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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 10 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 SANDRA AND PAUL WILSONS VERIFIED SECOND AMENDED COMPLAINT Plaintiff,

11 Gary Donahoe and Cherie Donahoe, husband and wife, 12 Plaintiffs, 13 v. 14 Sheriff Joseph Arpaio and Ava Arpaio, 15 husband and wife; et. al., 16 17 18 19 v. 20 Sheriff Joseph Arpaio and Ava Arpaio, 21 husband and wife; et. al., 22 Defendants. Susan Schuerman, Defendants.

23 Sandra Wilson and Paul Wilson, husband and wife, 24 Plaintiffs, 25 v. 26 Sheriff Joseph Arpaio and Ava Arpaio, 27 husband and wife, et al.; ANDREW THOMAS and ANNE THOMAS, 28
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husband and wife; LISA AUBUCHON 1 and PETER R. PESTALOZZI, wife and husband; DEPUTY CHIEF DAVID 2 HENDERSHOTT and ANNA 3 HENDERSHOTT, husband and wife; PETER SPAW and JANE DOE SPAW, 4 husband and wife; MARICOPA COUNTY, a municipal entity, and JOHN 5 DOES I-X; JANE DOES I-X; BLACK CORPORATIONS I-V; and WHITE 6 PARTNERSHIPS, I-V 7 8 Defendants.

Conley D. Wolfswinkel, a single man, 9 et al., 10 11 v. 12 Sheriff Joseph Arpaio and Ava Arpaio, husband and wife; et. al., 13 Defendants. 14 15 Stephen Wetzel and Nancy Wetzel, husband and wife, 16 Plaintiffs, 17 v. 18 Sheriff Joseph Arpaio and Ava Arpaio, 19 husband and wife; et. al., 20 Defendants. 21 Mary Rose and Earl Wilcox, wife and 22 husband, 23 24 v. 25 Sheriff Joseph Arpaio and Ava Arpaio, husband and wife; et. al., 26 Defendants. 27 28 2
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Plaintiffs,

Plaintiffs,

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Plaintiffs Sandra and Paul Wilson, for their Verified Second Amended

2 Complaint (the Complaint) against Defendants, hereby allege as follows: 3 4 1. JURISDICTIONAL ALLEGATIONS This Complaint alleges violations of the First, Fourth, Fifth, and

5 Fourteenth Amendments to the United States Constitution and 42 U.S.C. 1983. This 6 Court has jurisdiction over Plaintiffs federal law claims pursuant to 28 U.S.C. 1331. 7 Pursuant to 28 U.S.C. 1367(a), this Court has supplemental jurisdiction over 8 Plaintiffs claims brought under Arizona law. 9 2. Pursuant to 28 U.S.C. 1391(b), venue in this Court is proper. All of the

10 parties are residents of Maricopa County, Arizona, and the events underlying this 11 lawsuit occurred in Maricopa County. 12 13 3. PARTIES Plaintiffs Sandra Wilson (Sandi) and Paul Wilson are a married couple

14 residing in Maricopa County, Arizona. At all relevant times, Sandi served as Deputy 15 County Manager of Maricopa County. 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 3
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1 Attorneys Office (MCAO), from January 3, 2005, to April 6, 2010. At all times 2 while the Maricopa County Attorney, Thomas was acting under color of law. After 3 Thomas resigned as County Attorney, the misconduct alleged herein was done for his 4 personal benefit. 5 8. Defendants Lisa Aubuchon (Aubuchon) and Peter Pestalozzi are a

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

10 Aubuchon was a Maricopa County Deputy County Attorney from September 1996 to 11 September 21, 2010, when she was terminated based, in part, on the facts that form the 12 allegations contained in this Complaint. At all times while acting as a Deputy Maricopa 13 County Attorney, Aubuchon was acting under color of law. 14 10. Defendants David Hendershott (Hendershott) and Anna Hendershott are

15 a married couple residing in Maricopa County, Arizona. All of Hendershotts alleged 16 acts were done for the benefit and furtherance of the Hendershotts marital community. 17 11. Hendershott is named in both his official and individual capacities.

