Maricopa County Rico Complaint

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ANDREW P. THOMAS MARICOPA COUNTY ATTORNEY Lisa M. Aubuchon, #013141 Deputy County Attorney 100 West Washington Suite 2100 Phoenix, AZ 85003 Telephone: (602) 372-0036 FAX: (602) 372-7210 Email: [email protected]

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Attorneys for Plaintiffs 9 10 11

IN THE UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Joseph M. Arpaio, in his official capacity as Maricopa County Sheriff, and Andrew P. Thomas, in his official capacity as Maricopa County Attorney,

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Case No. COMPLAINT VIOLATIONS OF THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT (18.U.S.C. §§1961, et seq.)

Plaintiffs,

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v.

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Maricopa County Board of Supervisors, a body politic and corporate; Fulton Brock, Supervisor, Maricopa County Board of Supervisors; Andrew Kunasek, Supervisor, Maricopa County Board of Supervisors; Donald T. Stapley, Jr., Supervisor, Maricopa County Board of Supervisors; Mary Rose Wilcox, Supervisor, Maricopa County Board of Supervisors; Max Wilson, Supervisor, Maricopa County Board of Supervisors; David Smith, County Manager; Sandi Wilson, Deputy

DEMAND FOR JURY TRIAL

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County Manager; Wade Swanson, Office of General Litigation; Barbara R. Mundell, Judge of the Superior Court of Arizona, Anna Baca, Judge of the Superior Court of Arizona, Gary Donahoe, Judge of the Superior Court of Arizona, Kenneth Fields, Judge of the Superior Court of Arizona, in their official capacities; Thomas Irvine, attorney; Edward Novak, attorney; and Polsinelli Shughart P.C., Defendants.

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Joseph Arpaio, in his official capacity as Maricopa County Sheriff, and Andrew P.

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Thomas, in his official capacity as Maricopa County Attorney, by and through their

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undersigned attorney, allege as follows:

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INTRODUCTION 1. This action arises from a concerted scheme to hinder the criminal investigation and

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prosecution of elected officials and employees of Maricopa County, Arizona and their 17 18

attorneys in the course of committing the predicate offenses described herein related to

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the funding and construction of the Maricopa County Superior Court Tower. The scheme

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involved numerous acts enumerated below, including but not limited to: coordinated 21 22

efforts by all defendants to protect defendant Donald Stapley Jr. from criminal

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investigation and prosecution, improperly end other proper criminal investigations, and

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intimidate and retaliate against county prosecutors and law-enforcement personnel; use of 25 26

public money for the corrupt purpose of locating surveillance devices authorized by law

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enforcement in order to avoid detection of crimes; threats against Maricopa County’s

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chief prosecutor and his wife if he challenged the unlawful actions of certain defendants 2

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in court; repeated attempts to block investigations and prosecutions of certain defendants,

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threaten and extort county officials and employees, and intimidate any prosecutor who 3 4

might be involved in these efforts by, inter alia, corruptly seeking to deny prosecutors

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their license to practice law in Arizona; other acts of bribery, extortion and hindering and

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obstruction of prosecution, some of which are ongoing. 7 8

2. As a result of the scheme, criminal investigations and prosecutions have been

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impeded.

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3. Large and undisclosed amounts of taxpayer funds have been spent on defendant

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attorneys and possibly other defendants or their associates in violation of law. 4. Defendants’ actions have deprived plaintiff Arpaio, a consumer of civil legal services from the Maricopa County Attorney’s Office (MCAO), of these services, to which he is

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entitled by state law.

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5. Defendants’ actions have deprived plaintiff Thomas and MCAO of authority and

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funds required to provide civil legal services to plaintiff Arpaio and other county

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agencies. As a result of defendants’ concerted actions, funding to the MCAO Civil 20 21 22

Division was cut by approximately $6 million in violation of law, thereby preventing MCAO from fulfilling its statutory duties to the Sheriff’s Office and other county clients.

