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1 Michael C. Manning (#016255) Larry J. Wulkan (#021404) 2 Stefan M. Palys (#024752) STINSON MORRISON HECKER LLP 3 1850 North Central Avenue, Suite 2100 Phoenix, Arizona 85004-4584 4 Tel: (602) 279-1600 Fax: (602) 240-6925 5 Email: mmanning@stinson.com Attorneys for Plaintiffs 6 7 8 9 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Lead No. CV-10-02756-PHX-NVW Consolidated with: CV10-02757-PHX-NVW CV10-02758-PHX-NVW CV11-00116-PHX-NVW CV11-00262-PHX-NVW CV11-00473-PHX-NVW GARY AND CHERIE DONAHOES VERIFIED SECOND AMENDED COMPLAINT

10 Gary Donahoe and Cherie Donahoe, husband and wife, 11 Plaintiffs, 12 v. 13 Sheriff Joseph Arpaio and Ava Arpaio, 14 husband and wife; ANDREW THOMAS and ANNE THOMAS, husband and wife; 15 LISA AUBUCHON and PETER R. PESTALOZZI, wife and husband; 16 DEPUTY CHIEF DAVID HENDERSHOTT and ANNA 17 HENDERSHOTT, husband and wife; 18 PETER SPAW and JANE DOE SPAW, husband and wife; MARICOPA 19 COUNTY, a municipal entity, and JOHN DOES I-X; JANE DOES I-X; BLACK 20 CORPORATIONS I-V; and WHITE PARTNERSHIPS, I-V 21 Defendants. 22 23 Susan Schuerman, 24 25 v. Plaintiff,

Sheriff Joseph Arpaio and Ava Arpaio, 26 husband and wife; et. al., 27 Defendants. 28
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1 Sandra Wilson and Paul Wilson, husband and wife, 2 Plaintiffs, 3 v. 4 Sheriff Joseph Arpaio and Ava Arpaio, 5 husband and wife; et. al., 6 Defendants.

7 Conley D. Wolfswinkel, a single man, et al., 8 Plaintiffs, 9 10 v. 11 Sheriff Joseph Arpaio and Ava Arpaio, husband and wife; et. al., 12 Defendants. 13 Stephen Wetzel and Nancy Wetzel, 14 husband and wife, 15 16 17 v. Plaintiffs,

Sheriff Joseph Arpaio and Ava Arpaio, 18 husband and wife; et. al., 19 Defendants.

20 Mary Rose and Earl Wilcox, wife and husband, 21 Plaintiffs, 22 v. 23 Sheriff Joseph Arpaio and Ava Arpaio, 24 husband and wife; et. al., 25 Defendants. 26 27 Plaintiffs Gary Donahoe and Cherie Donahoe, for their Verified Second

28 Amended Complaint (the Complaint) against Defendants, hereby allege as follows: 2

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1 2 1.

JURISDICTIONAL ALLEGATIONS This Complaint alleges violations of the First, Fourth, Fifth, and

3 Fourteenth Amendments to the United States Constitution and 42 U.S.C. 1983. This 4 Court has jurisdiction over Plaintiffs federal law claims pursuant to 28 U.S.C. 1331. 5 Pursuant to 28 U.S.C. 1367(a), this Court has supplemental jurisdiction over 6 Plaintiffs claims brought under Arizona law. 7 2. Pursuant to 28 U.S.C. 1391(b), venue in this Court is proper. All of the

8 parties are residents of Maricopa County, Arizona, and the events underlying this 9 lawsuit occurred in Maricopa County. 10 11 3. PARTIES Plaintiffs Gary Donahoe (Judge Donahoe) and Cherie Donahoe are a

12 married couple residing in Maricopa County, Arizona. At all relevant times, Gary 13 Donahoe was a Maricopa County Superior Court Judge. From January 16, 2009, to 14 March 31, 2010, Judge Donahoe served as Presiding Criminal Judge of the Maricopa 15 County Superior Court. Judge Donahoe retired effective June 30, 2011. 16 4. Defendants Joseph Arpaio (Sheriff Arpaio) and Ava Arpaio are a

17 married couple residing in Maricopa County, Arizona. All of Sheriff Arpaios alleged 18 acts were done for the benefit and furtherance of the Arpaios marital community. 19 5. Sheriff Arpaio is named in both his official and individual capacities. At

20 all times material herein, Sheriff Arpaio was the duly-elected Sheriff of Maricopa 21 County, acting under color of law, and the head of the Maricopa County Sheriffs Office 22 (MCSO). 23 6. Defendants Andrew Thomas (Thomas) and Anne Thomas are a married

24 couple residing in Maricopa County, Arizona. All of Thomas alleged acts were done 25 for the benefit and furtherance of the Thomas marital community. 26 7. Thomas is named in both his official and individual capacities. Thomas

27 was the Maricopa County Attorney, and served as the head of the Maricopa County 28 Attorneys Office (MCAO), from January 3, 2005, to April 6, 2010. At all times 3
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1 while the Maricopa County Attorney, Thomas was acting under color of law. After 2 Thomas resigned as County Attorney, the misconduct alleged herein was done for his 3 personal benefit. 4 8. Defendants Lisa Aubuchon (Aubuchon) and Peter Pestalozzi are a

5 married couple residing in Maricopa County, Arizona. All of Aubuchons alleged acts 6 were done for the benefit and furtherance of the Aubuchon-Pestalozzi marital 7 community. 8 9. Aubuchon is named in both her official and individual capacities.

9 Aubuchon was a Maricopa County Deputy County Attorney from September 1996 to 10 September 21, 2010, when she was terminated based, in part, on the facts that form the 11 allegations contained in this Complaint. At all times while acting as a Deputy Maricopa 12 County Attorney, Aubuchon was acting under color of law. 13 10. Defendants David Hendershott (Hendershott) and Anna Hendershott are

14 a married couple residing in Maricopa County, Arizona. All of Hendershotts alleged 15 acts were done for the benefit and furtherance of the Hendershotts marital community. 16 11. Hendershott is named in both his official and individual capacities.

