Stapley v. Pestalozzi
| Decision Date | 16 August 2013 |
| Docket Number | 12–16146.,Nos. 12–16145,s. 12–16145 |
| Citation | 733 F.3d 804 |
| Parties | Donald T. STAPLEY, Jr.; Kathleen Stapley, Plaintiffs–Appellees, v. Peter R. PESTALOZZI; Lisa Aubuchon, Defendants, and Andrew Thomas; Ann Thomas, Defendants–Appellants. Donald T. Stapley, Jr.; Kathleen Stapley, Plaintiffs–Appellees, v. Andrew Thomas; Ann Thomas, Defendants, and Lisa Aubuchon; Peter R. Pestalozzi, Defendants–Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Sarah Lynn Barnes (argued), Richard Edward Chambliss, and Donald Wilson, Jr., Broening Oberg Woods & Wilson P.C., Phoenix, AZ; Douglas V. Drury (argued) and James P. Mueller, Mueller & Drury, P.C., Scottsdale, AZ, for Defendants–Appellants.
Larry Jay Wulkan (argued); Michael Charles Manning; Stefan M. Palys, Stinson Morrison Hecker LLP, Phoenix, AZ; Merwin D. Grant, Kenneth Brent Vaughn, Grant & Vaughn P.C., Phoenix, AZ, for Plaintiffs–Appellees.
Appeal from the United States District Court for the District of Arizona, Neil V. Wake, District Judge, Presiding. D.C. No. 2:10–cv–02756–NVW.
Before: WILLIAM A. FLETCHER, RONALD M. GOULD, and MORGAN CHRISTEN, Circuit Judges.
Former prosecutors Andrew Thomas and Lisa Aubuchon, and their spouses, (“Defendants”) appeal the district court's partial denial of their motions to dismiss. Former Maricopa County Board of Supervisors member Donald T. Stapley, Jr. and his spouse (“Plaintiffs”) allege that Defendants initiated a frivolous federal civil racketeering (“RICO”) suit against Stapley to harass him. The suit was part of an ongoing “political war” in Maricopa County between the Board of Supervisors, Sheriff Joe Arpaio, and others. Thomas and Aubuchon were later disbarred, in part for initiating the RICO suit in question.
Thomas and Aubuchon argued that they are entitled to absolute prosecutorial immunity from any claims arising out of their filing of the civil RICO action. The district court disagreed, denying Defendants' motion to dismiss as to the claims arising from the RICO suit. We affirm.
This case is before us on a Rule 12(b)(6) motion to dismiss. We describe the facts using the allegations from Stapley's Second Amended Complaint.
Stapley is a member of the Maricopa County Board of Supervisors (“the Board”). Thomas was the County Attorney, heading the Maricopa County Attorney's Office (“MCAO”). Aubuchon was a Deputy County Attorney.
Stapley and other supervisors clashed on a number of occasions with Thomas, as well as County Sheriff Joe Arpaio, former County Chief Deputy Sheriff David Hendershott, and others. Thomas and Sheriff Arpaio resented Stapley's investigations into the expenditures of the MCAO and the Maricopa County Sheriff's Office (“MCSO”). On one occasion, Stapley criticized Thomas' excessive use of expensive outside counsel, including Thomas' former law firm. Thomas responded by suing the Board to establish himself as the sole decision maker for hiring outside counsel. On another occasion, Stapley criticized the MCSO for using County money to finance trips to Central America. Thomas also believed that Stapley was interfering with Thomas' ongoing anti-methamphetamine program. Eventually the Board cut $6 million from the MCAO budget, and “[t]he conflicts escalated into what has been called a ‘political war.’ ”
Defendants initiated a campaign of harassment against Stapley and his supporters. As part of their campaign, Defendants launched baseless investigations into Stapley for alleged wrongdoing. One investigation related to a construction project for a new tower of the Maricopa County Superior Court (the “Court Tower Project”). Defendants reported possible wrongdoing by Stapley and others to the U.S. Post Office and the Department of Justice. The U.S. Attorney's Office determined that there was no evidence of wrongdoing, noting that “in several instances, the evidence was so lacking as to make the theory of liability nearly incomprehensible.” Sheriff Arpaio and Thomas later formed what they called the Maricopa County Anti–Corruption Enforcement unit (“MACE”), which they used to target their political enemies with criminal investigations. Thomas assigned Aubuchon to be MACE's primary attorney.
Defendants filed two baseless criminal complaints against Stapley. While seeking the first indictment, Aubuchon omitted or misrepresented facts and law to the grand jury. Thomas issued a press release announcing the indictment, and Thomas and Sheriff Arpaio also “sent a letter to the Secret Service notifying it that [Stapley] was under indictment and investigation.”