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This money has been transferred to legal offices created through the concerted and illicit 24 25

efforts of defendants, staffed by attorneys who report to defendants and serve as

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taxpayer-funded public advocates of criminal suspects and targets of ongoing criminal

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investigations. 28

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6. Defendants have conspired to deprive plaintiff Thomas and MCAO prosecutors of a

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cognizable property interest, namely their license to practice law in Arizona, in retaliation 3 4

for investigation and prosecution of defendants’ actions, to deter other prosecutors from

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attempting to enforce the criminal laws against defendants, and for other illicit purposes.

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JURISDICTION AND VENUE 7

7. This Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1367, and 18 8

U.S.C. §§1961-1964. Venue is proper in this Court pursuant to 18 U.S.C. §1965(a) and 9

28 U.S.C. § 1391. 10

PARTIES 11 12

8. Joseph M. Arpaio (“Arpaio”), in his official capacity as Maricopa County Sheriff, is a

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plaintiff in this action and a resident of Maricopa County, Arizona.

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9. Andrew P. Thomas (“Thomas”), in his official capacity as Maricopa County Attorney,

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is a plaintiff in this action and a resident of Maricopa County, Arizona. 10. Defendant Maricopa County Board of Supervisors (“Board”) is composed of five elected officials that are formed under Arizona Revised Statutes §11-201 et seq.

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11. Defendant Fulton Brock (“Brock”) is an elected member of the Board and a resident

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of Maricopa County, Arizona.

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12. Defendant Andrew Kunasek (“Kunasek”) is an elected member of the Board and a

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resident of Maricopa County, Arizona. 24 25 26

13. Defendant Donald T. Stapley, Jr. (“Stapley”) is an elected member of the Board and a resident of Maricopa County, Arizona.

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14. Defendant Mary Rose Wilcox (“Wilcox”) is an elected member of the Board and a 28

resident of Maricopa County, Arizona. 4

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15. Defendant Max Wilson is an elected member of the Board and a resident of

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Maricopa County, Arizona. 3 4

16. Defendant David Smith (“Smith”) is the Maricopa County Manager, hired by and

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serving at the pleasure of the Board, and a resident of Maricopa County, Arizona.

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17. Defendant Sandi Wilson is the Deputy Maricopa County Manager, hired by and 7 8

serving at the pleasure of the Board and/or the County Manager, and a resident of

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Maricopa County, Arizona.

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18. Defendant Wade Swanson (“Swanson”) is an attorney, hired by and serving at the

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pleasure of the Board and/or the County Manager, who works for a law office created by the Board, and who is a resident of Maricopa County, Arizona. 19. Defendant Barbara R. Mundell (“Mundell”) is the Maricopa County Superior Court

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Presiding Judge and a resident of Maricopa County, Arizona.

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20. Defendant Anna Baca (“Baca”) is a retired Maricopa County Superior Court Judge

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who was, at all times referred to in this action, the Maricopa County Superior Court

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Criminal Presiding Judge and a resident of Maricopa County, Arizona. 20 21 22

21. Defendant Gary Donahoe (“Donahoe”) is currently the Maricopa County Superior Court Criminal Presiding Judge and a resident of Maricopa County, Arizona.

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22. Defendant Kenneth Fields (“Fields”) is a retired Maricopa County Superior Court 24 25

Judge and a resident of Maricopa County, Arizona.

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23. Defendant Thomas Irvine (“Irvine”) is an attorney with the law firm of Polsinelli

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Shughart, P.C. and a resident of Maricopa County, Arizona. 28

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24. Defendant Edward Novak (“Novak”) is an attorney with the law firm of Polsinelli

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Shughart, P.C. and a resident of Maricopa County, Arizona. 3 4

25. Defendant Polsinelli Shughart, P.C. (“Polsinelli”) is a corporation and law firm doing

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business in Maricopa County, Arizona.

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GENERAL ALLEGATIONS

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26. In approximately November 2006, the Maricopa County Superior Court hired

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defendant Irvine and the law firm of Shughart, Thomson & Kilroy, which later merged

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into defendant Polsinelli, as counsel and “space planner” for the new Maricopa County

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Superior Court Tower (“Court Tower”). The Court used a City of Phoenix contract for

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this hiring rather than going through the normal procurement process. At some point,

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defendant Board also hired defendants Irvine and Polsinelli as attorneys to represent the

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defendant Board on the same Court Tower project.