17 Hendershott was the Deputy Chief at the MCSO until he was terminated on, or about, 18 April 22, 2011, based, in part, on the facts that form the allegations contained in this 19 Complaint. At all times while acting as the Deputy Chief, Hendershott was acting under 20 color of law. 21 12. Peter Spaw (Spaw) and Jane Doe Spaw are a married couple residing in

22 Maricopa County, Arizona. All of Spaws alleged acts were done for the benefit and 23 furtherance of the Spaws marital community. Jane Doe Spaws true name is unknown 24 at this time, and will be substituted upon discovery of the same. 25 13. Spaw is named in both his official and individual capacities. Spaw is a

26 Maricopa County Deputy County Attorney. At all times while acting as a Deputy 27 Maricopa County Attorney, Spaw was acting under color of law. 28 4
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14.

Defendant Maricopa County (the County) is a public entity, formed and

2 designated as such pursuant to Title 11, of the Arizona Revised Statutes, and (as such) it 3 and its officers and divisions are subject to civil suit and may be held independently or 4 vicariously liable, or otherwise responsible, for the wrongful conduct of its divisions, 5 agents, officers, and employees. 6 7 15. GENERAL ALLEGATIONS In 2008, the Maricopa County Board of Supervisors (the BOS)

8 announced that County-wide budget cuts would be necessary due to the general 9 economic downturn. 10 16. Thomas and Sheriff Arpaio objected to any budget cuts that would affect

11 the MCAO and MCSO. 12 17. Rather than cut the budgets of the MCAO and MCSO, Thomas and

13 Sheriff Arpaio believed that the BOS should instead stop funding a previously-approved 14 project to build a new courthouse for the Maricopa County Superior Court, known as 15 the Court Tower Project. 16 18. At approximately the same time as the BOS was announcing the budget

17 cuts, Thomas appointed Aubuchon to supervise the Maricopa Anti-Corruption Effort 18 Unit (the MACE Unit). The MACE Unit was established for the stated purpose of 19 fighting government corruption and was comprised of members of the MCAO and 20 MCSO. 21 19. With respect to MCAO's activities in the MACE Unit, Thomas delegated

22 to Aubuchon the authority and responsibility to establish policies, practices, customs, 23 procedures, protocols, and training in Thomas' absence. 24 20. With respect to MCSOs activity in the MACE Unit, Sheriff Arpaio

25 delegated to Hendershott the supervision, authority and responsibility to establish 26 policies, practices, customs, procedures, protocols, and training for the MACE Unit in 27 Sheriff Arpaio's absence. 28 5
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21.

Thomas, Aubuchon, Sheriff Arpaio, and Hendershott operated, controlled,

2 participated in, and managed the MACE Unit, using it as their own vehicle to retaliate 3 against their perceived political opponents. 4 22. Judge Donahoe came to be a target for Thomas, Aubuchon, Sheriff

5 Arpaio, and Hendershott based on several rulings he made that they perceived as being 6 adverse to their interests. Those rulings are summarized as follows: 7 8 9 10 11 12 b. 13 14 15 16 17 18 19 20 21 22 herein. 23 24. In December 2009, at the behest of Sheriff Arpaio and Hendershott, c. On September 25, 2009, Judge Donahoe held a hearing on Orders to Show Cause as to why MCSO Deputy Chief David Trombi (a member of the MACE Unit), whose responsibilities included ensuring there were sufficient MCSO Deputies to timely transport prisoners to their criminal hearings at the Maricopa County Superior Court, should not be held in contempt for failure to obey Maricopa County Superior Court Orders related to the same. In November 2009, Judge Donahoe held Maricopa County detention officer Adam Stoddard in contempt for perusing a criminal defense attorneys file in Court. a. Judge Donahoe presided over a dispute between the BOS, its independently retained counsel, and the MCAO. On February 6, 2009, Judge Donahoe: (1) denied the MCAOs motion to re-assign the case to an out-of-county judge; (2) denied the MCAOs motion to disqualify the BOSs independently retained counsel; (3) quashed a grand jury subpoena obtained by the MCAO to investigate the Court Tower Project; and (4) disqualified the MCAO from investigating the Court Tower Project based on the MCAOs conflict of interest.

COUNT I Malicious Prosecution and Abuse of Process in Violation of 42 U.S.C. 1983: Thomas, Aubuchon, Sheriff Arpaio, Hendershott, and Spaw 23. Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

24 Thomas and Aubuchon filed a federal civil racketeering lawsuit, Arpaio et al. v. 25 Maricopa County Board of Supervisors, et al., 2:09-cv-02492-GMS (D. Ariz. 2009) (the 26 RICO Lawsuit), that named Judge Donahoe as a defendant. 27 25. Prior to commencing the RICO Lawsuit, Spaw received a legal opinion on

28 its merit from the Ogletree Deakins law firm (Ogletree), which had been retained by 6
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1 Hendershott on behalf of the MCSO. Ogletree cautioned that the proposed racketeering 2 claim risked incurring sanctions for unfounded, vexatiously motivated litigation. 3 26. The Ogletree opinion was shared with Thomas, Sheriff Arpaio, and

4 Hendershott before the RICO Lawsuit was commenced. 5 27. Additionally, Thomas was told by his Chief Deputy, Phil MacDonnell,

6 that [t]he idea of a civil RICO case based on current evidence is unfounded. Mr. 7 MacDonnell also wrote, Peter Spaw, our RICO expert, thinks [the RICO Lawsuit] 8 makes no sense. 9 28. The RICO Lawsuit labels Judge Donahoe a corrupt Racketeer based on

10 the content of his rulings. 11 29. In December 2009, after the RICO Lawsuit was filed, it was assigned to

