Roy Warden, Publisher

Arizona Common Sense

6502 E. Golf Links Rd., #129
Tucson Arizona 85720
roywarden@hotmail.com

IN THE JUSTICE COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

STATE OF ARIZONA

CR-16-612627-MI

v.

DEFENDANTS REPLY TO STATES

RESPONSE TO MOTION TO STAY
PROCEEDINGS AND AFFIDAVIT OF
ROY WARDEN

ROY WARDEN

THE HON. PAUL SIMON

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COMES NOW ROY WARDEN, Defendant in the above captioned ac-

tion, with his Reply to the States Response to Motion to Stay Proceedings,

and affidavit, as set forth below:

PRELIMINARY STATEMENT

Police encourage1 a Useful Idiot2, or Agent Provocateur, to assault De-

fendant at Justice for LaVoy Finicum Rally; then Pima County engages in a

malicious prosecution in retaliation, or pay-back, for Defendants decade

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Tucson Police have a custom and practice of encouraging acts of violence by

those who counter-protest opponents of Tucson City Open Border Policy:
https://www.scribd.com/doc/27166024/AFFIDAVIT-OF-KATHY-MCKEE

Useful Idiot, a term which describes alleged victim Cody Whitaker, is attributed
to Vladimir Lenin, and refers to those who become unwitting tools of the state.

long exposure of Pima County Open Border Policy3, a federal suit Defendant

filed in 2005 naming Pima County Superior Court Judges Leonardo and Fell

as Defendants, and an article4 Defendant distributed on April 17, 2016 exco-

riating Pima County Court Judge Sara Simmons.

AFFIDAVIT OF ROY WARDEN

I Roy Warden, Defendant in the above action, do herein declare, swear

and affirm as follows:

1.

I am a political activist; ever since 20055 Ive engaged in aggressive,

non-partisan, political activism against the corruption of our local po-

litical and governmental institutions.

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2.

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On January 24, 2005, with the temporary assistance of the ACLU, I

filed suit in U.S. District Court against the Pima County Superior

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Pima County Officials have aided and abetted, enticed and invited, or otherwise
encouraged the illegal entry of impoverished Mexican citizens for economic and
political exploitation.

Witches, Neo Nazis and Pimps, and Pima County Superior Court Judge Sara Simmons.
https://www.scribd.com/doc/309131239/witches-neo-nazis-pimpsand-pima-county-superior-court-judge-sara-simmons

In 2005 Defendant helped draft a lawsuit filed in Mergard v City of Tucson, which
challenged the administrative connection of the Tucson City Water and Trash
services and the cutting off off of water for failure to pay the Garbage Collection fee, forcing the City of Tucson to disconnect the two departments and to
discontinue the policy in 2006. See: http://tucson.com/news/local/govt-andpolitics/article_023f10ab-92bf-549e-8c6d-f46b07380c09.html?mode=story

Court and Superior Court Judges Leonardo and Fell6 for their uncon-

stitutional use of an internal court policy7 (which forbad court em-

ployees from posting solicitations for sale on administrative court

bulletin boards), to arrest me handing out a political pamphlet on the

front steps of the Pima County Courthouse critical of a sweetheart,

no time plea bargain in State v Walter, in which TPD Officer Ken

Walter pled guilty for using a TPD computer to solicit sexual favors

from underage girls8.

3.

On April 10, 2006 I entered Armory Park, Tucson Arizona, with a

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small group of Protect the Border activists, referred to in the local

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press as Border Guardians, shouted Viva Zapata in support of an

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ongoing Mexican revolution, spoke out against Pima County Open

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Border Policy & Pro-Raza racism, and set fire to a Mexican Flag

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in protest of the policy of the Mexican government to encourage

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their poor to illegally enter the United States of America to earn and

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send home remittance money9, which presently is the largest

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source of foreign exchange to the Mexican economy.

Warden v. Hoffman, Leonardo and Fell, action number 4:05-cv-00020 JCG: See:
https://www.scribd.com/doc/313055636/WARDEN-v-HOFFMAN-FIRSTAMENDED-COMPLAINT

Court Policy 902 https://www.scribd.com/doc/313177332/PIMA-COUNTYCOURT-POLICY-902

http://tucsoncitizen.com/morgue2/2003/12/05/11093-police-cop-often-loggedon-at-work-to-lure-teen/
Presently in excess of 15 billion dollars a year.

4.

Since 2006 Ive published more than 300 articles; most of them crit-

ical of Tucson City and Pima County Open Border Policy10, and the

unlawful practices of local courts.

