New Times files a prelude to a lawsuit against Sheriff Joe Arpaio, County Attorney Andy Thomas and a discredited ex-special prosecutor on behalf of its readers and the Constitution

"This is not a decision undertaken lightly," said Michael Lacey, executive editor of Village Voice Media, which owns New Times, and who, along with CEO Larkin, founded the paper. "We are not an organization, and Larkin and I are not individuals, that sue people. It's just not what we do. But I feel like if we don't do something, it's an invitation for this kind of behavior to continue."

The "behavior" to which Lacey referred was particularly chilling: a special prosecutor running amok, issuing overbroad and unconstitutional subpoenas aimed at the reading and browsing habits of citizens; a vendetta by Sheriff Joe Arpaio against New Times and its staff, the arrests of the paper's executives on petty charges in the middle of the night by members of the sheriff's clandestine Selective Enforcement Unit.

"What emerges is one of the most nakedly oppressive, conscience-shocking assaults on a free press by police and prosecutors in U.S. history," observes New Times lawyer Michael Manning in the Notice of Claim.

By law, the notice had to be filed within 180 days of the culmination of the events described here and had to contain a damages amount. New Times is asking for $15 million in damages if the matter is settled before April 15, the end of a 60-day period in which the defendants — Arpaio, Thomas and Wilenchik — must reply. "If New Times is required to pursue litigation, the settlement demand will increase," the notice warns.

Earlier in the day on which Lacey and Larkin were arrested at their homes and bundled off to jail, County Attorney Andrew Thomas' handpicked special prosecutor Dennis Wilenchik essentially demanded that New Times be bankrupted.

Wilenchik had asked Superior Court Judge Anna Baca to impose crushing fines against the paper for daring to publish an October 18 story ("Breathtaking Abuse of the Constitution") about his grand jury subpoenas seeking vast, detailed information about New Times' readers. For this misdemeanor, Wilenchik not only wanted the story's authors, Lacey and Larkin, and their lawyers arrested, he wanted Baca to assess fines of $10,000 for every hour that New Times refused to take the grand jury story off newspaper racks and the Internet. In the course of a year, the fines would have totaled about $90 million.

To get a better handle on the enormity of Wilenchik's demand, consider that New Times bills about $14 million annually, out of which printing, rent, supplies, salaries, benefits, and taxes must be paid.

Wilenchik's gambit was not an aberration. After his appointment as special prosecutor, he continually upped the ante in his extra-constitutional game of brinkmanship. No grand jury was ever impaneled during the affair. Rather, as Lacey observed in a subsequent column ("He Just Doesn't Get It," November 1, 2007), Wilenchik "anointed" himself the grand jury in power-mad defiance of state law. The law holds that a prosecutor must notify the grand jury foreman and the presiding judge within 10 days of issuing any subpoenas.

"Wilenchik did neither," New Times' Notice of Claim states. "The grand jury was nothing more than an empty prop to Wilenchik." Accordingly, it was not the legal system that put the brakes on this rogue prosecutor; it was a public incensed over the news of the Lacey-Larkin arrests. County Attorney Thomas, Wilenchik's former employee at the law firm of Wilenchik & Bartness, grudgingly called a press conference at his office on October 19, the day after the arrests, and fired Wilenchik as special prosecutor.

"We are not going to proceed with this investigation," stated Thomas, before a packed room of reporters. "There is a right way and a wrong way to bring a prosecution and to hold people accountable for their offenses. And what happened here was the wrong way. I do not condone it. I do not defend it. And so it ends today."

Thomas nervously hedged his mea culpa. He would not apologize to New Times, instead insisting that the newspaper apologize to Arpaio for publishing his home address online, even though Arpaio's address remains readily available on government Web sites, such as those of the Maricopa County Recorder's Office and the Arizona Corporation Commission.

Though Thomas fired Wilenchik from handling future criminal matters for the County Attorney's Office, he retained him as counsel in civil matters. As a result, Wilenchik & Bartness continues to rack up county money.