentions, the

primary one which seems to be: the Court of Appeals was justified in

refusing jurisdiction in Petitioner’s Special Action because “a special

action is not available ‘where there is an equally plain, speedy and

adequate remedy by appeal.’” (States’ Response, page 5, line 24-page

8, line 5)

6. However; A.R.S. 22-375, (B.) in pertinent part, provides:

“Except as provided in this section, there shall be no appeal from

the judgment of the superior court given in an action appealed
from a justice of the peace or a police court.”

7. Moreover; in State v Bolan, 187 Ariz. 159 the Court stated:

“Court of Appeals’ jurisdiction over a case that originated in mu-

nicipal court and was appealed to superior court, challenging con-
stitutionality of a statute, is limited to reviewing only statute’s
facial validity; Court cannot examine statute’s application to an
individual defendant, and therefore, if statute is found valid on its
face, Court’s Review must end.”

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8. And finally; in City of Tucson v. Grezaffi (App. Div. 2 2001) 23 P.3d

675 the Court again stated the law:

“An appeal from a superior court’s final judgment in an action

appealed from a municipal court strictly limits the Court of
Appeals’ review to the facial validity of the ordinance at issue,
and the Court of Appeals’ jurisdiction does not extend to
examining the application of the ordinance to an individual de-
fendant.”

9. Thus; the uncontestable fact and rule of law is simple: the Superior

Court’s ratification of Petitioner’s conviction in Tucson Municipal

Court ended Petitioner’s right of appeal. From that point forward

Petitioner’s only remedy was to proceed under the procedures provi-

ded by Special Action.

IV. PETITIONER PROCEEDED BY SPECIAL ACTION TO AD-

DRESS THE DEFENDANTS’ ABUSE OF DISCRETION AND
SENTENCE, WHICH EXCEEDED THEIR JURISDICTION

10. Rule 3 of Rules of Procedure for Special Actions limit the questions

Petitioners may raise to (1) whether the defendants’ (in this case

Tucson City Court Judges Hays and Eisenberg) determinations were

arbitrary and capricious or an abuse of discretion and (2) whether the

defendants had proceeded, or were threatening to proceed, without or

in excess of jurisdiction or legal authority.

11. Petitioner’s Special Action accordingly raised (1) abuse of discretion

issues regarding the defendants’ unconstitutional use of Arizona’s

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 Disturbing the Peace and Making Threats and Intimidation Statutes to

stop Petitioner’s political demonstrations, and Defendant Judge Hays’

capricious refusal to allow Petitioner to introduce evidence and testi-

mony critical to his defense, and (2) excess of jurisdiction issues

inspired by Defendant Judge Eisenberg issuing a sentence which

prevents Petitioner from “speak(ing) within 1,000 feet of any public

demonstration,” effectively suspending Petitioner’s rights under the

First Amendment.

IV. THE STATE FALSELY CLAIMS PETITIONER NOW SEEKS

“PIECEMEAL REVIEW”

12. On page 7 of their Response the State sets forth the general pro-

cedural rule which, quite properly, discourages “…endless, piece-

meal review (which) burdens the litigants and courts with prolonged

and costly procedures.” Piner v. Superior Court, 192, Ariz. 182, 184.

13. A closer review of the State’s Piner citation reveals the following:

“We do not favor accepting special action jurisdiction to review

the propriety of interlocutory orders and pretrial rulings, such as
orders granting or denying partial summary judgment or
denying summary judgment…We take that position because trial
court rulings often reach us without a full factual record and
because al lowing endless, piecemeal review burdens the litigants
and courts with prolonged and costly procedures. Were we to
always consider these actions we would frustrate the expeditious
resolution of claims, unnecessarily increase both appellate court
case-load and interfere with the trial judge, thus giving appellate

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 priority to those cases handled by the most litigious of counsel.”
Piner at 184 (emphasis added)

14. In the instant case Petitioner does not seek a “review of interlocutory

orders and pretrial rulings” nor is the present Court “without a full

factual record” as the trial has long since concluded and the record is

now complete.