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

23 Maricopa County, Arizona. All of Spaws alleged acts were done for the benefit and 24 furtherance of the Spaws marital community. Jane Doe Spaws true name is unknown 25 at this time, and will be substituted upon discovery of the same. 26 13. Spaw is named in both his official and individual capacities. Spaw is a

27 Maricopa County Deputy County Attorney. At all times while acting as a Deputy 28 Maricopa County Attorney, Spaw was acting under color of law. 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 MCAOs 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 Arpaios 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. In January 2009, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott

5 were investigating the BOS for, among other things, its legislative decisions regarding 6 the Court Tower Project and a sweep for listening devices in certain County offices 7 (known as the Bug Sweep). 8 23. Sandi came to be a target for Thomas, Aubuchon, Sheriff Arpaio, and

9 Hendershott because, in making recommendations to the BOS on how to balance the 10 Countys budget, she communicated to the BOS that the Court Tower could continue 11 because it was funded with non-reoccurring funds, but that the MCAO and MCSO 12 budgets would have to be cut, along with the budget of all other County agencies since 13 there were ongoing operational funds. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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COUNT I Malicious Prosecution and Abuse of Process in Violation of 42 U.S.C. 1983: Thomas, Aubuchon, Sheriff Arpaio, Hendershott, and Spaw 24. herein. 25. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts investigation of Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

the Court Tower Project and Bug Sweep included the issuance of subpoenas and record requests based on their belief that Sandi paid vendors authorized by the BOS. These requests led the BOS to retain independent outside counsel to represent its interests relating to the subpoenas and records requests. 26. In December 2009, at the behest of Sheriff Arpaio and Hendershott,

Thomas and Aubuchon filed a federal civil racketeering lawsuit, Arpaio et al. v. Maricopa County Board of Supervisors, et al., 2:09-cv-02492-GMS (D. Ariz. 2009) (the RICO Lawsuit), that named Sandi as a defendant.

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27.

Prior to commencing the RICO Lawsuit, Spaw received a legal opinion on

2 its merit from the Ogletree Deakins law firm (Ogletree), which had been retained by 3 Hendershott on behalf of the MCSO. Ogletree cautioned that the proposed racketeering 4 claim risked incurring sanctions for unfounded, vexatiously motivated litigation. 5 28. Ogletrees opinion was shared with Thomas, Aubuchon, Sheriff Arpaio,

6 and Hendershott before the RICO Lawsuit was commenced. 7 29. Additionally, Thomas was told by his Chief Deputy, Phil MacDonnell,

8 that [t]he idea of a civil RICO case based on current evidence is unfounded. Mr. 9 MacDonnell also wrote to Thomas, Peter Spaw, our RICO expert, thinks [the RICO 10 Lawsuit] makes no sense. 11 30. The RICO Lawsuit labels Sandi a corrupt Racketeer based on: (1) her

12 recommendations to the BOS about budget cuts; (2) her execution of the BOSs 13 discretionary directives to process payments to independent outside counsel retained by 14 the BOS; and (3) Sheriff Arpaio, Hendershott, Thomas, Aubuchons belief that she had 15 paid a contractor to conduct the Bug Sweep. 16 17 31. 32. Expenditure of the these funds was authorized by the BOS. In December 2009, after the RICO Lawsuit was filed, it was assigned to

18 Rachel Alexander (Alexander) to prosecute, with Spaw as her supervisor. Spaw and 19 Alexander opposed motions to dismiss and filed an amended complaint in the RICO 20 Lawsuit. 21 33. The RICO lawsuit was instituted, prosecuted, and maintained without

22 probable cause, with the purpose of depriving Sandi of her property, and with malice 23 it was intentionally filed for the ulterior purpose of punishing Sandi for her 24 recommendations to the BOS and the execution of her duties, as instructed by the BOS, 25 all in violation of and reckless disregard to Sandis constitutional rights, including the 26 First, Fourth, Fifth, and Fourteenth Amendments. 27 34. The RICO Lawsuit terminated in Sandis favor when it was dismissed on 7
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28 March 11, 2010.

