DECLARATION OF ROY WARDEN IN SUPPORT OF MOTION TO DISQUALIFY JUDGE BURY FOR BIAS IN 11CV 00460 DCB BPV

I Roy Warden, under penalty of perjury, do herein declare, swear and affirm as follows:
1.

I am the Plaintiff in this case, a resident of Tucson Arizona and I have direct personal knowledge of the events to which I testify below.

2.

Ever since 2004 I have been a community activist and the publisher of Common Sense, Common Sense II and Arizona Common Sense, political newsletters sent to more than 1,200 members of the Pima County Bar, numerous public officials, several hundred members of the media, political activist groups, etc.

3.

Numerous

readers

of

my political

newsletters

have

informed me that my common law relationship with Martina Lucas, Plaintiff in Lucas v Sowers, CV 09-123 TUC DCB, and the de-tails of this and previous cases alleging violations of Title 42 Section 1983 I have filed against local public officials, inclu-ding Pima County Legal Defender Isabel Garcia, have been widely known to a significant number of the Pima County Legal Community, including judges, for a number of years.
4.

Significant to the issues raised in my Motion to Disqualify Judge Bury; I have been the target of judicial interference and retaliation in my court actions ever since 2005, when the ACLU and Attorneys David Euchner and Angela Polizzi filed a Title 42, 1983 claim against the Pima County

Superior Court and Pima County Superior Court Judges Fell and Leonardo, 4:05 CV 00020 JCG.
5.

Regarding 4:05 CV 00020 JCG: Prior to April 11, 2005 when the Court granted attorneys Euchner and Polizzis Motion to Withdraw, I filed an affidavit including a letter written to me by attorney Euchner, on March 02, 2005, which stated, in sum and substance, that the Arizona Supreme Court had in-formed Euchner that the Court wanted me to cease writing stories about Pima County Superior Court Judges, or Attorneys Pollizi, Euchner and the ACLU would have to drop my representation, which they did. (Exhibit One) I. JUDGE BURY DEMONSTRATED BIAS AGAINST PLAINTIFF IN WARDEN v PIMA COUNTY LEGAL DEFENDER ISABEL GARCIA, CV 07-664-TUC DCB

6.

On December 13, 2007 I filed a claim in U.S. District Court alleging Pima County Legal Defender and Director of an Open Border Pro Raza advocacy group, Derechos Huma-nos, Isabel Garcia, assisted by members of the media, had engaged in conspiratorial acts with other state actors to violate my constitutional rights, including my right to a fair trial; the Honorable John Roll presiding.

7. 8.

The case was eventually reassigned to Judge Bury. On April 16, 2008 Richard Gonzales, attorney for Defendant Pima County Legal Defender Isabel Garcia, filed a Motion to Dismiss, alleging amongst other things, that Pima County Legal Defender Isabel Garcia was not a state actor.

9.

On May 01, 2008 Judge Bury, on the basis of allegations made by Attorney Gonzales, voided my In forma pauperis status and dismissed my case without (1) permitting me to

answer the Motion to Dismiss, (2) providing me with a state-ment from the Court setting forth my complaints alleged deficiencies, as provided by law, or (3) granting me permis-sion to amend complaint.
10. 11.

Subsequently; on May 29, 2008 I filed a Notice of Appeal. On June 04, 2008 Judge Bury rescinded my in forma pauperis status for purpose of appeal, declaring that my appeal was taken primarily to vex the Defendants, and is therefore not taken in good faith.

12.

On September 10, 2008 the Ninth Circuit Court of Appeals dismissed my appeal for failure to pay the requisite $455.00 filing fees.

13.

In paragraphs 10-21 of my Motion to Disqualify Judge Bury, I set forth specific facts to support the above allegations.

JUDGE BURY FAILED TO REVEAL EXTRA JUDICIAL COMMUNICATION IN LUCAS V SOWERS WHICH CREATED ADDITONAL JUDICIAL BIAS Background:
12.

II.

In early 2006, Martina Lucas asked me for an attorney refer-ral to represent her in a medical malpractice action against a local physician, Dr. Sowers, whose failure to diagnose pneu-monia caused Ms. Lucas loss of vision in her left eye.

13.

I recommended Judge Thomas Zlaket, because I knew Judge Zlaket used to be the Chief Justice of the Arizona Supreme Court.

14.

Ms. Lucas told me her first interview with Judge Zlaket went very well.

15.