15. Moreover; as recently as 2004 in Citizen v. Miller, 210 Ariz. 513 the

Court stated the relevant law regarding “piecemeal” review:

“There is good reason for the Supreme Court to depart from the
general policy of declining jurisdiction when relief by special
action is sought to obtain review of orders denying motions to
dismiss when a suit raises serious First Amendment concerns.”
Citizen at 513, 516. (emphasis added)

16. Petitioner submits: no author could present a suit raising more

“serious First Amendment concerns” than the instant case, where the

Tucson City Court has altogether suspended Petitioner’s First

Amendment rights.

V. THE SUPREME COURT MUST CONSIDER NEW CONSTI-

TUTIONAL ISSUES UNLESS THEY WERE EXPRESSLY
WAIVED.

17. On page 4 of their Response the State argues that (somehow) Peti-

tioner failed to properly raise his constitutional issues to the Superior

Court, and (falsely) presents Exhibit 4 (which is Petitioner’s Appel-

lant brief from an entirely different case) to support its contention.

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18. However; regarding the Supreme Courts obligation to review cases

concerning “serious First Amendment concerns,” the Court, in Dom-

bey v. Phoenix Newspapers, Inc., 150 Ariz. 476 stated:

“(T)he constitutional protection which [plaintiff] contends that

[defendant] has waived safeguards a freedom which is the ‘matrix,
the indispensible condition, or nearly every other form of free-
dom.’

“(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 con-
sistently held that appellate courts must engage in independent
review of ‘constitutional facts’ in order to safeguard first amend-
ment protections.” Dombey at 482 (internal citations omitted.)

“We believe that the Constitution tips the scales in favor of free
speech and compels this court to consider all issues, both factual
and legal, which bear upon the constitutional privileges
accorded by the first amendment and article 2, § 6 of the
Arizona Constitution, unless the issues have been intentionally
and clearly waived by the parties.” Dombey at 482, 483.
(emphasis added)

19. Petitioner has never waived any of his constitutional issues. There-

fore; even though the State argues Petitioner failed to present his con-

stitutional issues to the Superior Court, which Petitioner submits is

factually incorrect, this Court is bound by law to rule upon Peti-

tioner’s Petition for Review on the merits, as expressly provided by

the Court in Dombey.

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VI. CONCLUSION

Petitioner herein submits his Reply to the State’s Response to his

Petition for Review in the sincere belief the State has misstated the law

regarding Petitioner’s appellant rights, and has (erroneously) submitted

Exhibit 4—an Appellant Memorandum from an entirely different case—

to support the State’s contention Petitioner did not adequately present his

constitutional issues to the Superior Court. However; as Petitioner sets

forth in his Petition for Review and above, Arizona Appellate Courts are

required by law to accept jurisdiction in cases setting forth “serious First

Amendment concerns” unless those issues have been expressly waived,

as set forth by the Arizona Supreme Court in Dombey v. Phoenix

Newspapers, Inc., 150 Ariz. 476.

RESPECTFULLY SUBMITTED this 07th day of February 2010.

BY
_______________________
Roy Warden, Petitioner

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 CERTIFICATE OF COMPLIANCE

I Roy Warden, Petitioner in this Reply to the State’s Response to

Petition for Review, do herein Declare, Swear and Affirm that this document

was prepared in compliance with all the Rules of the Court, the Rules of

Procedure for Special Actions, the rules regarding Petitions for Review to

the Arizona Supreme Court, etc., including the following:

1. This document was prepared in Microsoft Word, using a double line

spaced, proportionally spaced typeface, 14 Point Times New

Roman.

2. The total number of words used, except those excluded as provided

by Ariz. R. Crim. P. Rule 31.12 and 31.13, is 1,468.

RESPECTFULLY SUBMITTED this 07th day of February 2010.

BY

__________________________
Roy Warden, Petitioner

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 CERTIFICATE OF EMAIL SERVICE

I Roy Warden, Petitioner in the above captioned Reply to the State’s

Response to Petition for Review, do herein Declare, Swear and Affirm as

follows:

1. On February 07, 2010 I completed Email Service by sending a copy

of my Petition for Review, including a copy of this Certificate of

Email Service, to:

William Mills,
Tucson City Attorney
william.mills@tucsonaz.gov

RESPECTFULLY SUBMITTED this 07th day of February 2010.

_____________________
Roy Warden

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