12 Deputy County Attorney Rachel Alexander (Alexander) to prosecute, with Spaw as 13 her supervisor. Spaw and Alexander opposed Motions to Dismiss and filed an

14 Amended Complaint in the RICO Lawsuit. 15 30. Thomas, Aubuchon, Sheriff Arpaio, Hendershott, and Spaw instituted,

16 prosecuted, and maintained the RICO Lawsuit without probable cause, with the purpose 17 of intentionally or recklessly depriving Judge Donahoe of his property, in violation of 18 the Fourth and Fourteenth Amendments, and with malice it was filed for the ulterior 19 purpose of punishing Judge Donahoe for his rulings, in violation of the First, Fourth, 20 Fifth, and Fourteenth Amendments. 21 31. The RICO Lawsuit terminated in Judge Donahoes favor when it was

22 dismissed on March 11, 2010. 23 32. As a direct and proximate result of the conduct alleged herein, Judge

24 Donahoe was damaged as a result of the malicious prosecution and abuse of process, 25 stemming from the RICO Lawsuit. 26 27 28 7
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1 2 3

COUNT II Malicious Prosecution and Abuse of Process in Violation of Arizona Law: Thomas, Sheriff Arpaio, Aubuchon, Hendershott, and Maricopa County 33. Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

4 herein. 5 34. In addition to having violated Judge Donahoes federally established

6 rights, for the reasons alleged in 23-32, Defendants Thomas, Aubuchon, Sheriff 7 Arpaio, and Hendershott are also liable, under Arizona state law, for the torts of 8 malicious prosecution and abuse of process. 9 35. Defendants Thomas, Aubuchon, Sheriff Arpaio, and Hendershott were

10 acting, at all relevant times, in the course and scope of their employment and, therefore, 11 Maricopa County is vicariously liable for their actions in violation of Arizona law. 12 13 14 15 herein. 16 37. At all relevant times, Spaw was acting under color of state law as a 36. COUNT III Violations of 42 U.S.C. 1983 - Supervisor Liability: Spaw Plaintiffs reincorporate the foregoing allegations as though fully set forth

17 MCAO prosecutor. 18 38. Spaw knew, from his own review of the materials in the RICO Lawsuit

19 and from research provided to him from outside counsel, that the RICO Lawsuit lacked 20 a factual or legal basis. 21 39. Upon information and belief, Spaw further knew, or reasonably should

22 have known, that Thomas, Aubuchon, and Sheriff Arpaio were pursuing the RICO 23 Lawsuit for the ulterior purpose of retaliating against Judge Donahoe for his judicial 24 rulings and for exercising his constitutional rights. 25 40. Despite this knowledge, Spaw appeared as counsel in, and supervised, the

26 prosecution of the RICO Lawsuit. 27 28 8

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41.

As a direct and proximate cause of Spaws failure to properly supervise

2 Alexander, or terminate the RICO Lawsuit, the constitutional violations set in motion by 3 Thomas, Aubuchon, Sheriff Arpaio, and Hendershott were exacerbated. 4 42. As a direct and proximate of Spaws conduct, Judge Donahoe suffered

5 damages. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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COUNT IV Malicious Prosecution in Violation of 42 U.S.C. 1983 and Arizona Law: Sheriff Arpaio and Hendershott 43. herein. 44. On December 9, 2009, at the behest and urging of Sheriff Arpaio and Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

Hendershott, a Criminal Complaint was filed by Thomas and Aubuchon against Judge Donahoe charging him with three felonies. 45. Arpaio and Hendershotts pursuit of the Criminal Complaint was in

retaliation against Judge Donahoe based on the content of his judicial rulings. 46. Defendant Hendershott, at Sheriff Arpaio's direction, aided and

encouraged the filing of the Criminal Complaint by providing the language that was used in the probable cause statement associated with the Criminal Complaint. He knew, or recklessly disregarded the fact that, the information he provided for the probable cause statement was false. 47. The prosecutors who filed the Criminal Complaint conducted no

independent investigation of the facts, nor of the probable cause, to determine whether criminal charges were warranted against Judge Donahoe. 48. The proceeding was instigated without probable cause and with malice in

violation of Judge Donahoes constitutional rights, or in reckless disregard of the same. 49. The Criminal Complaint terminated in Judge Donahoes favor when it

was dismissed on March 11, 2010.

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50.

The filing of the Criminal Complaint directly and proximately caused

2 Judge Donahoe damages. 3 4 5 6 51. COUNT V Retaliation for the Exercise of First Amendment Rights in Violation of 42 U.S.C. 1983: Thomas, Aubuchon, Sheriff Arpaio, and Hendershott Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

7 herein. 8 52.

Thomas, Aubuchon, Sheriff Arpaio, and Hendershott retaliated against

9 Judge Donahoe for his judicial rulings by jointly deciding to name him as a defendant in 10 the RICO Lawsuit. 11 53. In January 2010, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott 12 retaliated against Judge Donahoe for his rulings by jointly deciding to initiate a grand 13 jury investigation targeting Judge Donahoe (the Grand Jury Investigation). 14 54. In the Grand Jury Investigation, Judge Donahoe was alleged to have 15 committed felonies based on his judicial rulings. 16 55. Thomas appointed Aubuchon to be the prosecutor for the Grand Jury 17 Investigation. 18 56. At the direction, or with the approval, of Sheriff Arpaio, Hendershott 19 testified at the Grand Jury Investigation against Judge Donahoe. His testimony was 20 false, or otherwise given in reckless disregard of Judge Donahoes constitutionally 21 protected rights. 22 57. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott knew, or recklessly 23 disregarded the fact, that there was no probable cause to support the Grand Jury 24 Investigation because, among other things, the Yavapai County Attorney, Sheila Polk, 25 had previously informed them in September 2009, of the lack of a basis to believe any 26 crime had been committed concerning the cases that had been referred to her in April 27 2009, which formed the basis of the allegations concerning Judge Donahoe. 28 10
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58.

