New Times files a prelude to a lawsuit against Sheriff Joe Arpaio, County Attorney Andy Thomas and a discredited ex-special prosecutor on behalf of its readers and the Constitution

"This is not a decision undertaken lightly," said Michael Lacey, executive editor of Village Voice Media, which owns New Times, and who, along with CEO Larkin, founded the paper. "We are not an organization, and Larkin and I are not individuals, that sue people. It's just not what we do. But I feel like if we don't do something, it's an invitation for this kind of behavior to continue."

The "behavior" to which Lacey referred was particularly chilling: a special prosecutor running amok, issuing overbroad and unconstitutional subpoenas aimed at the reading and browsing habits of citizens; a vendetta by Sheriff Joe Arpaio against New Times and its staff, the arrests of the paper's executives on petty charges in the middle of the night by members of the sheriff's clandestine Selective Enforcement Unit.

"What emerges is one of the most nakedly oppressive, conscience-shocking assaults on a free press by police and prosecutors in U.S. history," observes New Times lawyer Michael Manning in the Notice of Claim.

By law, the notice had to be filed within 180 days of the culmination of the events described here and had to contain a damages amount. New Times is asking for $15 million in damages if the matter is settled before April 15, the end of a 60-day period in which the defendants — Arpaio, Thomas and Wilenchik — must reply. "If New Times is required to pursue litigation, the settlement demand will increase," the notice warns.

Earlier in the day on which Lacey and Larkin were arrested at their homes and bundled off to jail, County Attorney Andrew Thomas' handpicked special prosecutor Dennis Wilenchik essentially demanded that New Times be bankrupted.

Wilenchik had asked Superior Court Judge Anna Baca to impose crushing fines against the paper for daring to publish an October 18 story ("Breathtaking Abuse of the Constitution") about his grand jury subpoenas seeking vast, detailed information about New Times' readers. For this misdemeanor, Wilenchik not only wanted the story's authors, Lacey and Larkin, and their lawyers arrested, he wanted Baca to assess fines of $10,000 for every hour that New Times refused to take the grand jury story off newspaper racks and the Internet. In the course of a year, the fines would have totaled about $90 million.

To get a better handle on the enormity of Wilenchik's demand, consider that New Times bills about $14 million annually, out of which printing, rent, supplies, salaries, benefits, and taxes must be paid.

Wilenchik's gambit was not an aberration. After his appointment as special prosecutor, he continually upped the ante in his extra-constitutional game of brinkmanship. No grand jury was ever impaneled during the affair. Rather, as Lacey observed in a subsequent column ("He Just Doesn't Get It," November 1, 2007), Wilenchik "anointed" himself the grand jury in power-mad defiance of state law. The law holds that a prosecutor must notify the grand jury foreman and the presiding judge within 10 days of issuing any subpoenas.

"Wilenchik did neither," New Times' Notice of Claim states. "The grand jury was nothing more than an empty prop to Wilenchik." Accordingly, it was not the legal system that put the brakes on this rogue prosecutor; it was a public incensed over the news of the Lacey-Larkin arrests. County Attorney Thomas, Wilenchik's former employee at the law firm of Wilenchik & Bartness, grudgingly called a press conference at his office on October 19, the day after the arrests, and fired Wilenchik as special prosecutor.

"We are not going to proceed with this investigation," stated Thomas, before a packed room of reporters. "There is a right way and a wrong way to bring a prosecution and to hold people accountable for their offenses. And what happened here was the wrong way. I do not condone it. I do not defend it. And so it ends today."

Thomas nervously hedged his mea culpa. He would not apologize to New Times, instead insisting that the newspaper apologize to Arpaio for publishing his home address online, even though Arpaio's address remains readily available on government Web sites, such as those of the Maricopa County Recorder's Office and the Arizona Corporation Commission.

Though Thomas fired Wilenchik from handling future criminal matters for the County Attorney's Office, he retained him as counsel in civil matters. As a result, Wilenchik & Bartness continues to rack up county money.

As the notice against Wilenchik and the others explains, Wilenchik's lucrative stint representing the county appears to be quid pro quo. Wilenchik employed Thomas at his law firm during the time Thomas was first running for county attorney in 2004. Yet there's no proof available that Thomas ever billed legal work for the firm. Since Thomas took office, Wilenchik's firm has banked $2.4 million — and counting — for legal work for the county.

Speaking to the New York Times, ASU legal scholar James Weinstein labeled Wilenchik's subpoenas seeking information on New Times' readers "grossly, shockingly, breathtakingly overbroad" and "a case of harassment of the press." The path to the issuance of these subpoenas was a lengthy and circuitous one.

In mid-2004, Arpaio was in the midst of a pitched and ugly primary against challenger Dan Saban, whom MCSO officers smeared with the ugly and untrue allegation that he had raped his adoptive mother, Ruby Norman. Meanwhile, New Times writer John Dougherty was making serious inquiries into various aspects of Arpaio's rule in Maricopa County. He sought public records on the Saban investigation, information on inmate deaths, personnel files on certain sheriff's deputies, and information on the sheriff's personal real estate investments.

In a July 1, 2004 column, "Sheriff Joe's Real Estate Game," Dougherty revealed that Arpaio had invested $690,000 in cash in two real estate holdings in Scottsdale and Fountain Hills. Dougherty wondered if Arpaio was hiding ill-gotten gains, because information about this commercial property was redacted under a state law aimed at protecting law enforcement officials from harm. The law was meant to allow police officers to keep their home addresses out of the public eye for obvious reasons, but Arpaio misused the statute so that it hid most information about his commercial real estate. At the same time, Arpaio's Fountain Hills home address was available on myriad public and private Internet sites.

Dougherty noted that $690,000 in cash was a lot for a public official to invest, considering that Arpaio made about $78,000 a year, along with federal Drug Enforcement Agency civil service retirement pay of about $65,000. A week later, Dougherty wrote in another column about the real estate ventures again ("Stick It to 'Em!"). At the column's conclusion, he listed Arpaio's home address to illustrate the irony of its being so readily available while his commercial property information was hidden.

Months later, New Times learned that the sheriff was seeking to have New Times prosecuted under another state law that made it unlawful to publish a law enforcement official's home address on the World Wide Web.

The law was a throwback to a time when the Internet was considered newfangled technology. While making it a Class 5 felony to reproduce such a home address on the Web, the law made no sanctions against such publication in newspapers and magazines or on TV and radio. Indeed, even putting a law officer's address on a billboard near his neighborhood would be perfectly legal.

A required element of the Internet law was that the publication of an officer's address must cause "an imminent and serious threat" that was "reasonably apparent" to the publisher.

When Arpaio first sought New Times' prosecution under the arcane statute, then-County Attorney Rick Romley declined to prosecute. There seemed to be no real threat to the sheriff — though his top deputies have been fixated on the notion that "America's toughest sheriff" could easily be the target of assassination.

It's been as though his staff believes that, without anybody trying to kill the sheriff, Arpaio's hard-on-crime policies lose credibility. So the MCSO hasn't been above manufacturing a plot to make the boss look like a tough guy.

In 1999, Arpaio and his chief deputy, David Hendershott, attempted to frame 18-year-old James Saville in a phony bomb plot supposedly aimed at Arpaio ("The Plot to Assassinate Arpaio," August 5, 1999). TV reporters were called ahead of time to chronicle the teenager's arrest outside an Italian restaurant where Arpaio was dining. Saville's lawyer noted the obvious entrapment, and Saville was unanimously acquitted by a jury after the MCSO's unscrupulous antics were aired in court.