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Moreover; In Warden v Miranda, 14:14-cv-02050, now pending in

U.S. District Court, Ive secured a default judgment against Former

Pima County Legal Defender Isabel Garcia in her capacity as Direc-

tor of her front organization Tucson May 1st Coalition for Immi-

grant and Worker Rights.

6. On April 16, 2016 I published an article titled From Witches, Pimps,

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and Pima County Judge Sara Simmons to Shawna Forde, Neo Nazis

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and Red Necked Thugs: Everyone Seems to Hate the First Amend-

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ment.
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On April 17, 2016 I sent this article to 2,500 recipients of my inter-

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net newsletter Arizona Common Sense, including 1,250 members of

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the Pima County Bar.

8.

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This April 17, 2016 article is the document referenced in the original
complaint filed against me in this case.

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Further Affiant Sayeth Not.

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/s/Roy Warden

MEMORANDUM OF POINTS AND AUTHORITIES

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9.

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On August 2, 2016, the same day Pima County Superior Court Judge

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Sara Simmons ruled in action #C20161109, the Pima County Attor-

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ney filed the above captioned criminal case, alleging (1) an act of

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criminal harassment by communication and (2) an criminal violation

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Open Border Policy defined: To aid and abet, entice and invite and to otherwise
encourage the illegal entry of impoverished Mexican citizens for economic and
political exploitation.

of an injunction against harassment by an act of communication, on

or about April 17, 2016, on the same day Plaintiff distributed the

above referenced story to some 2,000 recipients of Arizona Com-

mon Sense.

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10. On August 12, 2016, Defendant filed his Notice of Appeal in action
#C20161109.

11. Division II, in Appellate Court Action #2 CA-CV 2016 0160, has

re-set December 23, 2016 as the due date for Defendants opening

appellate brief.

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12. Significant to the constitutional issues raised: in his Response to

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Motion to Stay (RTMTS) Pima County Prosecutor Maxwell Rid-

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diough states:

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It is a well settled tenet that an order issued by a court

with jurisdiction over the subject matter must be obeyed by
the parties until that order is reversed by orderly and proper
proceedings. (RTMTS; 1:26-2:3)
Notwithstanding Defendants attempt to obtain reversal of
the superior courts rulings in that case, the injunction was
and still remains in full force and effect. (RTMTS; 2:2123)
13. Not so, Mr. Riddiough, not here in Arizona.

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Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257 (1966)

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14. Regarding prior restraint, and significant to the issues Defendant

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presents herein; in Phoenix, where Petitioners intentionally defied a

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preliminary injunction and published news concerning a murder

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trial, the Arizona Supreme Court set forth foundational constitu-

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tional reasons why the publics right to engage in the exercise of

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First Amendment pure political speech rights; to speak, write and

publish, can never be infringed upon, even when the exercise of

those rights might otherwise conflict with a criminal defendants

right to an unbiased jury and a fair trial.

15. In Phoenix the trial judge stated that the reason for the order

(preliminary injunction) was to assure (defendant) Chambers a fair

trial, and that if it is published that I found probable cause * * * it

would be tantamount to everybody reading the paper to believe that

he is already guilty. Phoenix at 258.

16. Nevertheless, in spite of what seems to be a clear conflict between

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the First Amendment right to speak, write and publish and a criminal

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defendants right to an unbiased jury, the Phoenix Court found for

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the appellant newspaper, and furthermore stated:

The words of the Arizona Constitution are too plain for
equivocation. The right of every person to freely speak, write
and publish may not be limitedThere can be no censor appointed to whom the press must apply for prior permission to
publish for(i)t is patent that this right to speak, write and
publish cannot be abused until it is exercised. Id. at 259 (Emphasis added.)

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The language of this provision makes plain it purpose to prevent previous restraints upon publication (and speech) * * *
It has been said that the privilege which is thus protected in
the organic law of the land is almost universally regarded,
not only as highly important, but as being essential to the very
existence and perpetuity of free government. Id. at 259.
(Emphasis added, internal citations omitted.)

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The press (including internet published newsletters like Petitioners Arizona Common Sense) does not simply publish
information about trials but guards against the miscarriage of
justice by subjecting the police, prosecutors and judicial processes to extensive public scrutiny and criticism.11 Id. at

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This is precisely the reason Defendant published the article criticizing Judge Sara

260.

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17. Thus; in Phoenix the Arizona Supreme Court found for the appellant

newspaper and declared (t)he order prohibiting publication and dis-

cussion in this case is violative of Article 2, Section 6 of the Arizona

Constitution, and is void. Id. at 260.