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27. The Board approves the annual budget and supplemental budgets and appropriations

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for the Maricopa County Superior Court.

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28. In a series of votes from 2007 to 2009, the Board approved the expenditure of

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approximately $341 million in public monies to fund and construct the new Court Tower.

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The Court Tower is the most expensive public-works project in the history of Maricopa

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County government.

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29. Upon completion, this new Court Tower will house Maricopa County Superior Court

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Judges and supporting courtrooms and facilities. The Court Tower will contain such

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amenities as marble, travertine and wood flooring, and individual “robing rooms” for

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Superior Court Judges.

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30. Defendant Mundell and other Superior Court Judges and Superior Court personnel

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have worked closely with defendants Stapley, Board, Smith and Sandi Wilson in

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planning, coordinating and facilitating funding for the Court Tower.

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31. In approximately October 2007, defendants Mundell, Fields and other current and retired Maricopa County Superior Court Judges conspired and acted outside the scope of 6

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their judicial offices to instigate frivolous investigations of plaintiff Thomas and other

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MCAO prosecutors and deputies by the State Bar of Arizona. This effort began in the

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wake of differences between plaintiff Thomas and defendant Mundell and her

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subordinates regarding enforcement of state laws governing illegal immigration and

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related issues and public debate regarding same. A total of 13 such investigations were

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initiated after emissaries of this group of judges (“the Mundell-Fields faction”)

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approached leaders and officials of the State Bar and urged them to “do something” about

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Thomas. Eventually, the State Bar dismissed all of these investigations.

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32. The Mundell-Fields faction met, communicated and/or conspired outside the scope

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of their judicial offices for these illicit purposes and have continued with these actions,

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and with these illicit purposes, to the present.

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33. At all times in the allegations listed in subsequent paragraphs in this Complaint, and

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upon information and belief, defendants Mundell, Baca, Donahoe and Fields worked in

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concert with themselves, the other defendants and other parties, some of whom are

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currently unknown to plaintiffs, to facilitate the payment of public monies by the Board

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to the Superior Court to fund the Court Tower, as well as to defendants Irvine, Novak and

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Polsinelli, in exchange for hindering and providing prosecution from criminal

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investigation and prosecution for defendants Stapley, Board, Board members, Smith,

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Sandi Wilson and Swanson, as well as other illicit services.

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34. At all times in the allegations listed in subsequent paragraphs in this Complaint, and

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upon information and belief, defendants worked in concert to threaten and extort

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plaintiffs Arpaio and Thomas and employees of the Maricopa County Attorney’s Office

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(MCAO) and the Maricopa County Sheriff’s Office (MCSO) to hinder and obstruct

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criminal investigations and prosecutions of themselves.

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35. On December 2, 2008, MCSO deputies served defendant Stapley with a 118-count

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indictment returned by the Maricopa County Grand Jury.

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36. Within a few days of service of the indictment, the Board and other defendants hired

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a contractor at public expense to “sweep for bugs” in order to determine if any law

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enforcement agency had placed listening devices in county offices. While the Board and

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its employees later justified this action publicly as necessary to comfort county

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employees, interviews of county employees by sheriff’s deputies showed otherwise and

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specifically that these actions were taken solely to protect defendant Board, as well as

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defendants Brock, Kunasek, Stapley, Wilcox, and Max Wilson (hereinafter “Board

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members”) and their staff, from potential criminal investigation and prosecution.

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37. Initially, the Stapley criminal case was randomly assigned to a Maricopa County

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Superior Court Judge pursuant to the standard policies of the Maricopa County Superior

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Court. These practices require a “blind draw” to ensure the impartial administration of

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justice. However, on December 8, 2008, defendant Mundell violated those policies by

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interceding and reassigning the Stapley case to defendant Fields.

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38. Defendant Fields repeatedly had demonstrated bias against plaintiff Thomas and

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MCAO. This bias was well known to defendants Mundell and Baca, whom Mundell

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appointed to her position as Presiding Criminal Judge and who served in said position at

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Mundell’s pleasure.

