February 7, 2011 Edward P. Moriarity Bradley L. Booke Moriarity, Badaruddin and Booke, LLC Attorneys for Claimants 124 West Pine Street Missoula Montana 59802 406-728-6868 406-728-7722 fax NOTICE OF CLAIMS PURSUANT TO A.R.S. § 12-821.01 AGAINST THE STATE OF ARIZONA, AND THE BELOW NAMED STATE ACTORS CLAIMANTS AND VICTIMS: Re: Notice of Claims of: ANDREW P.THOMAS and family TO THE RESPONDENTS, ACTORS AND ADDRESSEES: Please accept this letter as our Notice of Claim pursuant to A.R.S. § 12-821.01 against the following public entities and employees: STATE OF ARIZONA; ACTORS Any and all other State Actors disclosed by further discovery in the capacity that the discovery justifies. Claimants hereby incorporate by reference their Notice of Claim filed with Maricopa County on January 24, 2011 (attached). At all times relevant to this Notice of Claim, the Actors acted under color of law. At all times relevant to this Notice of Claim, Edward Novak acted as an attorney and/or lobbyist for private parties rather than a Bar officer in the normal scope of his duties; because of said conflict of interest and actions, he does not enjoy immunity from suit. John Gleason; James Sudler; Edward Novak; Any and all other State of Arizona or other Actors disclosed by discovery. JOINT NOTICE: This document is a Joint Notice given to the State of Arizona and other Actors pursuant to law. The reason it is a joint notice is because the various acts and omissions given notice herein were in fact committed by State Actors and/or other Actors. The political entities act through their employees, agents, representatives and said entities are responsible for the acts and omissions committed by the above. This Notice will discuss some issues that have been raised in a Notice of Claim filed against Maricopa County and Maricopa County Actors (attached hereto and filed herewith). As several of the Actors worked for or on behalf of both Maricopa County and the State of Arizona during the time their actions harmed claimants, facts and circumstances articulated in both claims will sometimes overlap however remain separate causes of action as they relate to the entities the Actor was associated with. As there are separate acts and omissions in these claims that apply to one or the other entities individually, said acts and omissions flow from and into actors of both entities, and since these acts and omissions may start with Actors of one entity and move to actors of the second entity, and become comingled in such a manner that it is difficult to separate one from another, these claims are made against both entities. The basis for a joint notice is supportable in law since the claims made, in part, are for a scheme, fraud, retaliation, defamation, perjury, malicious prosecution, abuse of process, abuse of power, misuse of public office, misuse of public funds, misuse of influence, vindictive and/or selective prosecution, intentional infliction of emotional distress, tortious inference with contract and business relations, civil rights violations, RICO violations, bad faith, conspiracyand other malicious actions taken by the identified wrongful actors in an attempt to influence the public by the misuse of their positions of power and misuse of the truth, and the public trust. Said wrongful acts and omissions were taken in part to try to protect individuals who were part of the scheme, fraud, retaliation, defamation, perjury, malicious prosecution, abuse of process, abuse of power, misuse of public office, misuse of public funds, misuse of influence, vindictive and/or selective prosecution, intentional infliction of emotional distress, tortious inference with contract and business relations, civil rights violations, RICO violations, bad faith, conspiracyand other malicious actions taken to intimidate the Claimants, and to prevent each of them from doing their sworn duty of upholding the law, and protecting and serving the public in the State of Arizona. By filing a joint notice the claimants are not waving any notice given herein that, if made against each individual entity, would be sufficient to constitute legal notice to each individual entity. It is the intent of this notice of claim to set forth for each individual entity the required NOTICE of law, facts, causes of actions, wrongful acts and omissions, and damages that were the cause of the claim, and causation of the claim, together with the identification of the actor or actors responsible. The claims in this notice are on behalf of the victims: Andrew P. Thomas and family. This Notice of Claim is made on behalf of the victims, for the acts and omissions of the ACTORS, named above. They are victims of a series of acts and omissions committed by the Actors named herein, in the various sequence of events set forth in this claim committed up to and including the present. Many of the acts and omissions were and are ongoing actions. Said acts were committed either by the entities herein named, were committed under the scope of employment of said entities, or as a result of employment, election, appointment, selection, were acts under color of law, and/or were acts by an individual in power. Said actions included but are not limited to: Theft, Perjury, Fraud, Forgery, Retaliation, Defamation, RICO violations, Malicious prosecution, Misuse of power and influence, Misuse of public office and materials for improper influence, Abuse of process, Vindictive and/or selective prosecution, Intentional infliction of emotional distress, Tortious interference with contract and business relations, Conspiracy, Violations of rights protected by the Arizona Constitution, including: Article 2, Section 4 (Due Process), Article 2, Section 6 (Free Speech), Article 2, Section 8 (Right of Privacy) and Article 2, Section 13 (Civil Rights), Similar violations of the Constitution of the United States of America corresponding with the State Constitution violations