Metropolitan News-Enterprise


Monday, August 19, 2013


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Court Rejects Disbarred Ex-Prosecutor’s Absolute Immunity Claim




The former chief prosecutor for Arizona’s largest county, who has been disbarred for bringing baseless lawsuits and prosecutions against political enemies of the county’s high-profile sheriff, is not entitled to absolute immunity from a civil rights suit by one of his targets, the Ninth U.S. Circuit Court of Appeals ruled Friday.

If the allegations of Donald Stapley Jr.’s complaint are true, Judge William Fletcher wrote, the civil suit filed by Andrew Thomas against Stapley under the federal Racketeer Influenced and Corrupt Organizations Act “was not ‘analogous’ to a criminal prosecution,” but “was essentially a harassing public-relations ploy.”

Thomas was the elected Maricopa County attorney from 2005 to 2010, when he resigned to run for state attorney general. He lost that race, and last year was disbarred by the state Supreme Court for having “out­rageously exploited power, flagrantly fostered fear, and disgracefully misused the law” by bringing unfounded and malicious criminal and civil charges against political opponents, including judges and county supervisors.

He announced months ago that he is going to run for governor next year.

Thomas is a longtime ally of Maricopa County Sheriff Joe Arpaio, the self-proclaimed “Toughest Sheriff in America.”

Stapley is a former county supervisor, who criticized Arpaio and Thomas on numerous occasions regarding what he said was extravagant and unnecessary spending. Among other things, he criticized Thomas’ repeated use of expensive outside counsel, including Thomas’ former law firm.

Retaliation Alleged

In seeking damages under 42 U.S.C. Sec. 1983 and Arizona law, Stapley claims that the 2009 RICO suit was brought to retaliate for that criticism, as well as for cuts to Arpaio’s and Thomas’ budgets.

The RICO suit named Arpaio and Thomas as plaintiffs and Thomas and Lisa Aubuchon—a former deputy county attorney who was disbarred along with Thomas—as counsel. They named 14 defendants, among them county board members and state court judges.

They alleged that the defendants conspired to undermine Thomas and Arpaio’s corruption investigations related to a courthouse building project by cutting Thomas’ budget and filing a false ethics complaint with the Arizona bar, among other things.

The RICO action was voluntarily dismissed the complaint just a few months later, but Thomas and Arpaio claimed that they had accomplished their purposes, because the federal Justice Department had agreed to take over the case. In fact, no action was taken by the DOJ, and an official there expressed dismay that a mere discussion of the facts was treated by Thomas and Arpaio “as a platform for a press conference.”

Claims Settled

Stapley and many of the other RICO defendants subsequently sued Thomas, Aubuchon, Arpaio and Maricopa County for malicious prosecution, false imprisonment and arrest, intentional infliction of emotional distress, unlawful search, and more. Settlements, however, have narrowed the case to Stapley’s claims against Thomas and Aubuchon.

U.S. District Judge Neil V. Wake of the District of Arizona denied Thomas and Aubuchon’s motion for dismissal on grounds of absolute immunity, and the defendants took an interlocutory appeal.

Fletcher said the district judge was correct in holding that the immunity given prosecutors who bring allegedly baseless criminal actions should not apply to the case. He cited the civil nature of the suit, noted that the filing of RICO suits is not a public duty of county attorneys—who “have no status as plaintiffs different from private citizens” in such cases—and pointed out that “defendants received warnings from attorneys both inside and outside their office that the suit had no basis in fact or law and would likely result in sanctions.”

Fletcher cited a previous Arpaio-related case, Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012), in which the court held, en banc, that former special prosecutor Dennis Wilenchik—an appointee and former employer of Thomas—lacked absolute immunity from allegations that he improperly issued subpoenas and caused the publishers of an anti-Arpaio newspaper to be falsely arrested, because the alleged misconduct was of an investigative, nor prosecutorial, nature.

The case is Stapley v. Pestalozzi, 12-161645.


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