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39. The evidence of defendant Fields’ bias was extensive. A Superior Court employee,

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Robin Hoskins, had reported defendant Fields’ bias to defendant Baca. Defendant Fields

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had actively campaigned for plaintiff Thomas’s opponent in the 2008 election; publicly

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criticized plaintiff Thomas to the media; filed a frivolous complaint with the State Bar

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against Thomas, which was dismissed; denounced plaintiff Thomas to the media the day

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before Election Day 2008; and had taken other public actions to demonstrate bias, in

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addition to taking other private actions evidencing bias known to defendants Mundell and

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Baca but currently unknown to plaintiffs.

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40. Four esteemed experts in legal ethics retained by the State stated that Fields was

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ethically required to recuse himself from the Stapley case. The State disclosed these

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expert opinions to defendants Mundell, Baca and Fields.

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41. Despite knowledge of defendant Fields’ bias, defendants Mundell, Baca and Fields

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conspired to retain Fields as the judge in the Stapley case, in violation of Arizona law,

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rules of court and the standard practices of the Maricopa County Superior Court.

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42. Defendants Mundell and Baca refused to grant MCAO a hearing on the State’s

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motion to remove Fields for bias. This action violated Arizona’s rules of court, which

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require a prompt hearing upon the filing of such a motion.

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43. In written rulings and statements, defendants Mundell and Fields improperly implied

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that MCAO attorneys had committed ethical violations simply by asking questions about,

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and then challenging, the selection and retention of defendant Fields for the Stapley case.

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In these actions, defendants Mundell and Fields revealed the forthcoming modus

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operandi of the Mundell-Fields faction, namely, to level false ethical allegations against

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MCAO attorneys, including but not limited to plaintiff Thomas, in order to intimidate

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prosecutors, illicitly protect defendant Stapley and the Board, and corruptly deprive

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plaintiff Thomas and other MCAO prosecutors of their license to practice law.

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44. In a series of actions commencing in December 2008, actions made in retaliation for

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the Stapley indictment and to illegally enrich defendants Irvine and Polsinelli, defendants

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Board, Board members, Smith, Sandi Wilson, Irvine and Polsinelli unlawfully usurped

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plaintiff Thomas’ authority to serve as legal counsel to the Board and to defend Maricopa

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County in civil actions, including county clients such as plaintiff Arpaio and MCSO.

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45. On December 31, 2008, Arpaio and Thomas filed a lawsuit challenging the Board’s

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illegal attempt to oust Thomas from his civil legal duties as Maricopa County Attorney.

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46. Defendants Irvine and Polsinelli acted as counsel for the Board in this civil action.

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They did not disclose to MCAO or the public that they were serving at the same time as

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attorneys for the Superior Court in the Court Tower matter.

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47. As she had done in the Stapley case, defendant Mundell personally selected the judge

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to hear this civil suit. Mundell chose another politically active retired judge, Donald

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Daughton, whose biases were known to her and other Superior Court Judges and

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employees, in an attempt to ensure an outcome favorable to the Board and the lawyers

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shared with the Board and detrimental to plaintiff Thomas and MCAO.

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48. On January 10, 2009, defendants Irvine and Polsinelli filed a pleading in Superior

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Court falsely claiming numerous conflicts of interest on the part of plaintiff Thomas and

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MCAO. Defendants Irvine, Novak and Polsinelli refused to disclose to the public their

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own numerous and genuine conflicts of interest as they were receiving payments of

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public funds, from defendant Board and the Maricopa County Superior Court, at a rate at

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or above $340 per hour.

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49. Known conflicts of interest by defendants Irvine, Novak and Polsinelli include

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serving simultaneously as counsel to both the Maricopa County Superior Court and the

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Board, as well as the general contractor, on the Court Tower project and transactions;

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advising defendant Board on alleged conflicts of interest by plaintiff Thomas and MCAO

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and then accepting legal work and compensation from the Board based on Irvine’s

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alleged finding that conflicts existed; representing private parties in actions against

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defendant Board without a proper waiver of said conflict; representation of Conley

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Wolfswinkel, a business associate of defendant Stapley, Wolfswinkel business interests,

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and defendant Stapley himself and/or Stapley business interests; representing defendant

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Board in quashing grand-jury subpoenas decided before defendant Donahoe in criminal

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investigations in which defendants Irvine, Novak and Polsinelli knew they were targets of

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same; and filing a lawsuit and request for orders before defendant Donahoe to unlawfully

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shield themselves and county officials and employees from any criminal investigation or

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prosecution by Maricopa County prosecutors, thereby seeking to unlawfully prevent

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plaintiff Arpaio from submitting criminal investigations and cases to Maricopa County’s

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duly elected prosecutor.

