IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF PIMA ROY WARDEN, Petitioner, v. MAYOR BOB WALKUP, for the City of Tucson, Respondent, and THE CITY OF TUCSON, Real Party at Interest) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Superior Court No. C20117276 Oral Argument Requested The Honorable Steven Villarreal PETITION FOR SPECIAL ACTION TO THE PIMA COUNTY SUPERIOR COURT Roy Warden, PetitionerIn Forma Pauperis 1015 W. Prince Road #131-182 Tucson Arizona 85705 [email protected]1
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“Citizens attending meetings shall observe rules of propriety, decorum, and good conduct. Any personmaking personal, impertinent or slanderous remarks, or
becomes boisterous while addressing the governing body,may be removed by the Sgt. at Arms as directed by theChairman.”
4. On September 07, 2011 during the Call to the Audience portion
of the Tucson City Council Meeting1, Petitioner, upon invitation,
addressed the Mayor and Council regarding a federal jury verdict
in 2006, finding three Tucson City Officials employed in their
official capacities, including Tucson City Manager Richard
Miranda while employed in his former capacity as Assistant
Tucson City Police Chief, had (1) engaged in acts of First
Amendment Retaliation, (2) had inflicted emotional distress on
the Plaintiffs, and (3) the jury awarded Petitioners $900,000.00 to
compensate them for their consequential damages, including
$500,000.00 for emotional distress.
5. Moreover; on September 07, 2011 Petitioner informed the Mayor
and Council that, in additional to the consequential damages, in
1 The Tucson City Council is a limited public forum, in which public commentaryand conduct is subject to reasonable time, place and manner regulation; however,commentary on matters of public concern may not be limited on the basis of content or viewpoint. Sabelko v City of Phoenix, 846 F.Supp. 822 (Ariz. 1994),citing Forsyth County v. Nationalist Movement, 112 S.Ct. 2395 (1992)
he was about to read the week before prior to his arrest, to wit:
Arizona’s standards for granting damages for emotional distress2.
13. On September 20, 2011, in light of the 2006 federal jury’s verdict
as set forth above, Petitioner applied these words to question
Richard Miranda’s fitness to hold public office as Tucson City
Manager.
14. On September 20, 2011, subsequent to Petitioner’s presentation,
Mayor Walkup made additional commentary, said Petitioner’s
“personal attack” was in violation of “The Rule”, and stated in
sum and substance, that at future council meetings he would
arrest anyone who continued to address the council in a similar
fashion. (Exhibit Three)
JURISDICTION
15. Regarding this Court’s jurisdiction and the Rules of Procedure for
Special Actions, Rule 3 (b), provides relief when “…the
defendant has proceeded or is threatening to proceed without or
in excess of jurisdiction or legal authority,” and (c) when a
2 To grant damages for emotional distress, the finder of fact must determine the
defendant’s “acts were so outrageous in character, and so extreme in degree, as togo beyond all possible bounds of decency, and to be regarded as atrocious andutterly intolerable in a civilized community.” Revised Arizona Jury Instructions(Civil) 4th for the Intentional Infliction of Emotional Distress.
interpretations of the First Amendment, there is practically universal
agreement that a major purpose of that Amendment was to protect the
free discussion of governmental affairs.” Arizona Right to Life at
1008, citing Boos.
And finally, In the modern police state…
“the greatest evil is not done in those sordid dens of evilDickens loved to paint (or in the dank cellars of theLubiyanka by thugs named Beria), but…in clear, carpeted,warmed, well lighted offices, by quiet men with whitecollars and cut fingernails and smooth shaven cheeks whodo not need to raise their voices.” --C.S. Lewis
Petitioner respectfully submits; Respondent Tucson City Mayor
Bob Walkup, in the name of The City of Tucson and the “Civility
Accord,” now employs an overbroad and vaguely worded rule, and
the police, to silence public dissent regarding the present operation of
Tucson City government.