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1 2 3 4 5 herein. 6

35.

As a direct and proximate cause of the these acts, Sandi suffered damages. COUNT II Violations of 42 U.S.C. 1983 - Supervisor Liability: Spaw

36.

Plaintiffs reincorporate the foregoing allegations as though fully set forth

37.

At all relevant times, Spaw was acting under color of state law as a

7 MCAO prosecutor. 8 38. Spaw knew, from his own review of the materials in the RICO Lawsuit

9 and from research provided to him from outside counsel, that the RICO Lawsuit lacked 10 a factual or legal basis. 11 39. Upon information and belief, Spaw further knew, or reasonably should

12 have known, that Thomas, Aubuchon, and Sheriff Arpaio were pursuing the RICO 13 Lawsuit for the ulterior purpose of unlawfully retaliating against Sandi based on her 14 budget recommendations to the BOS, and carrying out the BOSs directions, actions for 15 which she is immune from suit. 16 40. Despite this knowledge, Spaw appeared as counsel in, and supervised, the

17 prosecution of the RICO Lawsuit. 18 41. As a result of Spaws failure to properly supervise Alexander, or terminate

19 the RICO Lawsuit, the constitutional violations set in motion by Thomas, Aubuchon, 20 Sheriff Arpaio, and Hendershott were exacerbated. 21 42. As a direct and proximate result of Spaws conduct, Sandi suffered

22 damages. 23 24 25 26 27 28 8
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COUNT III Malicious Prosecution and Abuse of Process in Violation of Arizona Law: Thomas, Sheriff Arpaio, Aubuchon, Hendershott, Maricopa County 43. herein. Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

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44.

In addition to having violated Sandis federally established rights, as set

2 forth above, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott are also liable, under 3 Arizona state law, for the torts of malicious prosecution and abuse of process. 4 45. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott were acting, at all

5 relevant times, in the course and scope of their employment and, therefore, Maricopa 6 County is vicariously liable for their actions in violation of Arizona law. 7 8 9 10 11 herein. 12 47. In January 2010, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott COUNT IV Retaliation for the Exercise of First Amendment Rights in Violation of 42 U.S.C. 1983: Thomas, Aubuchon, Sheriff Arpaio, and Hendershott 46. Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

13 retaliated against Sandi for her exercise of her constitutional rights and the execution of 14 her duties as directed by the BOS by jointly deciding to initiate a grand jury 15 investigation targeting Sandi (the Grand Jury Investigation). 16 48. In the Grand Jury Investigation, Sandi was alleged to have committed

17 felonies based on her recommendations to the BOS and her execution of the BOSs 18 directions and her alleged issuing payments to vendors authorized by the BOS. 19 49. Thomas appointed Aubuchon to be the prosecutor for the Grand Jury

20 Investigation. 21 50. At the direction, or with the approval of, Sheriff Arpaio, Hendershott and

22 another MCSO witness testified at the Grand Jury Investigation against Sandi. Their 23 testimony was false, or otherwise given in reckless disregard of Sandis constitutionally 24 protected rights, as Aubuchon knew when eliciting the testimony. 25 51. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott knew, or recklessly

26 disregarded the fact, that there was no probable cause to support the Grand Jury 27 Investigation because, among other things, the Yavapai County Attorney, Sheila Polk, 28 had previously informed them in September 2009, of the lack of a basis to believe any 9
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1 crime had been committed concerning the cases that had been referred to her in April 2 2009, which formed the basis of the allegations concerning Sandi. 3 52. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott further knew, or

4 acted in reckless disregard of the fact, that Sandi was immune from prosecution based 5 on her exercise of her constitutional rights, and the execution of BOS directives in 6 processing payments. 7 53. Despite their knowledge of these facts, Thomas, Aubuchon, Sheriff

8 Arpaio, and Hendershott used the Grand Jury to investigate Sandi. 9 10 54. 55. On March 3, 2010, the Grand Jury voted to end the inquiry. On June 22, 2010, Sheriff Arpaio issued a press release publicly

