Ariz. publishers' suit against special prosecutor can proceed

Publishers of an alternative Arizona newspaper can continue their civil rights lawsuit against a special prosecutor who they say violated their constitutional rights by arresting the pair for publicizing purported grand jury subpoenas, a federal appellate court ruled last week.

The opinion from the U.S. Court of Appeals in San Francisco (9th Cir.) reversed a trial court’s dismissal of a lawsuit Michael Lacey and Jim Larkin, publishers of the Phoenix New Times, filed against Dennis Wilenchik, a former Maricopa County special prosecutor.

However, the court upheld the dismissal of the constitutional claims the pair brought against Maricopa County Sheriff Joe Arpaio and former County Attorney Andrew Thomas, saying both were immune from suit. One judge on the three-judge panel disagreed regarding the allegations against Arpaio, saying the publishers had shown that he could be liable for their claims.

The lawsuit stems from a years-long dispute between the Phoenix New Times and Arpaio that culminated in deputies in unmarked cars arresting Lacey and Larkin in the middle of the night.

The paper was investigating a series of commercial land deals Arpaio made in 2004. It questioned why the sheriff removed his home address from public records describing the deals.

When Arpaio said he removed his address out of fear of being targeted by threats, the paper followed up with an article demonstrating how the sheriff’s address could easily be obtained from a number of government and political party websites. The newspaper published Arpaio’s address in the story.

According to the publisher’s lawsuit, Arpaio then began a three-year investigation into whether the paper violated a state law that prohibits the publication of personal information of peace officers, judges and others if the publication would pose a threat to the individual.

Thomas’ office initially reviewed the matter, but recommended that Thomas decline to prosecute the paper. Thomas referred the investigation to a nearby county. Officials in that county also declined to prosecute despite being pressured by Arpaio, according to the suit.

In 2007, Thomas hired Wilenchik to investigate the matter. Wilenchik issued subpoenas for access to information about the paper’s readers, editors and reporters. The subpoenas were issued without Wilenchik convening a grand jury, according to the lawsuit.

While fighting the subpoenas in court, the newspaper published the contents of the subpoenas. Wilenchik advised deputies to arrest the publishers for violating a law that prohibits publishing information about grand jury proceedings, according to the suit.

The publishers were released the next day and the charges against them were dropped.

The appellate court ruled that Wilenchik was not immune from suit because the publishers alleged that the special prosecutor violated their First and Fourth Amendment rights when he ordered their arrest.

The publishers alleged that, because Wilenchik had not convened a grand jury, he knew that disclosure of the subpoenas sent to the paper did not violate the state’s prohibition on breaching grand jury secrecy.

Further, the publishers alleged that Wilenchik sought their arrests not because he believed a crime had been committed, but because “he intended to chill The Phoenix New Times’ exercise of First Amendment rights,” according to the Ninth Circuit opinion.

The court also revived a malicious prosecution claim the publishers filed against Wilenchik.

While reviving parts of the publishers’ lawsuit, the court also affirmed a lower court’s decision to find that Arpaio and Thomas were immune from suit because of their status as public officials.

The majority’s refusal to recognize Arpaio’s alleged involvement in the arrests drew a dissent by Circuit Judge Jay Bybee, who said the pair’s allegations reveal a “sordid tale of abuse of public office” by the sheriff.

“First, the complaint makes clear that Arpaio never had grounds for investigating Plaintiffs for violation of the Arizona privacy statute,” Bybee said. “Second, the complaint plainly charges that Arpaio had no basis for ordering Plaintiffs’ arrest.”