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50. On February 6, 2009, in response to a motion filed by the Board and defendants

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Novak, Irvine and Polsinelli, defendant Donahoe quashed a grand-jury subpoena into

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expenditures for the Court Tower project. Defendant Donahoe ignored state law and

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disqualified MCAO from the investigation in order to hinder and effectively terminate it.

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At the time of his ruling, defendant Donahoe had succeeded defendant Baca as Presiding

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Criminal Judge, and he serves in this position at the pleasure of defendant Mundell.

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51. Defendant Donahoe’s order did not disclose the attorney-client relationship that

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existed between the Superior Court, the Board and defendants Irvine, Novak and

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Polsinelli on the very same Court Tower project.

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52. The Donahoe order falsely accused plaintiff Thomas of a conflict of interest. This

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claim was made in an attempt to intimidate county prosecutors and improperly end the

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investigation. The ruling ignored Arizona statutes and rules of ethics governing both

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attorneys and judges. Peter Jarvis, one of the nation’s leading experts in legal ethics,

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filed an affidavit avowing there was no conflict of interest on the part of plaintiff Thomas

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or MCAO.

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53. News of the Donahoe order was leaked to a criminal defense attorney representing

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defendant Stapley hours before it was released to the public or the State. MCAO

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possesses written evidence of this improper communication. This sharing of confidential

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information among the parties demonstrated the concerted nature of defendants’ actions

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to impede investigation and prosecution of said matters.

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54. On February 25, 2009, attorneys for Wolfswinkel, a convicted felon and business

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partner of defendant Stapley, filed a Motion to Controvert a Search Warrant in Superior

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Court challenging a search warrant served by MCSO on Wolfswinkel’s businesses. The

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pleading in Superior Court was facially and procedurally improper, as the search warrant

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was issued by a Maricopa County Justice Court and not the Superior Court, and the

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motion accordingly should have been filed in Justice Court. Nevertheless, defendant

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Donahoe, who somehow learned of the filing almost immediately, improperly assigned

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the matter to himself the day after filing and set a hearing.

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55. Defendant Irvine has worked as the attorney for Wolfswinkel and/or his businesses

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or businesses of Wolfswinkel’s relatives. Despite requests from MCAO for disclosure,

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Irvine has refused to disclose to MCAO and the public the nature, extent and current

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status of his representation of and relationships with Wolfswinkel, said corporate entities,

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and defendant Stapley.

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56. On February 26, 2009, defendant Swanson filed a pleading that urged a Superior

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Court Judge to impose personal sanctions on the MCAO prosecutor handling the Stapley

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case. Defendant Swanson filed this pleading at the behest of defendant Board, Board

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members, and defendants Smith and Sandi Wilson. This pleading was filed after MCAO

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and MCSO had attempted to obtain a transcript of a deposition of Wolfswinkel taken in a

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civil case.

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57. During oral argument in court, defendants Irvine and Novak stood in the courtroom

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alongside Stapley defense counsel and laughed at the prosecutor as she was verbally

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assailed. The Arizona Court of Appeals later held that the MCAO prosecutor did nothing

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wrong and overturned sanctions against MCAO. The Swanson filing was meant to

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intimidate, and it corruptly inured to the benefit of Stapley and Wolfswinkel in a matter

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in which the Board was not a party.

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58. On approximately March 4, 2009, an anonymous State Bar complaint was filed

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against plaintiff Thomas for his prosecution of defendant Stapley. Upon information and

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belief, the complainant was defendant Novak, who was then employed as counsel for the

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Board and held the position of President of the State Bar. The State Bar of Arizona

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regulates the practice of law in Arizona and may suspend or revoke attorney licenses.

