Recent events necessitate a review of the bleak, chilling years not long past, when Maricopa County Sheriff Joe Arpaio and his political ally, ex-County Attorney Andrew Thomas, attempted to rule the Valley like a Third World junta.
Tony Blei
Lacey with reporters after his release from jail.
Related Content
More About
As my colleague Ray Stern first reported online, the Ninth U.S. Circuit Court of Appeals finally ruled in Lacey v. Arpaio, the lawsuit brought by Village Voice Media Executive Editor Michael Lacey and VVM CEO Jim Larkin against Maricopa County, Arpaio, Thomas, Thomas' former special prosecutor, Dennis Wilenchik, and others for the false arrests of New Times' co-founders in 2007.
The 2-1 decision by a three-judge panel was a mixed bag, upholding parts of the lower court's ruling dismissing the case and reversing other parts. The details are complex, but Lacey and Larkin have announced that they will appeal the Ninth Circuit's ruling, seeking redress from a larger panel of the federal appellate court's pool of judges.
"It's not necessarily common," Lacey said of the request for what's referred to as an en banc review. "But it does happen when there's a split [decision], and when there are important issues involved. And we think freedom of the press and the intimidation of the press are important issues."
Lacey and his longtime partner were collared shortly after their October 18, 2007, cover story, "Breathtaking Abuse of the Constitution." The article revealed secret subpoenas from Wilenchik seeking confidential information on visitors to New Times' website, as well as all material related to certain articles critical of the Arpaio-Thomas-Wilenchik axis.
These subpoenas were illegal. No grand jury had been impaneled, and Wilenchik had no authority to issue subpoenas without one.
The story of two newspapermen rounded up in the middle of the night by plainclothes thugs in unmarked cars bearing Mexican plates hit the local and national press like an A-bomb. The resulting conflagration of criticism forced Thomas to drop the entire matter less than 24 hours after Lacey and Larkin had been taken in and booked.
But that was just the beginning of the legal battle.
In 2008, New Times filed a notice of claim with Maricopa County, announcing its intent to sue, asking for $15 million in damages for the unprecedented harassment and malicious prosecution of two members of America's Fourth Estate.
Lawsuits later were filed in state and federal courts that ultimately were heard by District Court Judge Susan R. Bolton, who's now famous for enjoining most of Arizona's breathing-while-brown law, Senate Bill 1070.
Despite the complaint's damning facts, which show that Arpaio, Wilenchik, and Thomas violated the plaintiffs' rights under the U.S. Constitution's First, Fourth, and 14th amendments, Bolton tossed the suit from federal court.
The plaintiffs appealed to the Ninth Circuit, and a panel of three judges responded with the aforementioned ruling.
The 2-1 decision upheld part of Bolton's ruling, finding that Thomas, in his role as prosecutor, enjoyed absolute immunity. This is not surprising, because prosecutorial immunity has been well established by the courts as means of ensuring that prosecutors can freely pursue their duties without worry of civil liability.
Not that Thomas is blameless. Far from it. He appointed his former employer, Wilenchik, a private attorney whose expertise is in mold litigation, to go after New Times for supposedly violating an obscure, never-before-enforced state law preventing Internet publication of the home addresses of law enforcement officers and judges.
The home address at issue was Arpaio's, which appeared in a 2004 column by a former New Times writer. Columnist John Dougherty had been investigating commercial land acquisitions by Arpaio and questioned the propriety of having information about the parcels redacted from public view. Arpaio claimed the redactions were there to preserve the confidentiality of his home address.
Problem was, Arpaio's home address was available online through various sources, including the Maricopa County Recorder's Office and the website for the local Republican Party. Oddly, the law does not prevent a peace officer's address from being published in print, only online.
Following Thomas' election in 2004, Arpaio pressed him to seek charges against New Times' reporters, editors, and publishers.
Thomas had a conflict of interest because New Times had been highly critical of him from jump, so he sent the case to the Pinal County Attorney's Office. But the PCAO declined to press charges and returned the case to Thomas.
Ever obedient to Arpaio's demand for retaliation, Thomas tapped Wilenchik as his special prosecutor in the New Times matter. Thomas proceeded even after his own staff had advised him not to seek criminal charges in the matter.
Wilenchik already was working for Thomas and Arpaio on a number of cases and had earned a reputation as a pugnacious attorney with little countenance for legal niceties.
Without ever appearing before an actual grand jury or notifying presiding Superior Court Judge Anna Baca, Wilenchik issued broad, intrusive subpoenas to New Times. The newspaper sought to have Baca quash the subpoenas. Then while the motion to quash was pending, Wilenchik — through a well-placed intermediary — sought ex parte (private) communication with Baca in an attempt to influence her. Baca called the parties into court and blasted Wilenchik's move as "absolutely inappropriate."
