By John Dickerson
A federal judge has dismissed certain claims in a lawsuit filed by New Times against Maricopa County Attorney Andrew Thomas and Sheriff Joe Arpaio.
Other claims in the complex suit were not dismissed, and New Times has until October 31 to file an amended complaint. Read the judge's ruling here.
The lawsuit alleges that Thomas, Arpaio and a private attorney hired by Thomas as a special prosecutor, Dennis Wilenchik, broke the law and violated the First Amendment rights of New Times founders Jim Larkin and Michael Lacey by having them arrested on the very day they published an article critical of the county attorney's office for issuing broad grand jury subpoenas aimed at obtaining invasive information about New Times journalists and the paper's online readers.
Thomas’ office sought criminal charges against Larkin, Lacey and the paper, as well as millions of dollars in fines.
U.S. District Court Judge Susan Bolton dismissed Thomas entirely as a defendant, granting him immunity as a prosecutor. But Wilenchik -- who was the one who directly attempted to prosecute the paper, as well as Lacey and Larkin for allegedly violating grand jury secrecy with their story -- was not entirely dismissed. Neither was Arpaio.
Judge Bolton, who once represented the Arizona Republic in a lawsuit against New Times when she worked as a private attorney, did not disagree with allegations that Thomas’ grand jury subpoenas were overreaching and possibly malicious. However, she wrote that overreaching subpoenas and Lacey and Larkin's night in jail do not constitute the racketeering and other federal allegations outlined in New Times' complaint.
A press release from the County Attorney's Office on Tuesday gave some media outlets the impression that the entire lawsuit was dismissed. That's not true, according to the written order and New Times attorney Michael Manning.
"The heart of the case remains in tact," Manning said. "We're moving forward with the action. This is part of the litigation process that we're disappointed with."
Manning said appellate action is under consideration, as well as submitting a revised complaint in federal court by the end of October.
Judge Bolton wrote, “Plaintiffs allege that Wilenchik issued subpoenas that were overbroad and improper, and sought arrest warrants and fines; even if these actions were done maliciously or for an improper purpose, Plaintiffs have not alleged that they are indictable under federal or state law."
Bolton did not rule out that Sheriff Arpaio was maliciously motivated.
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“The fact that Arpaio sought to have Plaintiffs criminally prosecuted does not constitute abuse of process merely because Arpaio disliked Plaintiffs and enjoyed doing them harm,” she wrote.
The judge dismissed the allegations of racketeering and negligence against Wilenchik and Arpaio, in addition to letting Thomas off the hook entirely. She did not dismiss the claims of gross negligence, malicious prosecution, and false arrest and imprisonment. These, she concluded, can be handled by Superior Court -- unless facts presented in an amended complaint persuade her otherwise.
In the press release on Tuesday, Thomas said, “I am grateful that Judge Bolton has dismissed my wife and me and the County Attorney’s Office from this frivolous lawsuit.”
Michael Lacey's statement about the judge's action follows in a separate blog post.