Moreover; in the name of “civility” Respondent Mayor Walkup
expects the people to refrain from offering robust commentary when
they find one of their officials, on the basis of Cronyism and other self
a. Strike down as unconstitutionally infirm the present “Mayor
and Council Meetings Public Participation” rule, herein referred
to as “The Rule,”
b. Order Respondent Mayor Walkup to pay all Petitioner’s Filing
Fees and Court Costs, and
c. Provide such additional relief the Court deems proper.
RESPECTFULLY SUBMITTED this 12th day of October 2011.
BY____________________
Roy Warden, Petitioner
State of ArizonaCounty of _____________
On this ____day of ____________________, 2011, before methe undersigned Notary Public, personally appeared Roy Warden,known to me to be the individual who executed the foregoinginstrument and acknowledged the same to be his free act and deed.
My Commission Expires:_______________ ___________________ Notary
“Good afternoon. Roy Warden, I do live here in Tucson.
You know, it’s really amazing, there are a lot of peopleout here, a lot of colorful people, got up and had somegeneral things to say about public corruption, and howunhappy they are with city government, and so forth,how they are unhappy with some of you folks up here.
Uh, everyone’s got an opinion. But sometime you canmove away from opinion down to specifics, move awayfrom generalities down to cold, hard facts.
And when it comes to opinions, or attitudes, towardsRichard Miranda over here, Deputy City Manager, it’snot a matter of opinion.
You see: the verdict is in.
The verdict was found, by, over in federal court, by Ibelieve 8 or 9 or 10, jurors I’m not sure how many siton a federal jury.
In 2006 they sat for three weeks.
Everyday they listened to testimony how RichardMiranda, former Chief Smith, Assistant Chief Ochoa,lied, cheated and stole the livelihood from a Tucson
citizen who had performed admirably for many yearson behalf of the police department.
Lied, cheated, and stealed (sic).
And the jury looked at him straight in the face for threeweeks, listened to his own testimony, and by the timethe case was over it was kind of surprising, because,one of the important things for lawyers is to quantifydamages: how much money was actually lost.
How do you quantify that: sometimes it’s easy,sometimes it’s not so easy.
This case it was pretty difficult.
And, so the lawyer gets up there and says, ‘You know?I don’t know what to tell you to give.’
Look to your heart.
Look to what they did, look to the way they lied to you
on the stand, look to the way they acted on behalf of,of, Gilmartin, the Plaintiff, and make your mind up.’
Boy, it took them less than half a day!
And they came back with 2.7 million dollars, actually2.9 million dollars: nine hundred thousand dollars owedby the City of Tucson and 2 million dollars in punitivedamages owed personally by him, Smith and Ochoa.
Punitive damages are not paid by municipalities, bylaw, they are paid by individuals.
Yet, old Mikey Rankin here, went together, this lawyerof the year you guys were clapping for, four or fivemonths ago, won an award, put together a slick littledeal by which the people, the taxpayers of the City of
Tucson here, paid seven hundred thousand dollars,between five hundred and seven hundred thousanddollars, of those punitive damages.
Put together the deal, documents are in place, trialtranscripts are over there in, actually upstairs at theClerk’s Office.
I read every page of it, you people should read it, it’s
an astonishing document.
Because it begs the question: When the people of Tucson speak through a verdict after listening totestimony for three weeks, and they…
Mayor Walkup:
“We’re all finished. Thank you very much…”
Roy Warden:
“…say he’s a liar and a scumbag, how do you guys getoff hiring him?”
also with regards to public hearings…and its called ‘Decorum’ and how we treat each other and how we…really, around the country, asking everybody to getback to the original intent of call to the audience and
public hearings.
In January of this year I submitted to the Council of Mayors in Washington DC what we call the “CivilityAccord.”
The “Civility Accord” says it’s time for us to starttreating each other with dignity and respect andunderstanding and decorum.
There’s been about 250 mayors around the countrythat’s said ‘Now, it’s time for us to get back to how wereally treat each other.’