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59. The Arizona Supreme Court ruled in 2008 in Thomas v. State Bar of Arizona that

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State Bar investigations then involving plaintiff Thomas were to be handled by an 23

investigator acting independently of the State Bar. However, the investigator hired for 24

the Stapley investigation, retired judge Rebecca Albrecht, did not act independently. 25

Instead, she circulated a draft dismissal letter soliciting comment among Bar counsel and 26

officers, including upon information and belief defendant Novak, thereby coordinating 27

her efforts with Novak in violation of the Supreme Court guidelines. Albrecht’s 28

dismissal letter contained admonitory language that ignored state law and was 12

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contradicted by a later ruling by defendant Fields, but which served to intimidate further

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investigation or prosecution of the defendants. Novak obtained this outcome corruptly

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and for the benefit of defendant Stapley and other Board members in exchange for

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compensation by defendant Board.

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60. On March 6, 2009, defendant Smith falsely accused plaintiff Thomas of a conflict of

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interest for his attempt to enforce Arizona’s public-records laws and denied him public

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monies to hire an attorney to challenge the Board’s violation of these laws. Defendants

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Smith and Swanson have repeatedly refused to authorize payments to outside law firms

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retained by MCSO or MCAO to challenge unlawful actions by defendant Board, a pattern

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and practice that continues to the present.

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61. On March 6, 2009, defendant Smith threatened to seek recovery of legal fees from

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plaintiff Thomas and his wife if Thomas sued defendant Board when it acted unlawfully.

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The threat included seeking “reimbursement for internal staff time.” This threat was

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made despite defendant Board’s open and ongoing actions in violation of law and

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Thomas’ legal duty, as Maricopa County Attorney, to sue to correct such violations.

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62. On August 25, 2009, defendant Fields dismissed all misdemeanor counts from the

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indictment of defendant Stapley. As a result of this improper ruling, which offered

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reasoning never before embraced by an Arizona court, prosecutors were forced to dismiss

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the rest of the Stapley case.

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63. On August 26, 2009, Judge Daughton upheld defendant Board’s illegal takeover of

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MCAO’s civil functions. His brief minute entry, which cited no basis in law for his

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conclusions, has wrought havoc in Maricopa County government and deprived plaintiff

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Arpaio of the civil legal services from MCAO to which he is entitled by state law. This

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ruling improperly inured to the benefit of defendants Board and Polsinelli, which

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appeared in this legal action on behalf of defendant Board despite their simultaneous

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service as attorneys for the Superior Court.

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64. In his minute entry, Judge Daughton found plaintiff Thomas had violated the rules of professional responsibility governing attorneys. In neither his minute entry nor final 13

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judgment did Judge Daughton specify how plaintiff Thomas had violated these rules. In

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oral argument prior to issuing his final judgment, Judge Daughton was unable to state

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what plaintiff Thomas had done to violate the ethical rules, despite being asked directly

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and repeatedly by plaintiff Thomas’ counsel in open court. Judge Daughton’s finding of

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a violation of the rules of professional responsibility against plaintiff Thomas, which he

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could not explain or defend, was made for the purpose of illicitly aiding defendants

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Board, Irvine and Polsinelli and in furtherance of the efforts of the Mundell-Fields faction

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to encourage the State Bar to take adverse and unjust action against plaintiff Thomas and

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potentially other MCAO attorneys.

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65. Throughout 2008 and 2009, despite numerous requests for public records under

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applicable statutes on various topics by both plaintiffs, Maricopa County failed to provide

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records of public expenditures and other matters to MCAO and MCSO. Instead,

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defendant Board adopted policies to prevent the plaintiffs from obtaining public records.

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Judge Daughton upheld these denials in violation of Arizona’s public-records statutes

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with a ruling that ignored Arizona law and that was intended to aid defendants Board,

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Irvine and Polsinelli.

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66. On August 30, 2009, Maricopa County employees who served as project managers

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for the Court Tower project publicly questioned the need for, and propriety of, hiring

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defendants Irvine and Polsinelli. In interviews with the media, one project manager

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noted defendant Irvine and attorneys in his firm seemed to have been hired simply to

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“take minutes” in meetings. Another manager said he saw “no need” to hire them.