Thomas, Aubuchon, Sheriff Arpaio, and Hendershott further knew, or

2 acted in reckless disregard of the fact, that Judge Donahoe was immune from 3 prosecution based on the content of his judicial rulings. 4 59. Despite their knowledge of these facts, Thomas, Aubuchon, Sheriff

5 Arpaio, and Hendershott used the Grand Jury to investigate Judge Donahoe. 6 7 60. 61. On March 3, 2010, the Grand Jury voted to end the inquiry. Thereafter, Judge Donahoe was retaliated against for the exercise of his

8 rights of freedom of speech and to petition the government for the redress of grievances 9 through the following acts: 10 11 12 13 62. b. a. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts conduct as alleged in Counts 11 and 12; and Thomas and Sheriff Arpaios conduct as alleged in Counts 6 and 7.

Thomas, Aubuchon, Sheriff Arpaio, and Hendershott possessed an

14 impermissible motive to interfere with Judge Donahoes First Amendment rights. 15 63. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts conduct would

16 have chilled a judge and citizen of ordinary firmness from future First Amendment 17 activities. 18 64. But for their retaliatory motive against Judge Donahoe due to his exercise

19 of his First Amendment rights, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott 20 would not have engaged in the conduct alleged herein. 21 65. As a direct and proximate result of the conduct alleged herein, Judge

22 Donahoe suffered damages. 23 24 25 26 27 herein. 28 11

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COUNT VI Defamation and False Light in Violation of 42 U.S.C. 1983: Thomas and Sheriff Arpaio 66. Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

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67.

On December 1, 2009, Thomas, as County Attorney, issued a Press

2 Release announcing that a Federal Racketeering lawsuit had been filed against Judge 3 Donahoe. Thomas stated that the Racketeering laws permitted him to fight local 4 corruption and that Judge Donahoe had ruled in favor of himself (he and other 5 Maricopa County superior court judges will be housed in that building), the Board of 6 Supervisors, and their shared law firm . . . . Sheriff Arpaio included a statement on the 7 Release stating that I took an oath to enforce all laws regardless of a persons stature 8 and position, powerful or not. I commend my Sheriffs Office deputies for conducting 9 professional investigations in spite of the pressures exerted by certain elected and 10 appointed officials in powerful positions. 11 68. On December 9, 2009, Thomas issued another Press Release stating that

12 Judge Donahoe was alleged to have engaged in obstruction of a criminal inquiry into 13 the new Court Tower and accusing Judge Donahoe of willfully misus[ing his] 14 authority to protect [him]sel[f] and [his] benefactors from investigation or prosecution 15 for possible crimes . . . . Sheriff Arpaio included a statement in the Release stating that 16 Judge Donahoe must be held accountable. 17 69. On March 11, 2010, Thomas and Sheriff Arpaio held a press conference at

18 which Sheriff Arpaios counsel, Robert Driscoll, was also present. At the conference, 19 Thomas announced that he achieved a victory in the RICO Lawsuit, even though it 20 had been dismissed the day before, because the only relief that would have been gotten 21 from the case would have been funding the further investigation into the possible 22 prosecution of the defendants in the RICO Lawsuit. 23 70. Driscoll, with the approval of Sheriff Arpaio and Thomas, said that the

24 goal of the RICO Lawsuit had been achieved because the Department of Justices 25 Public Integrity Section (DOJ) had allegedly agreed to investigate the RICO Lawsuit 26 defendants. Driscoll said that [t]he relief that we would be granted in [the RICO] case 27 would be essentially the relief we have now, which is someone [i.e., the DOJ] to 28 investigate and look into the evidence that has been produced. 12
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71.

Driscoll, Sheriff Arpaio, and Thomas knew that the DOJ had made no

2 such agreement. In fact, two days later, the DOJ rejected Driscolls characterization 3 stating, in writing, that it was dismayed to learn that Driscoll used as a platform for a 4 press conference information he received from the DOJ. The DOJ further explained 5 that it had only informed Driscoll that Thomas and Sheriff Arpaio could submit a tip, 6 like any other citizen, and the DOJ would evaluate the information, the same as it would 7 do with any citizens concern. 8 corrected their misstatement. 9 72. On June 22, 2010, Sheriff Arpaio, and Thomas (who had by then resigned Nevertheless, Sheriff Arpaio and Thomas never

10 as County Attorney),1 issued a Press Release stating that: 11 12 13 14 15 16 17 18 19 20 21 22 73. e. d. c. b. a. There is evidence justify[ing] the Court Tower investigation and the filing of criminal charges against Retired Judge Gary Donahoe and claims to the contrary are false rhetoric; Additional information and evidence would be released supporting a criminal case against Judge Donahoe; Judge Donahoe had been accused of being an accessory to attempting to obstruct the Court Tower investigation and related criminal matters and facilitating an alleged bribery scheme in order to protect [Judge] Mundell and to retain his prestigious position as chief criminal judge for the Superior Court; Judge Donahoes claims are bogus and Thomas and Arpaio stated that they hoped to go to trial, where we would no doubt prove [Donahoes] culpability in past and pending investigations. Thomas and Arpaio repeated the foregoing statements at a press conference later on June 22, 2010.