The State Bar investigated Thomas for ethical violations in prosecuting Stapley. Judge Rebecca Albrecht, acting for the State Bar, informed Thomas, “It is clear to me that under the facts as they were presented in the pleadings there was a clear issue of conflict of interest, which if borne out would have led to a conclusion that you had violated Ethical Rules 1.7, 1.10 and 8.4(d).” Judge Albrecht stated that she would close the investigation once Thomas confirmed that he was no longer involved in the prosecution.
To avoid disciplinary proceedings, Thomas advised the State Bar that he had transferred prosecution of the case and ongoing investigations of Stapley to Yavapai County Attorney, Sheila Polk. He announced that MCAO was to have no further involvement in the case. However, after the announcement, Aubuchon “continued to work on the investigations,” reporting to Sheriff Arpaio and Thomas. All 118 counts of the first indictment were eventually dismissed or voluntarily withdrawn by Polk. Sheriff Arpaio and Hendershott complained to Polk that the dismissal would embarrass them in the media.
Thomas and Aubuchon next filed a civil RICO suit against Stapley and others, as discussed below. While this civil suit was pending, Defendants initiated a second criminal case against Stapley. Pima County Superior Court Judge John S. Leonardo dismissed a similar criminal case against a different Board member, Mary Rose Wilcox, finding that Thomas had numerous conflicts of interest related to his “efforts to retaliate against members of the [Board]” and to “gain political advantage by prosecuting those who oppose him politically.” Special counsel for the State Bar also informed Thomas and Aubuchon that filing criminal charges while pursuing the civil RICO suit against Stapley created ethical conflicts.
After Judge Leonardo dismissed the case against Wilcox, Thomas and Sheriff Arpaio announced that Thomas would send the new criminal case against Stapley to Gila County Attorney, Daisy Flores, for review. Flores refused to prosecute any counts of the indictment due to the lack of evidence. She noted that because of “the sordid tapestry of how this case arose, ... any subsequent prosecution of [Stapley] would be our ratification of government misconduct on the part of the MCAO and the MCSO.”
Thomas and Aubuchon filed a federal civil racketeering suit against Stapley and others in late 2009. A number of people had advised them not to file the suit. Aubuchon knew that an outside law firm had evaluated the viability of a civil RICO action in October 2009, and had concluded that “there was insufficient evidence for such an action.” A RICO expert in the Maricopa County Attorney's Office, Peter Spaw, informed Thomas and Aubuchon that there was no evidence to justify a civil RICO action. Spaw refused to assist in drafting the complaint. MCAO supervisors Barnett Lotstein and Phil MacDonnell also told Thomas that “the RICO Suit was not appropriate or viable based on the facts and circumstances.” Despite these warnings, Thomas and Aubuchon actively participated in drafting the complaint before filing it on December 1, 2009. Lotstein and MacDonnell—who had “believed that Thomas had heeded their advice not to pursue” the RICO suit—learned about the filing only after Sheriff Arpaio and Thomas announced it to the media.
Sheriff Arpaio and Thomas were the plaintiffs in the civil RICO suit. The complaint listed Thomas and Aubuchon as plaintiffs' attorneys. Aubuchon signed the complaint. The complaint named fourteen individuals as defendants, as well as the Maricopa County Board of Supervisors and a law firm. The individual defendants included Stapley, other County Board members, state court judges, and county employees.
The general theory of the RICO complaint was that Stapley and the other RICO defendants had conspired to implement the Court Tower Project and to thwart Thomas and Sheriff Arpaio's legitimate criminal investigations into the activities of Stapley and others. The complaint alleged that the RICO defendants cut funding to the MCAO, intimidated and retaliated against prosecutors, improperly evaded surveillance devices, filed frivolous State Bar complaints against Thomas and his deputies, and committed various criminal acts. The complaint further alleged that the judicial defendants had been biased against Thomas and had issued unfair rulings against him.
The complaint generally alleged two types of injuries. First, it alleged that defendants cut funding for the MCAO, thus depriving Sheriff Arpaio of legal services and preventing the MCAO from fulfilling its duties. Second, the complaint asserted injuries to Thomas and other MCAO attorneys related to the RICO defendants' alleged efforts to deprive them of their law licenses by reporting them to the bar association. The complaint sought treble damages.
Thomas and Sheriff Arpaio voluntarily dismissed the RICO suit on March 11, 2010, less than four months after filing. The court had taken no action on the suit. The dismissal notice stated that “having referred this matter to the Public Integrity Section (‘PIN’) of the United States Department of Justice and having received their assurances that PIN will review the matter, Plaintiffs [Sheriff Arpaio] and [Thomas] ... hereby voluntarily dismiss” the case...
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