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These county employees work for defendants Board, Smith and Sandi Wilson.

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67. Despite the classic signs of graft that have come to light regarding the Court Tower

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project, defendant Board has paid defendant Polsinelli at least $1.2 million in legal fees

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over the last fiscal year. This figure excludes what the Superior Court has paid them

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separately for the Court Tower project.

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68. On October 19, 2009, defendants Smith and Swanson prepared and/or released a

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written memorandum for defendants Smith, Board and Board members, seeking to justify

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the Board’s refusal to approve special prosecutors selected by plaintiff Thomas. This

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memorandum used groundless legal reasoning never previously used by the Board to

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reject a special-prosecutor appointment, and did so in order to block the proper

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appointment of special prosecutors to handle potential criminal investigations and

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prosecutions involving the Board, Board members, and other county officials and

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employees.

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69. On or about October 20, 2009, defendants Smith and/or Swanson made false

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statements to the media regarding MCAO’s attempt to appoint special prosecutors. They

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claimed any possible prosecution of defendant Stapley was a “witch hunt,” that plaintiff

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Thomas was “playing politics,” and that said special prosecutors would be paid $900 an

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hour. These false statements were non-legal in nature and made for the purpose of

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intimidating prosecutors and corruptly advocating for defendant Stapley at taxpayer

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expense.

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70. On October 26, 2009, defendant Smith sent a letter to members of plaintiff Thomas’

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office demanding disclosures of information relating to “blogging” on the Internet or

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other discussions had by MCAO employees with anyone relating to people in Maricopa

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County, whether on personal or business time. Said demands constituted extortion of

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plaintiff Thomas and MCAO in that defendant Smith impliedly threatened to file a

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complaint with the State Bar if plaintiff Thomas and MCAO did not consent to his

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request. Fulfillment of defendant Smith’s request would have required violating the civil

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rights of MCAO prosecutors and employees under federal and state law.

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71. On or about November 2, 2009, defendant Wilcox told the media that defendant

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Board was not going to approved the requested special prosecutors.

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72. On November 6, 2009, defendant Novak sent an email to an attorney for plaintiff

25

Arpaio extorting a non-party to their action, plaintiff Thomas and MCAO, by threatening

26

to release a videotape of a minor vehicular accident involving an MCAO prosecutor in a

27

Maricopa County parking garage if plaintiff Arpaio did not withdraw his demand for

28

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1

videotape of the arrest of defendant Stapley in the same garage. Such demand corruptly

2

inured to the benefit of defendant Stapley.

3

73. On November 13, 2009, defendants Board, Irvine and Polsinelli filed a motion on

4

behalf of the Board and at taxpayer expense seeking an order from defendant Donahoe

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blocking plaintiff Thomas and MCAO from investigating or prosecuting any member of

6

defendant Board or any county employee for any crime. Said actions corruptly inured to

7

the benefit of defendants.

8

74. The above-described actions by defendants have served to unjustly enrich defendants

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Irvine, Novak and Polsinelli in violation of law.

10

75. The above-described actions by defendants have allowed the Board to cut $6 million

11

in funds from MCAO’s civil budget and oust MCAO from its rightful role in defending

12

county litigation. Said actions have deprived plaintiff Arpaio and other Maricopa County

13

officers of the counsel and law offices which, by law, are to represent him when he or

14

MCSO is sued.

15

76. On November 17, 2009, defendant Smith, on behalf of defendants Board, Board

16

members, Sandi Wilson and Swanson, filed a written complaint with the State Bar

17

against plaintiff Thomas and other MCAO prosecutors. The complaint cited the rulings

18

improperly obtained from defendant Donahoe and Daughton, along with the attempts to

19

coerce disclosure of private blogging information from plaintiff Thomas and MCAO, as

20

purported grounds for professional discipline. In filing this complaint, defendant Smith

21

perfected the coordinated efforts of defendants to corruptly deprive plaintiff Thomas and

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MCAO prosecutors of their license to practice law in Arizona.

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CLAIM FOR RELIEF

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(Liability for all defendants for violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) 18 U.S.C. §1962 et seq.)