11 demanding that not one penny be paid by County officials to settle bogus claims 12 asserted by Sandi, and others, that Arpaio announced were the subject of past and 13 pending investigations. (Emphasis added.) 14 56. On July 10, 2010, Sheriff Arpaio issued a press release, to which he

15 attached a letter written by Hendershott to County employee Peter Crowley, warn[ing 16 Crowley] that one of the pending felony investigations is on your direct supervisor 17 Sandi Wilson and cautioning that [a]ny disclosure of the evidence against her or other 18 members of the BOS . . . would be inappropriate. Hendershott further threatened 19 Crowly not to handover [sic] the criminal evidence, [which risked] compromising 20 these criminal investigations. 21 newspaper on July 10, 2011. 22 57. Sheriff Arpaio and Hendershott knew, or recklessly disregarded the fact, Hendershotts statements were published by a

23 that there was no probable cause to support an investigation of Sandi because she had 24 already been the subject of a Grand Jury Investigation which had voted to end the 25 inquiry. 26 58. Sandi was retaliated against for the exercise of her rights of freedom of

27 speech and to petition the government for the redress of her grievances. 28 10
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59.

Thomas, Aubuchon, Sheriff Arpaio, and Hendershott possessed an

2 impermissible motive to interfere with Sandis First Amendment rights. 3 60. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts conduct would

4 have chilled a citizen of ordinary firmness from future First Amendment activities. 5 61. But for their retaliatory motive against Sandi due to her exercise of her

6 First Amendment rights, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott would 7 not have engaged in the conduct alleged herein. 8 62. As a direct and proximate result of Thomas, Aubuchon, Sheriff Arpaio,

9 and Hendershotts conduct, Sandis constitutional rights were violated and she has 10 suffered damages. 11 12 13 14 15 herein. 16 64. On December 1, 2009, Thomas, as County Attorney, issued a press 63. Plaintiffs reincorporate the foregoing paragraphs as though fully set forth COUNT V Defamation and False Light in Violation of 42 U.S.C. 1983: Thomas and Sheriff Arpaio

17 release announcing that the RICO Lawsuit had been filed against Sandi. Thomas stated 18 that the racketeering laws permitted him to fight local corruption and that the 19 defendants had collectively engaged in illegal and criminal conduct in furtherance 20 of a corrupt purpose. 21 65. Sheriff Arpaio included a statement on the December 1, 2009 release,

22 stating that I took an oath to enforce all laws regardless of a persons stature and 23 position, powerful or not. I commend my Sheriffs Office deputies for conducting 24 professional investigations in spite of the pressures exerted by certain elected and 25 appointed officials in powerful positions. 26 66. On March 11, 2010, Thomas and Sheriff Arpaio held a press conference at

27 which Sheriff Arpaios counsel, Robert Driscoll, was also present. At the conference, 28 Thomas announced that he achieved a victory in the RICO Lawsuit, even though it 11
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1 had been dismissed the day before, because the only relief that would have been gotten 2 from the case would have been funding the further investigation into the possible 3 prosecution of the defendants in the RICO Lawsuit. 4 67. Driscoll, with the approval of Sheriff Arpaio and Thomas, said that the

5 goal of the RICO Lawsuit had been achieved because the Department of Justices 6 Public Integrity Section (DOJ) had allegedly agreed to investigate the RICO Lawsuit 7 defendants. Driscoll said that [t]he relief that we would be granted in [the RICO] case 8 would be essentially the relief we have now, which is someone [i.e., the DOJ] to 9 investigate and look into the evidence that has been produced. 10 68. Driscoll, Sheriff Arpaio, and Thomas knew that the DOJ had made no

11 such agreement. In fact, two days later, the DOJ rejected Driscolls characterization 12 stating, in writing, that it was dismayed to learn that Driscoll used as a platform for a 13 press conference information he received from the DOJ. The DOJ further explained 14 that it had only informed Driscoll that Thomas and Sheriff Arpaio could submit a tip, 15 like any other citizen, and the DOJ would evaluate the information, the same as it would 16 do with any citizens concern. 17 corrected their misstatement. 18 69. On June 22, 2010, Sheriff Arpaio, and Thomas (who had by then resigned Nevertheless, Sheriff Arpaio and Thomas never

19 as County Attorney),1 issued a press release stating that: 20 21 22 23 24 25 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 part of the basis of Plaintiffs claims against Thomas for defamation and false light 28 in violation of Arizona law. 12
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a. b.