Subsequently; I helped Ms. Lucas obtain, review and deliver to Judge Zlaket medical records from Dr. Sowers. For a number of months I observed, and helped document, Ms. Lucas communications with Judge Zlaket. Eventually, I overheard a conversation between Ms. Lucas and Judge Zlaket during which Judge Zlaket expressed his concern that one of Ms. Lucas treating physicians, Dr. Lin-coln (who coincidently was a personal friend of Judge Zlaket) was reluctant to testify against Dr. Sowers.

16.

17.

18.

I was present on or about February 07, 2007 when Ms. Lucas contacted Judge Zlakets office to inform him she was scheduled for a second surgery to correct problems to the cornea and lens of her damaged left eye.

19.

I overheard Judge. Zlakets assistant greet Ms Lucas very coldly. To the best of my recollections her words were to Ms. Lucas were: After youre surgery youll be causing trouble in the streets again!

20.

Ms. Lucas seemed stunned when she hung up the phone. I immediately understood Judge Zlakets assistant was refer-ring to my political conduct, a subject and a relationship of which, to the best of my knowledge, Ms. Lucas had never spoken to anyone about.

21.

Subsequent to Ms. Lucas surgery and partial recovery I went with Ms. Lucas to meet with Judge Zlaket. During this meeting I responded to Judge. Zlakets observa-tion to Ms. Lucas, I cant take your case because how could anyone know that the pneumonia you had would injure your eye, by stating: I know why youre dropping this case. Its because of me!

22.

23. 24.

Judge Zlaket replied, Who are you? I said; Im the guy standing up to the legal community and the Republicans for engaging in Open Border Policy! Subsequently; Judge. Zlaket ordered me to leave the room. Later Ms. Lucas told me Judge Zlaket said: You will never get justice in this town as long as you have anything to do with Roy Warden!

25.

26.

27.

In the course of the next several months I helped Ms. Lucas contact a number of medical malpractice attorneys; however each time they refused to represent her.

28.

Finally I contacted a reader of Common Sense, a legal professsional, who told me: The words gone out. No attorney in town will take Ms. Lucas case because of her connection to you and your politics.

29.

Eventually; a political contact recommended Mr. Michael Price, who agreed to represent Ms. Lucas in her malpractice case against Dr. Sowers.

30.

When Lucas v Sowers was filed in Federal Court, the case was assigned to the Honorable David Bury. On several occasions I expressed my concern to Mr. Price regarding Judge Bury presiding over Ms. Lucas case, stating in sum and substance: Judge Bury will retaliate against Ms. Lucas if he ever finds out her connection to me.

31.

32.

On these occasions, in sum and substance, Mr. Price assured me: You dont have anything to worry about in this regard, Roy. Judge Bury and I are good friends socially. Were fellow Republicans.

33.

The basis of my concern was the shocking abusive and unlawful manner in which Judge Bury rescinded my in forma pauperis status in Warden v Garcia thus ending my case and subsequent appeal to the Ninth Circuit, for Judge Burys fail-ure to (1) allow me to answer Defendant Garcias Motion to Dismiss, (2) issue an order setting forth my complaints de-ficiencies, as provided by law and (3) grant me permission to amend complaint.

34.

Subsequently; Mr. Price failed altogether to prepare Ms. Lucas for her deposition. Ms. Lucas returned home from their prep meeting with a foot high stack of documents, and said: Mr. Price told me to read these documents and prepare myself.

35.

36. 37.

I read the documents and prepared Ms. Lucas accordingly. When Ms. Lucas returned home from her deposition she told me Mr. Price was very pleased with her testimony. Mr. Price said, based on my testimony and his research I should get a $800,000.00 settlement offer.

38.

However;

I became alarmed when Mr. Price failed

altogether to answer Defendant Sowers Motion for Summary Judgment, even though the Court gave him several continuances.
39.

Eventually the Court set a date for the parties to meet with the Federal Court Mediator to discuss settlement. When Ms. Lucas returned from the first settlement meeting she was absolutely dismayed when she told me: Mr. Price told me to take their offer of $25,000.00 He told me: You better take it, because I can guarantee if we go to trial you will get nothing!

40.

41.

Ms: Lucas shouted at me: Theyre doing this to me because of you Roy! Its your fault! Just like Judge Zlaket said, Youll never get justice in this town as long as you have anything to do with Roy Warden!

42.

Subsequently; Ms. Lucas accepted a settlement amount pro-viding her with $39,000; I gave her an additional sum to pay off her mortgage.

