Friday, June 10, 2011
Ninth Circuit Revives Claims by Publishers Jailed Over Story
Prosecutor Denied Immunity From Suit for Ordering Arrests Over Publication of Grand Jury Subpoenas
By KENNETH OFGANG, Staff Writer
The publishers of a weekly newspaper, arrested late at night after publishing the contents of purported grand jury subpoenas, can sue the prosecutor who allegedly ordered their arrests, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Partially reversing a district judge’s decision, the panel said by Michael Lacey, Jim Larkin, and Phoenix New Times, LLC have alleged sufficient facts to state claims against former special prosecutor Dennis Wilenchik for malicious prosecution, violation of the First and Fourth Amendments, and malicious prosecution.
The panel, however, upheld District Judge Susan Bolton’s dismissal of the claim that Wilenchik deprived the publishers of equal protection by singling them out as targets of a grand jury investigation into whether they violated state law by publishing private information about Maricopa County Sheriff Joe Arpaio.
The judges also upheld the dismissal of all claims against Arpaio, who the publishers claim was behind the arrests, and County Attorney Andrew Thomas, who was responsible for the appointment of Wilenchik, his former law partner, as special prosecutor.
The New Times has long been critical of Arpaio, who has been the county’s top law enforcement office since 1993 and bills himself as “America’s Toughest Sheriff.” In 2004, the newspaper accused the sheriff of improprieties in connection with commercial land transactions, and questioned why certain personal information had been removed from public records regarding those deals.
Alleged Death Threats
Arpaio responded that he had received death threats and therefore wanted to shield his personal address and related information private. The newspaper followed up with a story claiming the sheriff’s explanation was implausible because the information was already publicly available.
The newspaper then published the information, claiming it had obtained all of it from governmental and political websites.
Months later, Arpaio asked Thomas—a political ally who had been elected county attorney, the chief prosecutor’s job, after the stories appeared—to investigate the New Times. He cited an Arizona statute that makes it a felony to publish personal information on the Internet if the subject is a peace officer, judicial officer, prosecutor or public defender and it is “reasonably apparent” that the subject’s safety will be threatened as a result.
Thomas claimed a conflict of interest and bounced the investigation to the county attorney in neighboring Pinal County, who found no cause to prosecute and sent the case back to Thomas. In June 2007, Thomas named Wilenchik, a Phoenix lawyer, as special prosecutor.
Wilenchik then initiated a grand jury probe, issuing two subpoenas for information and documents about the newspaper’s operations, particularly with respect to stories critical of the sheriff. The New Times moved to quash, noting that Wilenchik failed to comply with a statute requiring that subpoenas either be approved by the grand jury prior to issuance, or that the issuance of a subpoena be reported to the grand jury and the superior court within 10 days.
The newspaper also ran a critical story on the probe. The next day, Wilenchik served a third subpoena, seeking information about the story.
Weeks later, following disclosure of what a judge described as an “absolutely inappropriate” attempt to discuss the motions to quash ex parte, the newspaper published the subpoenas, in apparent disregard of a statute barring publication of the nature or substance of grand jury proceedings.
Wilenchik promptly moved to have the publishers held in contempt and fined $90 million for publishing the contents of the subpoenas. That night, without obtaining any ruling on that motion, he had the publishers arrested.
The publishers were released the next day. The arrests led to an outcry, causing Thomas—within 24 hours—to withdraw the special prosecutor’s appointment and end the probe.
Arpaio, Wilenchik, and Thomas have all denied involvement in the arrests.
In response to defense motions, Bolton ruled that Thomas, but not Wilenchik, had absolute prosecutorial immunity; that Wilenchik and Arpaio had qualified immunity from the federal claims, that the state claims should be remanded to Arizona courts, and that Maricopa County could not be sued in the absence of a constitutional violation for which any individual defendant could be held liable.
Tenth Circuit Judge Timothy Tymkovich, sitting on the Ninth Circuit by designation, said Wilenchik lacks absolute or qualified immunity.
The special prosecutor lacks absolute immunity, the judge said, because the issuance of the subpoenas, and his alleged—albeit disputed—role in the arrests constitute investigatory, rather than prosecutorial, activity.
The extent of his knowledge and involvement will have to fleshed out in discovery, the judge explained. “But at this point, the complaint alleges Wilenchik knew the subpoena was not approved by a grand jury and that he lacked probable cause to believe Plaintiffs committed a crime by publishing them,” the judge wrote.
The plaintiffs, he went on to say, have also alleged sufficient facts for a jury to find that Wilenchik deliberately violated established constitutional rights and thus is not protected by qualified immunity. Jurors could find, for example, that Wilenchik knew that the subpoenas were improperly issued and thus lacked probable cause to believe that their publication violated the grand jury statute, the jurist explained.
The panel also revived the state-law claims and the claims against the county, since the dismissal of those causes of action was based on the erroneous conclusion that no federal claims were sufficiently pled.
Judge N. Randy Smith joined in Tymkovich’s opinion, while Judge Jay Bybee dissented in part, arguing that Arpaio also lacked qualified immunity.
While the majority agreed with the district judge that Arpaio did not violate any constitutional right by encouraging prosecutors to pursue the issue of whether the publishers violated the sheriff’s privacy, Bybee argued that as the facts were pled in the complaint “it is more than reasonable to infer that Arpaio had acted with intent to violate Plaintiff’s constitutional rights.”
He cited a letter from Arpaio’s legal director, attached as an exhibit to the complaint, explaining that the sheriff pursued a case against the newspaper, but not against others who had published similar information online, because the newspaper had been “inflammatory” and “insulting” in its coverage of the sheriff.
Bybee also pointed out that Wilenchik has implicated Arpaio as being behind the arrests.
Bybee also dissented with regard to the Fourteenth Amendment issue, arguing the plaintiffs should be permitted to pursue a selective prosecution claim against Wilenchik.
The case is Lacey v. Maricopa County, 99-15703.
Copyright 2011, Metropolitan News Company