There is evidence justify[ing] the Court Tower investigation and that claims to the contrary are false rhetoric; Also of concern is the fact that subordinates of Deputy County Manager Sandi Wilson, herself a claimant, reportedly have been attempting to retain an attorney as a mediator to settle these claims without any lawsuits having to be filed at all. . . .Wilson may also be attempting to settle other bogus and controversial lawsuits against the county to benefit attorney Michael Manning, counsel for several of these claimants;

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1 2 3 4 5 6 7 8 70.

c.

Some of these same individuals [who filed notices of claims against the Defendants] abused the powers of their public offices to shut down criminal investigations and prosecutions and/or otherwise improperly deny us such an opportunity for examination under oath; Not one penny should be paid to settle Sandis bogus claims and that Sandi and the other claimants were the subject of past and pending investigations. Thomas and Arpaio repeated the foregoing statements at a press conference later on June 22, 2010.

d.

e.

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

9 demanded that the County refuse to settle Sandis claim. Sheriff Arpaio wrote that 10 Sandis claims are frivolous on their face . . . [and] seem designed to obtain a payday 11 without [her] having to prove [her] allegations in a court of law. These claims appear 12 motivated by greed and a belief that friends, colleagues in county administration and 13 subordinates will provide a quick and substantial settlement without requiring [Sandi] to 14 file lawsuits which would demand proof and subject [Sandi] to testimony under oath. It 15 has come to our attention that Assistant County Manager Sandi Wilson, herself a 16 claimant . . . reportedly has encouraged her subordinates in the County Risk 17 Management Office to contact local attorneys seeking a mediator to prematurely settle 18 totally unrelated cases . . . . 19 71. Each of the foregoing statements was published to third parties in a

20 manner that an ordinary person would understand that references to the RICO Lawsuit 21 defendants, the parties involved in the Grand Jury Investigation, the parties involved in 22 the Court Tower investigation, and the parties who had submitted notices of claim, are 23 references to Sandi. 24 72. Thomas and Sheriff Arpaio knew their respective statements were false They

25 when said, or at a minimum acted with reckless disregard to their falsity.

26 knowingly or recklessly placed Sandi in a false light by making statements that they 27 knew would injure her professional reputation and stature. 28 13
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73.

Thomas and Sheriff Arpaios statements placed Sandi in a false light,

2 which would be highly offensive to a reasonable person. 3 74. Each of the foregoing statements were made in retaliation for Sandis

4 exercise of her First and Fourteenth Amendment constitutional rights. 5 75. Thomas and Sheriff Arpaios statements would chill a person of ordinary

6 firmness from future First Amendment activities. 7 76. As a direct and proximate result of the statements by Sheriff Arpaio and

8 Thomas, Plaintiffs constitutional rights were violated and have been damaged. 9 10 11 12 13 herein. 14 78. Based on the allegations of 63-76, Thomas and Sheriff Arpaio are 77. Plaintiffs reincorporate the foregoing paragraphs as though fully set forth COUNT VI Defamation and False Light in Violation of Arizona Law: Thomas, Sheriff Arpaio, and Maricopa County

15 liable for false light and defamation in violation of Arizona law. 16 79. Sheriff Arpaio was acting, at all relevant times, in the course and scope of

17 his employment and, therefore, Maricopa County is vicariously liable for his actions in 18 violation of Arizona law. 19 80. Thomas was acting at all times, other than that specified in 69, in the

20 course and scope of his employment and, therefore, Maricopa County is vicariously 21 liable for his actions in violation of Arizona law. 22 23 24 25 26 27 28 herein. 82. By committing the acts alleged above, Thomas, Aubuchon, Sheriff 81. Plaintiffs reincorporate the foregoing allegations as though fully set forth COUNT VII Violations of 42 U.S.C. 1983 Substantive Due Process: Thomas, Aubuchon, Sheriff Arpaio, and Hendershott