In a June 22, 2010, letter to County Manager David Smith, Sheriff Arpaio

23 demanded that the County refuse to settle Judge Donahoes claims. Sheriff Arpaio 24 wrote that Judge Donahoes claims are frivolous on their face . . . [and] seem designed 25 to obtain a payday without [his] having to prove [his] allegations in a court of law. 26
1 Thomas was no longer a state employee at this time and, therefore, Plaintiffs 1983 27 claim against him does not include these statements. These statements do, however, form the basis of Plaintiffs claims against Thomas for defamation and false light in 28 violation of Arizona law. 13
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1 These claims appear motivated by greed and a belief that friends, colleagues in county 2 administration and subordinates will provide a quick and substantial settlement without 3 requiring [Judge Donahoe] to file lawsuits which would demand proof and subject 4 [Judge Donahoe] to testimony under oath. 5 74. Each of the foregoing statements was published to third parties in a

6 manner that an ordinary person would understand that references to the RICO Lawsuit 7 defendants, the parties involved in the Grand Jury Investigation, the Criminal 8 Complaint, the parties involved in the Court Tower investigation, and the parties who 9 had submitted notices of claim, are references to Judge Donahoe. 10 75. Thomas and Sheriff Arpaio knew their respective statements were false

11 when said, or at a minimum acted with reckless disregard to their falsity, and would 12 injure Judge Donahoes reputation and stature. 13 76. Thomas and Sheriff Arpaios statements placed Judge Donahoe in a false

14 light, which would be highly offensive to a reasonable person. 15 77. Thomas and Sheriff Arpaio knew, or recklessly disregarded the falsity of

16 their statements, and the false light in which Judge Donahoe would be placed. 17 78. Each of the foregoing statements were made in retaliation for Judge

18 Donahoes exercise of his First and Fourteenth Amendment constitutional rights. 19 79. Thomas and Sheriff Arpaios statements would chill a person of ordinary

20 firmness from future First Amendment activities. 21 80. As a direct and proximate result of the statements by Sheriff Arpaio and Judge Donahoe, among other things, was

22 Thomas, Plaintiffs have been damaged.

23 forced to step down as the Presiding Judge of the Criminal Division at the Maricopa 24 County Superior Court, causing Plaintiffs additional damages. 25 26 27 28 14
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1 2 3 4 herein. 5 82. 81.

COUNT VII Defamation and False Light in Violation of Arizona Law: Thomas, Sheriff Arpaio, and Maricopa County Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

Based on the allegations of paragraphs 66-80, Thomas and Sheriff Arpaio

6 are liable for false light and defamation in violation of Arizona law. 7 83. Sheriff Arpaio was acting, at all relevant times, in the course and scope of

8 his employment and, therefore, Maricopa County is vicariously liable for his actions in 9 violation of Arizona law. 10 84. Thomas was acting at all times, other than that specified in 72, in the

11 course and scope of his employment and, therefore, Maricopa County is vicariously 12 liable for his actions in violation of Arizona law. 13 14 15 16 17 herein. 18 86. By committing the acts alleged herein, Thomas, Aubuchon, Sheriff 85. COUNT VIII Violations of 42 U.S.C. 1983 Substantive Due Process: Thomas, Aubuchon, Sheriff Arpaio, and Hendershott Plaintiffs reincorporate the foregoing allegations as though fully set forth

19 Arpaio, and Hendershott deprived Judge Donahoe of his constitutionally-protected 20 rights through actions so far outside the limits of legitimate governmental action that no 21 process could cure the deficiency. 22 87. Additionally, Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts

23 actions against Judge Donahoe were based purely on their animus against him based on 24 his perceived support of the BOS, in reckless disregard of his constitutional rights. 25 88. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts conduct therefore

26 was arbitrary and shocks the conscience. 27 28 15

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89.

As a direct and proximate cause of Thomas, Aubuchon, Sheriff Arpaio,

2 and Hendershotts conduct, Judge Donahoes constitutional rights were violated and he 3 suffered damages. 4 5 6 7 herein. 8 91. Former County Attorney Thomas was a policymaker for Maricopa COUNT IX Violations of 42 U.S.C. 1983 - Municipal Liability: Maricopa County 90. Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

9 County. At material times, he had the ultimate authority and responsibility to establish 10 policies, practices, customs, procedures, and protocols for the MCAO. He also had the 11 obligation to properly supervise members of the MCAO. 12 92. Thomas actions and inactions, as set forth above, including initiating and

13 ratifying malicious investigations and prosecutions against Judge Donahoe, are acts 14 upon which Maricopa County may be found liable under 42 U.S.C. 1983. 15 93. Sheriff Arpaio is an official policymaker for Maricopa County. He has

16 the ultimate authority and responsibility to establish policies, practices, customs, 17 procedures, and protocols for the MCSO. 18 supervise members of the MCSO. 19 94. Sheriff Arpaios actions and inactions, as set forth above, including He also had the obligation to properly

20 initiating and ratifying malicious investigations and prosecutions against Judge 21 Donahoe, are acts upon which Maricopa County may be found liable under 42 U.S.C. 22 1983. 23 95. Thomas and Sheriff Arpaio, by delegating their authority to Aubuchon

24 and Hendershott, respectively, had customs, policies, and procedures of permitting and 25 encouraging Aubuchon and Hendershott to initiate investigations and prosecutions in 26 order to retaliate against their political perceived opponents and punish citizens for their 27 exercise of their constitutional rights. 28 16
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96.

Sheriff Arpaio and Hendershott encouraged their investigators to make

2 false statements in sworn affidavits that Sheriff Arpaio and Hendershott knew would be 3 filed with the courts. For example: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 97. b. a. At a MACE Unit meeting in March 2009, Hendershott and Aubuchon informed their investigators that they wanted to obtain a search warrant to search the BOS offices following an article in the Arizona Republic about a search for listening devices in County offices. Aubuchon directed MCSO Lt. Rich Burden to use creative writing in drafting the search warrant, saying that it would be issued if they put fluff above, fluff below and then took it to a particular justice of the peace for issuance. Lt. Burden openly refused to include false statements in a search warrant affidavit as Aubuchon had directed. Aubuchon subsequently complained to Hendershott, and MCSO employees complained to Arpaio. Hendershott learned of the complaints. In retaliation, Lt. Burden and the other complaining MCSO employees were transferred out of the MACE Unit shortly thereafter. The remaining MCSO employees understood this as a sign that Arpaio and Hendershott wanted the MCSO employees on the MACE Unit to follow Hendershott and Aubuchons directives, with no questions asked. Further, on December 8, 2009, Arpaio conceived the idea of filing a direct Criminal Complaint against Judge Donahoe at a meeting between Thomas, Aubuchon, Sheriff Arpaio, and Hendershott at the MCAO offices. To obtain information for a sworn probable cause statement to attach to the Complaint, Arpaio directed Hendershott to use the information contained in a judicial complaint that Hendershott had previously submitted about Judge Donahoe, even though Arpaio knew that information was false. Hendershott directed an MCSO employee to type the text of the old judicial complaint into the probable cause statement, and then gave the probable cause statement to Aubuchon to get an MCAO investigator to sign it, under penalty of perjury. No MCAO investigator would sign the probable cause statement, which Aubuchon reported to Hendershott. Hendershott thereafter directed Sgt. Luth to get an MCSO Deputy to sign the probable cause statement. Sgt. Luth asked Detective Gabriel Almanza to sign the probable cause statement. Almanza was at first reluctant, but Aubuchon assured him that the statements in the probable cause statement were accurate, although she knew them to be false, or acted in reckless disregard of the falsity of the facts being alleged. On December 9, 2009, Almanza signed the probable cause statement under oath.