State v Chavez, 123 Ariz. 538 (1979)

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18. In Chavez, the Arizona Appellate Court, while ruling political con-

duct (picketing) was subject to prior restraint, did not overturn

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the Arizona Supreme Court in Phoenix Newspapers and rule that the

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exercise of pure political speech rights was also subject to prior re-

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straint.

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19. In Chavez, after expressing that as a general principle of law that,

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unlike the exercise of pure political speech rights12, (p)icketing

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enjoys no special sanctuary making it immune from judicial action,

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the Appellate Court, drawing heavily from the decision of the U.S.

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Supreme Court in Walker v City of Birmingham, 388 U.S. 307, went

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on to find labor leader Cesar Chavez in contempt for violating a Su-

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perior Court injunction prohibiting all massing, assembling,

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demonstrating or picketing upon or near the properties of G and S

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Produce Company, located in Yuma Arizona. Chavez at 538, 539.

Simmons.
12The U.S. Supreme Court has expressly stated: there shall be no prior restraint of
pure political speech, by injunction or otherwise. New York Times v United
States, 91 S.Ct. 2140, 2142, 2143 (1971).

20. In Walker the conduct proscribed by injunction13 was marching

without a parade permit. Chavez at 541.

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21. In Walker the Court stated with great clarity the following kinds of

First Amendment conduct or related activities which are subject to

prior restraint:
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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22. Thus; the state does have a legitimate interest in regulating the use

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of their streets and other public places. However; the state main-

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tains no such legitimate interest in regulating pure political speech;

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therefore; the Walker Court excluded pure political speech as core

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First Amendment conduct subject to prior restraint.

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23. In Chavez the Court stated: Appellants acknowledge that the State

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may legitimately enjoin non-peaceful conduct connected with a la-

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bor dispute. Chavez at 539.

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24. However; neither has this Defendant, nor has any Court, including

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the Walker and Chavez Courts, conceded or ruled that the State may

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legitimately enjoin the exercise of pure political speech rights, by

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In both Walker and Chavez the proscribing order was an injunction, which, as a
final order of the court, was appealable.

injunction or prior restraint, expressly proscribed by the U.S. Su-

preme Court. New York Times v. United States, 91 S.Ct 2140, 2142,

2143 (1971).

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25. Moreover; the Chavez court cited the Arizona Supreme Court decision in Phoenix Newspapers:
If * * * the act complained of as contemptuous is the violation of an order, decree, or judgment, and the contemnor can
show that the order, decree, or judgment of the court was
without jurisdiction or void for some other reason, he may
not be held in contempt. Chavez at 540. (Emphasis added,
internal citations omitted.)
26. Regarding pure political speech the Chavez Court stated:
As noted above, the newspaper injunction cases have been
the subject of appellate review in other jurisdictions. These
(courts) have generally arrived at the same conclusions as
Arizona in Phoenix Newspapers. Chavez at 542. (Emphasis
added.)

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28. And the conclusions all these courts have arrived at is simply this:

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the exercise of pure speech rights, of speech, the press and publica-

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tion, is not subject to prior restraint.

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Post Conviction There Will Be NO Meaningful Appellate Review

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29. Finally; a stay at this time is the only opportunity this Defendant will

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have for appellate review. Post-conviction, as per A.R.S. 22-375 De-

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fendant would have to proceed by Special Action as he has done

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after three convictions in Tucson Municipal Court in cases which

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raised the same constitutional issues: Three times Defendant has

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requested review and three times the Appellate Court has denied

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jurisdiction and an opportunity for Defendant to be heard.

SUMMARY

This case presents substantial constitutional issues regarding (1) free

speech and de-facto Facebook public forums, (2) the use of A.R.S. 12-1809

to enjoin political speech, now expressly prohibited in Arizona by LaFaro v.

Cahill, 203 Ariz. 482 (2003), (3) the use of A.R.S. 22-375 to deny Defendant

meaningful appellate review, and the use of Arizonas criminal statutes to pro-

scribe the speech of an outspoken political activist who has opposed local gov-

ernment policy for more than a decade.

PRAYER

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In the interests of justice14 and judicial economy, Defendant respectfully

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prays this Court to STAY these proceedings until a final determination has

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been made in #C20161109.

RESPECTFULLY SUBMITTED on November 28, 2016.

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________________
Roy Warden

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On November 28, 2016 I emailed a copy

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of this Reply to: Maxwell Riddiough at

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Maxwell.riddiough@pcao.pima.gov

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All constitutional appellate issues which may arise in THIS case are NOW on the
table in Whitaker v Warden, #2 CA-CV 2016 0160.

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