Arpaio, and Hendershott deprived Sandi of her constitutionally-protected rights through 14


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1 actions so far outside the limits of legitimate governmental action that no process could 2 cure the deficiency. 3 83. Additionally, Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts

4 actions against Sandi were based purely on their animus against her based on her 5 perceived support of the BOS, in reckless disregard of her constitutional rights. 6 84. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts conduct therefore

7 was arbitrary and shocks the conscience. 8 85. As a direct and proximate result of Thomas, Aubuchon, Sheriff Arpaio,

9 and Hendershotts conduct, Sandis constitutional rights were violated and she suffered 10 damages. 11 12 13 14 herein. 15 87. Former County Attorney Thomas was a policymaker for Maricopa COUNT VIII Violations of 42 U.S.C. 1983 - Municipal Liability: Maricopa County 86. Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

16 County. At material times, he had the ultimate authority and responsibility to establish 17 policies, practices, customs, procedures, and protocols for the MCAO. He also had the 18 obligation to properly supervise members of the MCAO. 19 88. Thomas actions and inactions, as set forth above, including initiating and

20 ratifying malicious investigations and civil cases against Sandi, are acts upon which 21 Maricopa County may be found liable under 42 U.S.C. 1983. 22 89. Sheriff Arpaio is an official policymaker for Maricopa County. He has

23 the ultimate authority and responsibility to establish policies, practices, customs, 24 procedures, and protocols for the MCSO. 25 supervise members of the MCSO. 26 90. Sheriff Arpaios actions and inactions, as set forth above, including He also had the obligation to properly

27 initiating and ratifying malicious investigations and prosecutions against Sandi, are acts 28 upon which Maricopa County may be found liable under 42 U.S.C. 1983. 15
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91.

Thomas and Sheriff Arpaio, by delegating their authority to Aubuchon

2 and Hendershott, respectively, had customs, policies, and procedures of permitting and 3 encouraging Aubuchon and Hendershott to initiate investigations and prosecutions in 4 order to retaliate against their political perceived opponents and punish citizens for their 5 exercise of their constitutional rights. 6 92. Sheriff Arpaio and Hendershott encouraged their investigators to make

7 false statements in sworn affidavits that Sheriff Arpaio and Hendershott knew would be 8 filed with the courts. For example, at a MACE Unit meeting in March 2009,

9 Hendershott and Aubuchon informed their investigators that they wanted to obtain a 10 search warrant to search the BOS offices following an article in the Arizona Republic 11 about the Bug Sweep. Aubuchon directed MCSO Lt. Rich Burden to use creative 12 writing in drafting the search warrant, saying that it would be issued if they put fluff 13 above, fluff below and then took it to a particular justice of the peace for issuance. Lt. 14 Burden openly refused to include false statements in a search warrant affidavit as 15 Aubuchon had directed. Aubuchon subsequently complained to Hendershott, and

16 MCSO employees complained to Arpaio. Hendershott learned of the complaints. In 17 retaliation, Lt. Burden and the other complaining MCSO employees were transferred 18 out of the MACE Unit shortly thereafter. The remaining MCSO employees understood 19 this as a sign that Arpaio and Hendershott wanted the MCSO employees on the MACE 20 Unit to follow Hendershott and Aubuchons directives, with no questions asked. 21 93. As alleged herein, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott,

22 independently and in concert with one another, implemented policies, customs, or 23 procedures which: authorized, approved, condoned, and/or ratified unconstitutional civil 24 and/or criminal investigations. 25 94. As the direct and proximate result of the wrongful conduct of Thomas,

26 Aubuchon, Sheriff Arpaio, and Hendershott, Sandis constitutional rights were violated 27 and she has suffered harm and has been injured. 28 16
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1 2 3 4 herein. 5 96. 95.