As alleged herein, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott,

28 independently and in concert with one another, implemented policies, customs, or 17

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1 procedures which: authorized, approved, condoned, and/or ratified unconstitutional civil 2 and/or criminal investigations. 3 98. As the direct and proximate result of the wrongful conduct of Thomas,

4 Aubuchon, Sheriff Arpaio, and Hendershott, Judge Donahoes constitutional rights were 5 violated and he has suffered harm and has been injured. 6 7 8 9 herein. 10 100. After he resigned as Maricopa County Attorney, Thomas made the 99. COUNT X Defamation/False Light in Violation of Arizona Law: Thomas Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

11 following additional defamatory statements: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c. b. a. On May 20, 2010, when asked about the basis for the Criminal Complaint against Judge Donahoe, Thomas, through his spokesman Barnett Lotstein, told the Phoenix New Times the basis for the charges was in the probable cause statement, and that theres no purpose to explaining again what [Thomas has] already explained. On June 30, 2010, Thomas wrote an article that was published on the Intellectual Conservative blog. The article states that, last week, Arpaio and Thomas released new evidence in support of their RICO lawsuit and criminal case against Maricopa County Judge Gary Donahoe, and repeated the charge that Judge Donahoe was a corrupt Racketeer and felon. On July 14, 2010, Thomas wrote an article that was published on Intellectual Conservative in which he states that the four judges [named later in the article as Fields, Baca, Mundell, and Donahoe] who have filed claims ask to be rewarded financially for misconduct that led them to be properly sued, and in one case [i.e., Donahoe], prosecuted. Later in the same article, Thomas states, Donahoe was ruling on his own case, and his actions served to protect himself, Judge Mundell, and the lawyers representing the court and the board simultaneously. The article goes on to cite a June 22, 2010, press release by Arpaio, disclos[ing] additional facts related to the prosecution of Judge Donahoe . . . to justify the Court Tower Investigation and the filing of criminal charges against retired Judge Gary Donahoe which was purportedly based on specific information. That specific information is described as the anchor [to] the criminal case against Judge Gary Donahoe and the federal RICO case. The article continues, [a]s a result of 18
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 101. 102. f. e. d.

this and other misconduct by these judicial officers . . . Arpaio and Thomas filed a federal lawsuit including the four [judges] as defendants and brought criminal charges against Donahoe. The article characterized Judge Donahoes case (this lawsuit) as being filed because County Attorney Thomas sought to hold [the judges] accountable with a legitimate RICO suit and criminal prosecution of Donahoe . . . [and that Judge Donahoe] stand[s] to benefit from [his] own misconduct . . . . On August 9, 2010, Thomas spokesman, with Thomas knowledge and approval, issued a press release in which Thomas again claims that there was probable cause to believe that Donahoe had committed the crime of bribery. The release states that the benefit necessary to support the charge was keeping his position as Presiding Criminal Court Judge, maintaining a beneficial relationship with the Presiding Judge of Maricopa County, and allowing the Superior Court to benefit from funding by the Board for the tower as well as other projects. Thomas offers similar statements to reaffirm and reiterate his belief in the validity of the RICO Lawsuit. The same allegations were reiterated in an article written on August 10, 2010, by Thomas, that was published on the Intellectual Conservative blog. On August 14, 2010, Thomas wrote an article that appeared in the Arizona Republic, and on the Intellectual Conservative blog on August 16, 2010, in which he stated that the grand jury considering the Judge Donahoe investigation was prepared to act because they had requested an indictment, but were prevented from acting due to a stay. Thomas claimed the grand jury had voted to end their inquiry so it could be referred to another law-enforcement agency. In fact, Aubuchon asked the grand jury to release the case so that it could be transferred to a special prosecutor, but the jury instead asked what other options it had, and thereafter voted to end the inquiry instead of permitting the MCAO or another agency to proceed. On August 16, 2010, Thomas wrote an article that was published on the Intellectual Conservative, in which he reiterated the claim that the grand jury considering Judge Donahoes investigation was poised to act, but for the stay, then ended the inquiry so another prosecutor could take over.

Each of the foregoing statements was published to third parties. These statements were published in a manner that an ordinary person

25 would understand that references to the RICO Lawsuit defendants, the parties involved 26 in the Grand Jury Investigation, the Criminal Complaint, the parties involved in the 27 Court Tower investigation, and the parties who had submitted notices of claim, are 28 references to Judge Donahoe. 19
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103.