That represents about 43 million people, uh, from agovernance standpoint, uh, implementing within citycouncil meetings, respect for each other.
So there is an impact on “Call to the Audience”, that weare going to allow people to talk about things that wedisagree on, but we want to really get back to cityissues.
We like to, on Call to the Audience, to have people tellus what’s happening in our city, so we can get bettergovern the actions of the council.
But we’re not going to tolerate any longer any personalattacks on any individuals of the council or the citystaff.
It’s just inappropriate. So these are some changes thatwe’re implementing, uh, starting tonight.
I’ve asked the City Attorney if he would, lead, uh, read
a ‘Statement of Decorum.’”
City Attorney Mike Rankin:
“Mr. Mayor and members of the Council:
There are existing Mayor and Council Rules andRegulations for participation of the public in the Mayorand Council meetings.
Uh, and it reads as follows:
‘Citizens attending meetings shall observerules of propriety, decorum, and goodconduct. Any person making personal,impertinent or slanderous remarks, orbecomes boisterous while addressing thegoverning body, may be removed by the Sgt.
at Arms as directed by the Chairman.’
So those are your existing rules, uh, that have been inplace for many, many years. And that’s what theMayor is referring to.” Mayor Walkup:
“Let have, Uh, let’s start ‘Call to the Audience.’
I do have two cards. So at this time we will have ‘Callto the Audience.’
Be make sure you have read the information that’s onback of these cards.
Be mindful of what I’ve just indicated are going to bethe rules of ‘Call to the Audience.’ And with that let’sstart with Keith Van Hannigan.
(Skip to Roy Warden)
Mayor Walkup:
“Roy Warden.”
Roy Warden
“Good Evening. Roy Warden, Tucson Arizona.
Now, you know it really is astonishing to me. TheArizona Constitution says it so clearly, so compellingly, ‘the purpose of government is to protect the individualrights of the people.’
But you, Mr. Mayor, have turned that upside down. Andbasically you’ve restated it such as, ‘the purpose of thepeople is to submit to the unlawful dictates of thegovernment.’
You’ve assumed this power upon yourself.
You’ve assumed the power to overturn hundreds of years of first amendment law.
You should read the Terminillo Case, because it statesthe kind of language which is very appropriate, veryangry but very appropriate, in public debate and inaddressing people like you.
I know the comments last week made by Mr. Kozachikwere directed at me.
I thought, ‘this is really astonishing. A couple of yearsago he’s a citizen. Now he’s a member of government,and he’s taken over the meeting, and he says you’renot going to talk in a certain way.’
He’s attempting, and he probably has, chilled publicdebate on these issues.
And you think you’re going to get away with it.
You’re angry because I’ve called Miranda here…”
MAYOR WALKUP:
“Whup, Whup…Now you’re in, now you’re into here…personal…”
(Raising his voice and referring to U.S. District CourtJudge Frank Zapata’s instructions to the Gilmartin Juryregarding the punitive damage standard for Arizona)
And before that verdict was read, or, or rendered, the jury had to consider this, regarding the conduct of Richard Miranda:
If they were to reach a verdict on emotional damages,which they did, they had to find that Mr. Miranda’s actswere “so outrageous in character and so extreme indegree as to go beyond all possible bounds of decency,and to be regarded as atrocious and utterly intolerablein a civilized community.”
That’s law.
Those are the legal standards that jury had to considerbefore they rendered a verdict on emotional damagesand held him and two other public officials liable for$500.000.00 in that particular aspect of the case, of the verdict, in emotional damages.
“Outrageous conduct.”
“Utterly intolerable in a civilized community.”
That’s the type of behavior he engaged in. That’s thetype of behavior that the jury found he engaged in, andI’m sure he didn’t raise his voice when he did thethings he did.
I’m sure he was quite calm about it. And you’re lookingat the clock Mr. Mayor. I will be done.
You got to ask yourself this: If the public hasexpectations, ah, of government, how can you justifyyour employment of Mr. Miranda when citizens of thiscommunity have rendered such a verdict?