Lucas v. Sowers: An Additional Basis For Judge Burys Bias:

43.

On or about February 17, 2010 Ms. Lucas had filed in Tucson City Court Case # CR-9139247, a sworn affidavit in which she disclosed (1) her long term emotional problems due to the catastrophic loss of vision in her left eye, which was the underlying subject matter inspiring Lucas v Sowers, (2) that her pain had often been expressed by emotional outburst and long periods of depression, (3) that some of the medications prescribed to treat (her) pain and depress-sion have had undesirable side effects, which have resulted (in) dramatic mood swings and domestic strife, and (4) that the incident which occurred at her residence for which I was being prosecuted for alleged domestic violence and distur-bing the peace was inspired by an adverse reaction to her medications.

44.

Immediately subsequent to filing this document with the Court, I observed Ms. Lucas send a copy to Mr. Price. Therefore; on or about April 17, 2013 when I reviewed the Lucas v Sowers case file I was astonished to find the Stipula-ted Motion to Extend Discovery, Doc. 26, in which Mr. Price declared:

45.

In early July, 2010, Plaintiff (Lucas) sustained an alleged multi-day episode of domestic violence which resulted in such injuries as to require hospitalization and a substantial period of recuperation before being able to resume normal activities. The alleged perpetrator is facing multiple felony charges.
45.

Charles Davis, the government attorney in Lucas v Sowers, further repeated the sum and substance of Mr. Prices claims in document 32.

46.

Significant to the veracity of Mr. Prices allegations to Judge Bury in Lucas v Sowers: Mr. Price was in possession of the Declaration of Martina Lucas, signed on February 17, 2010, and thus fully informed as to the true facts regarding Ms. Lucas violent outbursts when he made this representation to the Court.

47.

Moreover; contrary to Mr. Prices assertion in document 26 of Lucas v Sowers; no felony charges were ever filed against me.

48. 49.

Significantly; at trial the Court found me Not Guilty. Significantly; Ms. Lucas has faced 4 separate counts of domestic violence, including her arrest for the incident Mr. Price alleges occurred in early July 2010.

50.

All charges against Ms. Lucas were eventually dropped, due to her adverse reaction to prescribed medications, as set forth in her Declaration dated February 17, 2010. CONCLUSION In conclusion, Plaintiff herein advises the Court of the fol-

lowing: Plaintiff has shared every pleading and every Court Order in this action, and his previous actions, with the entire reader-ship of Plaintiffs internet newsletter Arizona Common Sense, which includes some 1,200 members of the local bar.

Frankly: there is a growing uneasiness within the Pima County Legal community that this is a political case the Court wants to get rid of. A significant number of readers (including a retired Superior Court Judge) have advised Plaintiff that, as a consequence of the musical chairs played by the Federal Judges who were assigned to this case subsequent to the mysterious departure of Judge Cindy Jorgenson for reasons of conflict of interest (when the Judge, apparently, had no conflict for the nine months she presided over the case, until she had to rule on Plaintiffs Motion for Reconsideration), Plaintiff should review the Rules of Conduct for Federal Judges and take appropriate action. Plaintiff has taken their advice, and now is preparing documents for the Ninth Circuit. In the interim, Plaintiff reminds the Court of the following dicta from Baker v Carr, 369 U.S. 186 (1962): The Courts authority, possessed of neither the purse nor the sword, ultimately rests on sustained public confidence in its moral sanction. Therefore; on the basis of the disclosures I make above and in my Motion to Disqualify Judge Bury, under penalty of perjury, I have a reasonable belief that Judge David Bury had a deeply rooted, pre-existing bias and disposition against my legal interests, on the basis of my political conduct, his conduct in Warden v Garcia and the fallacious allegations made to him by Attorney Michael Price in Lucas v Sowers, on the date he accepted his appointment to this case. _______________ ___________________

Date

Roy Warden

State of Arizona County of _____________ On this ____day of ____________________, 2013, before me the undersigned Notary Public, personally appeared Roy Warden, known to me to be the individual who executed the foregoing instrument and acknowledged the same to be his free act and deed. My Commission Expires:_______________ ___________________ Notary

Original and one copy filed with the Court on May 10, 2013. I hereby certify that on May 10, 2013, I personally hand served the attached document to the Office of the Tucson City Attorney and by email, on the following: Viola Romero-Wright Principal Assistant Tucson City Attorney Viola.romero@tucsonaz.gov BY: _______________________ Roy Warden, Plaintiff

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