COUNT IX Defamation/False Light in Violation of Arizona Law: Thomas Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

After he resigned as Maricopa County Attorney, Thomas joined in Sheriff

6 Arpaios June 22, 2010, press release. 97. In addition, Thomas made the following additional defamatory statements 7 8 after he resigned as Maricopa County Attorney: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 d. c. b. a. On June 30, 2010, Thomas issued a press release in which he stated that Arpaio and Thomas released new evidence in support of their RICO lawsuit . . . . On July 14, 2010, Thomas wrote an article that was published on the Intellectual Conservative blog in which he reiterated his prior belief that the criminal investigations and RICO Lawsuit were justified: As a result of . . . misconduct by . . . [the] county officials [including Sandi], Arpaio and Thomas filed a federal lawsuit . . . . Instead of accepting responsibility for their deplorable conduct, they demand millions in taxpayer dollars. The reason? Because Sheriff Arpaio and former County Attorney Thomas sought to hold them accountable with a legitimate RICO suit . . . . They essentially stand to benefit from their own misconduct by filing these claims . . . against county law-enforcement officials who did their best to address their misbehavior. On July 20, 2010, Thomas issued a press release in which he stated that the County officials an implicit reference to Sandi have rigged the system so these insiders can receive payouts without having to testify under oath or convince a jury of the justice of their cause. Again, Thomas stated that the Maricopa County Sheriffs Office on June 22, 2010, released additional evidence not previously available supporting the . . . RICO lawsuit. On August 14, 2010, Thomas wrote an article called Grand Juries Found Reason to Indict 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 investigation into Sandi 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. 17

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98.

Each of the foregoing statements was published to third parties in a

2 manner that an ordinary person would understand that references to the RICO Lawsuit 3 defendants, the parties involved in the Grand Jury Investigation, the parties involved in 4 the Court Tower investigation, the Bug Sweep, and the parties who had submitted 5 notices of claim, are references to Sandi. 6 99. Thomas knew his statements were false when published, or at a minimum

7 acted with reckless disregard to their falsity, and that the statements would injure her 8 professional reputation and stature. 9 100. Thomas statements placed Sandi in a false light, which would be highly

10 offensive to a reasonable person. 11 101. Thomas knew, or recklessly disregarded the falsity of his statements, and

12 the false light in which Sandi would be placed. 13 102. As a direct and proximate result of Thomas statements, Plaintiffs have

14 been damaged. 15 16 17 18 19 herein. 20 104. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts actions in: (1) 103. Plaintiffs reincorporate the foregoing allegations as though fully set forth COUNT X Intentional Infliction of Emotional Distress: Thomas, Aubuchon, Sheriff Arpaio, and Hendershott, Maricopa County

21 defaming Sandi; (2) pursuing the RICO Lawsuit against her; (3) pursuing retaliatory 22 public investigations of Sandi, including but not limited to the Grand Jury Investigation; 23 were all acts in and of themselves, and taken together, that are extreme, outrageous, and 24 beyond all possible realms of decency and that shock the conscience. 25 105. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts acts were

26 intentionally aimed at causing Sandi and her husband extreme emotional distress and/or 27 physical injury and/or harm and were done in reckless disregard of the near certainty 28 that emotional distress and physical injury and/or harm would result from their conduct. 18
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106.

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

2 and Hendershotts intentional infliction of emotional distress, Sandi and her husband 3 have suffered severe emotional distress, adverse physical maladies and manifestations, 4 and physical injury and/or harm. 5 107. Defendants Thomas, Aubuchon, Sheriff Arpaio, and Hendershott were

6 acting, except as otherwise noted, in the course and scope of their employment and, 7 therefore, Maricopa County is vicariously liable for their actions in violation of Arizona 8 law. 9 10 11 12 13 herein. 14 109. The MACE Unit was an association-in-fact which Thomas, Aubuchon, 108. Plaintiffs reincorporate the foregoing paragraphs as though fully set forth COUNT XI Violations of Arizonas Racketeering Statute, A.R.S. 13-2314.04: Thomas, Aubuchon, Sheriff Arpaio, and Hendershott

15 Sheriff Arpaio, and Hendershott participated, controlled, managed, conducted, and/or 16 operated in order to retaliate against their political opponents, and for financial gain. 17 110. From approximately March 2008 until February 2010, Hendershott and