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77. Plaintiffs reassert and incorporate by reference paragraphs 1-76 above and further allege: 16

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78. Defendants all constitute persons under 18 U.S.C. §1961. The defendants are

2

involved in an enterprise as they are all related by contract association, as a legal entity or

3

as a group of individuals associated in fact. These enterprises engage in or participate in

4

activities which affect interstate commerce including but not limited to hiring the out-of-

5

state National Center for State Courts as consultants and national firms as contractors on

6

the Court Tower project; participation in the National Association of Counties, of which

7

defendant Stapley was past president; federal funding received by Maricopa County and

8

used for some or all of the county operations discussed in this Complaint; and

9

participation in interstate programs such as interstate compact supervision by the Board,

10

its members and defendant judges.

11

79. Plaintiffs have suffered injury as set forth in paragraphs 1-76 as required under 18

12

U.S.C. §1964(c) based on the defendants prohibited activities in 18 U.S.C. §1962.

13

66. Defendants have engaged in conduct constituting a pattern of racketeering activity as

14

stated in the above referenced paragraphs and defined in 18 U.S.C. §1961(1)(A).. The

15

prohibited conduct is in violation of 18 U.S.C. §1962 (b), (c), and (d). This conduct

16

includes bribery and extortion as chargeable under state law, Arizona Revised Statutes

17

§§13-1804 and 13-2601 et seq., punishable by more than one year imprisonment, in that

18

the conduct described above has facilitated the taking of funds, property and/or

19

cognizable property interests from Maricopa County and State of Arizona taxpayers,

20

MCAO, MCSO, the plaintiffs, and employees of the plaintiffs.

21

80. The conduct of the defendants as outlined in the above paragraphs constitutes at least

22

two acts of racketeering activity and includes threats to hinder prosecution of those 23 24 25

involved in illegally giving or receiving county, state or federal funds; exposing other security and privacy concerns; and causing plaintiffs to part with funds, property or

26

cognizable property interests and legal services to which they were entitled by law. In 27 28

addition, the conduct complained of includes seeking to obtain any benefit from another

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1

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person upon a claim or representation that they can or will improperly influence the

2

action of a public servant, or a person who offers, confers or agrees to confer any benefit 3 4

upon a public servant with the intent to influence the public servant's vote, opinion,

5

judgment, exercise of discretion or other action in his or her official capacity as a public

6

servant or solicits, accepts or agrees to accept any benefit upon an agreement or 7 8

understanding that his or her vote, opinion, judgment, exercise of discretion or other

9

action as a public servant or party officer may thereby be influenced.

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81. The plaintiffs further assert that a conspiracy exists between the defendants to commit bribery and/or extortion by hindering the prosecution of county officers, employees or associates for the racketeering activities alleged. PRAYER FOR RELIEF

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Wherefore, plaintiffs pray for the following relief: 1. Judgment in its favor against all of the defendants in an amount triple the damages

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each has caused plaintiffs through their racketeering activity, pursuant to 18

19

U.S.C. §1964(c), and specifically sufficient damages to make whole plaintiff

20

Arpaio, a consumer of legal services corruptly denied those services from MCAO

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due to the coordinated efforts of defendants; 2. Costs and attorneys’ fees incurred in pursuing this action pursuant to Federal Rules of Civil Procedure, Rule 54; and/or 18 U.S.C. §1964;

25

3. Such relief as is necessary to allow plaintiffs Arpaio and Thomas to enforce the 26 27

criminal and civil laws of the State of Arizona without improper or corrupt

28

hindrance by defendants;

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4. Such relief as is necessary to protect plaintiffs and employees of MCAO and

2

MCSO from defendants’ actions and practices complained of herein; and 3 4

5. Any such other relief as this Court may deem just and proper.

5 6

DEMAND FOR A JURY TRIAL

7 8

Plaintiffs demand a jury trial pursuant to Federal Rules of Civil Procedure, Rule 38 (b).

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DATED this 1 day of December, 2009.

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ANDREW P. THOMAS MARICOPA COUNTY ATTORNEY

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By: s/ Lisa M. Aubuchon Lisa M. Aubuchon Deputy County Attorney

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