Thomas knew his statements were false when published, or at a minimum

2 acted with reckless disregard to their falsity and would injure Judge Donahoes 3 reputation and stature. 4 104. Thomass statements placed Judge Donahoe in a false light, which would

5 be highly offensive to a reasonable person. 6 105. Thomas knew, or recklessly disregarded the falsity of his statements, and

7 the false light in which Judge Donahoe would be placed. 8 106. As a direct and proximate result of the statements by Thomas, Plaintiffs

9 have been damaged. Judge Donahoe had to, among other things, step down as the 10 Presiding Judge of the Criminal Division of the Maricopa County Superior Court. 11 12 13 14 15 herein. 16 108. On or about December 1, 2009, Thomas, Aubuchon, Sheriff Arpaio, and 107. Plaintiffs reincorporate the foregoing paragraphs as though fully set forth COUNT XI Intrusion Upon Seclusion in Violation of Arizona Law: Thomas, Aubuchon, Sheriff Arpaio, Hendershott, and Maricopa County

17 Hendershott intruded upon Judge Donahoes seclusion by jointly deciding to hire a 18 process server to serve Judge Donahoe with the RICO Lawsuit, whom they knew or 19 should have known had been previously prosecuted for threatening to kill Judge 20 Donahoe. 21 109. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott also intruded upon

22 Judge Donahoes seclusion by publishing on the internet Judge Donahoes unlisted 23 home address. Judge Donahoe did not authorize such action. 24 110. The actions of Thomas, Aubuchon, Sheriff Arpaio, and Hendershott

25 would be offensive to a reasonable person. 26 111. The actions of Thomas, Aubuchon, Sheriff Arpaio, and Hendershott direct

27 and proximately caused the Plaintiffs anguish, suffering, and severe emotional distress. 28 20
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112.

Defendants Thomas, Aubuchon, Sheriff Arpaio, and Hendershott were

2 acting, at all relevant times, in the course and scope of their employment and, therefore, 3 Maricopa County is vicariously liable for their actions in violation of Arizona law. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 herein. 114. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts actions in: (1) 113. Plaintiffs reincorporate the foregoing allegations as though fully set forth COUNT XII Intentional Infliction of Emotional Distress: Thomas, Aubuchon, Sheriff Arpaio, and Hendershott, Maricopa County

defaming Judge Donahoe; (2) pursuing the RICO Lawsuit against him; (3) hiring a process server, who had been previously prosecuted for threatening to kill Judge Donahoe, to serve Judge Donahoe with the RICO Lawsuit; and (4) pursuing the Grand Jury Investigation against him, were all acts in and of themselves, and taken together, that are extreme, outrageous, and beyond all possible realms of decency and shock the conscience. 115. Sheriff Arpaio and Hendershotts instigation of charges through the

Criminal Complaint against Judge Donahoe, with no probable cause, is an act that is extreme, outrageous, and beyond all possible realms of decency and shocks the conscience. 116. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts acts were

intentionally aimed at causing Judge Donahoe and his wife extreme emotional distress and/or physical injury and/or harm and were done in reckless disregard of the near certainty that emotional distress and physical injury and/or harm would result from their conduct. 117. As a direct and proximate result of Thomas, Aubuchon, Sheriff Arpaio,

and Hendershotts intentional infliction of emotional distress, Judge Donahoe and his wife have suffered severe emotional distress, adverse physical maladies and manifestations, and physical injury and/or harm in an amount to be determined by trial. 21
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118.

Defendants Thomas, Aubuchon, Sheriff Arpaio, and Hendershott were

2 acting, at all relevant times, in the course and scope of their employment and, therefore, 3 Maricopa County is vicariously liable for their actions in violation of Arizona law. 4 5 6 7 8 herein. 9 120. The MACE Unit was an association-in-fact in which Thomas, Aubuchon, 119. Plaintiffs reincorporate the foregoing paragraphs as though fully set forth COUNT XIII Violations of Arizonas Racketeering Statute, A.R.S. 13-2314.04: Thomas, Aubuchon, Sheriff Arpaio, and Hendershott

10 Sheriff Arpaio, and Hendershott participated, controlled, managed, conducted, and/or 11 operated in order to retaliate against their political opponents, and for financial gain. 12 121. From approximately March 2008 until February 2010, Hendershott and

13 Aubuchon met concerning the MACE Units investigations and civil and criminal 14 prosecutions, and conspired as to who to target and how to target them. From time to 15 time, Thomas and Sheriff Arpaio attended those meetings and were each continually 16 updated on the MACE Units activities. 17 122. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott operated the MACE

18 Unit for financial gain in the following ways: (1) the MACE Unit was used to heighten 19 the appearance of public corruption permitting Sheriff Arpaio to raise money for the 20 Sheriffs Command Association Fund, which provided financing for Thomas and 21 Sheriff Arpaios election campaigns; (2) the same perception helped Thomas and 22 Sheriff Arpaio raise money from private donors for their political campaigns; and (3) 23 one of the MACE Units objectives was to attempt to force the BOS to eliminate the 24 Court Tower Project and divert funds dedicated to it to the MCSO and MCAOs 25 budgets, which was the critical factor necessary for Thomas and Sheriff Arpaio to 26 exercise their power. 27 28 22
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123.

The MACE Unit specifically committed the following pattern of unlawful

2 acts, in addition to others, in violation of A.R.S. 13-2314.04 and A.R.S. 13-2312:2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 124. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott violated A.R.S. 24 13-2312 and 13-2314.04 through the following pattern of unlawful acts that they 25 committed against Judge Donahoe: 26 27
2 The Plaintiffs are not seeking damages for the acts alleged in this paragraph, but 28 instead provide them to establish a pattern of unlawful activity. 23
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a.