18 Aubuchon met concerning the MACE Units investigations and civil and criminal 19 prosecutions, and conspired as to who to target and how to target them. From time to 20 time, Thomas and Sheriff Arpaio attended those meetings and were each continually 21 updated on the MACE Units activities. 22 111. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott operated the MACE

23 Unit for financial gain in the following ways: (1) the MACE Unit was used to heighten 24 the appearance of public corruption permitting Sheriff Arpaio to raise money for the 25 Sheriffs Command Association Fund, which provided financing for Thomas and 26 Sheriff Arpaios election campaigns; (2) the same perception helped Thomas and 27 Sheriff Arpaio raise money from private donors for their political campaigns; and (3) 28 one of the MACE Units objectives was to attempt to force the BOS to eliminate the 19
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1 Court Tower Project and divert funds dedicated to it to the MCSO and MCAOs 2 budgets, which was the critical factor necessary for Thomas and Sheriff Arpaio to 3 exercise their power. 4 112. The MACE Unit specifically committed the following pattern of unlawful

5 acts, in addition to others, in violation of A.R.S. 13-2314.04 and A.R.S. 13-2312:2 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. 20
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a.

Theft by extortion. The MACE unit threatened to publicly investigate and prosecute members of the BOS if they: (1) cut MCAO or MCSO budgets, or (2) did not abandon the Court Tower Project. This is a violation of 13-1804(A)(5) and (7). 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 DOJ investigation. This is a violation of A.R.S. 13-2409. 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. 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. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott filed a civil complaint against a sitting judge, Gary Donahoe, to induce him to recuse himself from presiding over certain matters. These acts were in violation of A.R.S. 131804(A)(7). Theft by extortion. Sheriff Arpaio, and Hendershott filed a criminal complaint against Judge Donahoe, to induce him to recuse himself from presiding over certain matters. These acts were in violation of A.R.S. 13-1804(A)(7).

b.

c.

d.

e.

f.

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1 2 3 4 113.

g.

Theft by extortion. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott implicitly threatened physical harm to Judge Donahoe if he did not recuse himself from presiding over certain matters, 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).

Thomas, Aubuchon, Sheriff Arpaio and Hendershott violated A.R.S.

5 13-2312 and 13-2314.04 through the following pattern of unlawful acts that they 6 committed against Sandi: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21
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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 threatened to have the MACE Unit publicly investigate and prosecute members of the BOS and Sandi 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 Sandi complied with the demands. This is a violation of A.R.S. 13-2602(A) and 13-2606. 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 Sandi with criminal investigation and prosecution if she did not recommend to the BOS that the BOS not cut the MCAO or MCSO budgets. This is a violation 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 Sandi complied with the demands. This is a violation of A.R.S. 13-2602(A) and 13-2606.

b.

114.

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

VI, IX-X were committed by Thomas, Aubuchon, Sheriff Arpaio, and Hendershott in furtherance of the MACE Units activities, and therefore in violation of A.R.S. 132312 and 13-2314.04. 115. As a direct, proximate, and reasonably foreseeable result of the violations

of A.R.S. 13-2312 and 13-2314.04 by Thomas, Aubuchon, Sheriff Arpaio, and Hendershott, Sandi has sustained damage to her person, including her reputation, and extreme emotional distress.

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116.

All of Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts conduct

2 described in this Count constitute violations of A.R.S. 13-2312 and 13-2314.04. 3 They are each responsible for all violations of A.R.S. 13-2314.04 and the damages 4 stemming therefrom, due to their control of the MACE Unit pursuant to A.R.S. 135 2312. 6 117. Pursuant to A.R.S. 12-2314.04, Sandi is entitled to an award of treble

7 damages, in addition to her attorneys fees and costs. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22


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JURY TRIAL 118. Plaintiffs hereby request a trial by jury. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for damages for judgment, jointly and severally, against Defendants as follows: (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.

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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 25 26 27 28

RESPECTFULLY SUBMITTED this 21 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

23
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1 2 3 CERTIFICATE OF SERVICE

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