Theft by extortion; bribery of a public servant; offer to exert improper influence on public officer or employee for consideration. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott jointly attempted to induce BOS Chair Donald Stapleys assistant, Susan Schuerman, to falsely testify against Stapley. They threatened to criminally investigate and prosecute her if she did not cooperate. Once their criminal investigation began, they implicitly promised the investigation would end without charges if she would cooperate. This is a violation of A.R.S. 13-1804(A)(5) and (7); and A.R.S. 13-2602(A) and 132606. Obstructing criminal investigations or prosecutions. The MCSO obstructed investigations by, among other things, threatening MCSO Deputy Frank Munnell with physical harm if he cooperated with a Department of Justice investigation. This is a violation of A.R.S. 13-2409. Theft by extortion. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott directed MCSO Deputies to threaten County employee Stephen Wetzel if he maintained his lawful control over County information technology systems during an armed raid. These were violations of A.R.S. 13-1804(A)(5) and (7). Theft by extortion; bribery of a public servant; offer to exert improper influence on public officer or employee for consideration. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott threatened to have the MACE Unit publicly investigate and prosecute members of the BOS if they: (1) cut MCAO or MCSO budgets; (2) did not abandon the Court Tower Project; or (3) paid outside counsel. These are each violations of A.R.S. 13-1804(A)(5) and (7). Implicit in these threats was a promise that there would not be investigations and prosecutions if the BOS and Sandra Wilson complied with the demands. This is a violation of A.R.S. 13-2602(A) and 13-2606.

b.

c.

d.

a.

Theft by extortion. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott filed the RICO Lawsuit in an attempt to induce Judge

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1 2 3 4 5 6 7 8 125. b.

Donahoe to recuse himself from hearing pending motions to disqualify the MCAO in matters concerning the BOS. Sheriff Arpaio and Hendershott also instigated the filing and prosecution of criminal charges against Judge Donahoe to induce him to recuse himself from hearing the disqualification motion. These acts were in violation of A.R.S. 13-1804(A)(7). Theft by extortion. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott implicitly threatened physical harm to Judge Donahoe if he did not recuse himself from the disqualification hearing, by sending a process server who had been prosecuted for threatening to kill Judge Donahoe to serve him with the RICO Lawsuit. This was a violation of A.R.S. 13-1804(A)(7).

The alleged acts supporting the causes of action set forth in Counts I-II,

9 IV-VII, X-XII were committed by Thomas, Aubuchon, Sheriff Arpaio, and Hendershott 10 in furtherance of the MACE Units activities, and therefore in violation of A.R.S. 1311 2312 and 13-2314.04. 12 126. As a direct, proximate, and reasonably foreseeable result of the violations

13 of A.R.S. 13-2312 and 13-2314.04 by Thomas, Aubuchon, Sheriff Arpaio, and 14 Hendershott, Judge Donahoe incurred approximately $220,000 in attorneys fees 15 defending himself against the baseless civil and criminal charges, investigations and 16 damage to his person, including his reputation, and extreme emotional distress. 17 127. All of Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts conduct

18 described in this Count constitute violations of A.R.S. 13-2312 and 13-2314.04. 19 They are each responsible for all violations of A.R.S. 13-2314.04 and the damages 20 stemming therefrom, due to their control of the MACE Unit pursuant to A.R.S. 1321 2312. 22 128. Pursuant to A.R.S. 12-2314.04, Judge Donahoe is entitled to an award

23 of treble damages, in addition to his attorneys fees and costs. 24 25 26 27 28 24

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JURY TRIAL 129. Plaintiffs hereby request a trial by jury. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for damages for judgment, jointly and severally,

Case 2:10-cv-02756-NVW Document 243 Filed 11/21/11 Page 25 of 27

1 against Defendants as follows: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25

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(i) (ii)

General damages in an amount to be proven at trial; Punitive damages in an amount deemed just and reasonable as to the causes of action alleged herein;

(iii)

Costs and attorneys fees against all Defendants as to the causes of action alleged under the Constitution and laws of the United States, pursuant to 42 U.S.C. 1988;

(iv)

Treble damages and attorneys fees against Thomas, Sheriff Arpaio, Hendershott, and Aubuchon pursuant to A.R.S. 13-2312 and 132314.04.

(v) (vi)

The costs of litigation; All remedies provided by 42 U.S.C. 1983 and 1988, and A.R.S. 132301, et seq.; and

(vii)

Such other and further relief which may seem just and reasonable under the circumstances.

RESPECTFULLY SUBMITTED this 21st day of November, 2011. STINSON MORRISON HECKER LLP By: s/ Michael C. Manning Michael C. Manning Larry J. Wulkan Stefan M. Palys 1850 North Central Avenue, Suite 2100 Phoenix, Arizona 85004-4584 Attorneys for Plaintiffs

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1 2

CERTIFICATE OF SERVICE

I hereby certify that on November 21, 2011, I caused the foregoing document to be filed electronically with the Clerk of Court through ECF; and that ECF will send an 3 e-notice of the electronic filing to the following ECF participants: 4 Daryl A. Audilett, Esq. KIMBLE, NELSON, AUDILETT & KASTNER, PC 5 335 N. Wilmot, Suite 500 Tucson, AZ 85711-2635 6 Attorneys for Defendants Arpaio 7 Donald Wilson, Esq. BROENING, OBERG, WOODS & WILSON, PC 8 1122 E. Jefferson Phoenix, Arizona 85036 9 Attorneys for Defendants Thomas 10 James P. Mueller, Esq. MUELLER & DRURY, P.C. 11 8110 E. Cactus Road, Suite 100 Scottsdale, AZ 85260 12 Attorneys for Defendants Aubuchon and Pestalozzi 13 Barry Markson, Esq. THOMAS THOMAS & MARKSON P.C. 14 2700 N. Central Avenue, Suite 800 Phoenix, AZ 85006 15 Attorneys for Defendants Hendershott 16 Victoria L. Orze, Esq. HINSHAW & CULBERTSON, LLP 17 3200 N. Central Avenue, Suite 800 Phoenix, AZ 85012 18 Attorneys for Defendant William Montgomery 19 Steven A. LaMar, Esq. BEER & TOONE, P.C. 20 76 E. Mitchell Drive Phoenix, AZ 85006 21 Attorneys for Defendant Maricopa County 22 23 24 25 26 27 28 27
DB04/839160.0002/5402569.1DD02

By: s/ Kathleen Kaupke