set forth above, Violations of 42 U.S.C. Section 1983, Applicable Civil Rights Violations under Arizona and Federal Law, Bad faith, Malicious Actions taken to protect wrongdoers from lawful prosecution, Malicious actions taken to harm victims, Taking actions which made claimants victims of the actions of the governmental employees, agents and representatives of the agencies, Malpractice, Actions that have violated the Actors' Oath of Office, Actions of Actors who have abused their duty to the people they are supposed to protect, Actions of Actors who breached the duty owed to the victims, Aiding and abetting in all of the violations set forth above, and Any other violations that may come forth in discovery. Factual background regarding claims: This Notice of Claim is brought to address the misconduct of the above-named Actors and others who may be identified through further discovery. The Actors have engaged in an unprecedented campaign of political retaliation against claimant Thomas. This campaign is in retaliation for disputes and legitimate legal actions Thomas brought against Maricopa County politicians and judges related to illegal immigration, abuse of power and/or violations of law. Said actions have violated claimant Thomas's rights under federal and state law. First round of State Bar investigations. In late 2007, retired judges whose identities are currently unknown visited officers of the State Bar of Arizona. The State Bar of Arizona regulates the practice of law in Arizona. Only by being a member of the State Bar can a person practice law legally and regularly in Arizona. Those retired judges urged the State Bar to "do something" about claimant Thomas. Thomas had recently criticized Superior Court judges for their failure to enforce Proposition 100, a voter-approved initiative denying bail to illegal immigrants accused of serious felonies. Upon information and belief, Novak was present at this meeting. Novak was then employed as attorney for the Attorney General's Office regarding an investigation conducted by Maricopa County law enforcement officers. This investigation began in response to information received from State Treasurer Dean Martin. Following this meeting, State Bar Chief Bar Counsel Robert Van Wyck commenced a series of investigations of Thomas and other deputy county attorneys. These investigations involved one case in which Novak was the criminal-defense lawyer of record (defendant Matthew Bandy). In what was then an apparently unprecedented act, an investigator for the State Bar contacted the line prosecutor handling the Novak case for the Maricopa County Attorney's Office to question that prosecutor about plea negotiations in the case. After Thomas and the County Attorney's Office hired several prominent ethics experts, and after they concluded in affidavits that Thomas had committed no ethical wrongdoing, Thomas and his counsel released these affidavits to the public and petitioned the Supreme Court of Arizona to intervene to halt this misuse of power at the State Bar. The Supreme Court declined to intervene after the State Bar appointed an independent investigator to take the place of Van Wyck. Subsequently, Van Wyck resigned as Chief Bar Counsel. The Supreme Court adopted new rules governing the handling of Bar investigations and attorney discipline in Arizona. However, the Supreme Court did not adopt the American Bar Association model rules for professional discipline, which require clear separation between the political officers of state bars and the disciplinary offices within those agencies. The independent investigator chosen by the State Bar, Rebecca Albrecht, dismissed the remaining Bar charges against Thomas. However, in her dismissal letter, she stated that the investigations might be reopened if Thomas continued to publicly criticize judges. This action violated Thomas' First Amendment rights as recognized by the U.S. Supreme Court and U.S. Court of Appeals for the Ninth Circuit, whose rulings govern Arizona. Retaliation against Thomas witness. In 2008, State Bar President Daniel McAuliffe and Novak led an official act of retaliation by State Bar leadership against Ernest Calderon for filing an affidavit exonerating Thomas of ethical wrongdoing. Calderon had served as President of the State Bar and had been the Bar's delegate to the American Bar Association's House of Delegates. However, Calderon was denied this designation after McAuliffe and Novak complained he had been disloyal to the Bar in siding with Thomas. These actions took place while Thomas' Petition for Special Action was pending before the Arizona Supreme Court regarding the State Bar. McAuliffe later admitted publicly to the East Valley Tribune, an Arizona newspaper, that he and leaders of the Bar took this action because Calderon signed an affidavit defending Thomas. A contemporaneous email sent to Calderon by a witness at this hearing confirms and corroborates the Bar's motivation for denying Calderon this appointment. Stapley Bar investigation. In 2009, when Albrecht's dismissal of the remaining Bar charges against Thomas was disclosed to Thomas' counsel, Novak at almost the exact same time disclosed the dismissal to Lisa Aubuchon. Aubuchon was then the deputy Maricopa County Attorney assigned to handle the first criminal case against Maricopa County Supervisor Donald Stapley, handed down by the county grand jury in November 2008. Novak told Aubuchon that the remaining Bar charges assigned to Albrecht had been dismissed but that a new investigation had been opened against Thomas regarding the Stapley case. Novak's statement was intended to intimidate Aubuchon into backing off the prosecution of Stapley. Novak was then employed as an attorney for the Board of Supervisors. On the same day the local media were informed of the dismissal of the remaining Thomas Bar charges by Albrecht, they were also informed of the new Bar investigation that had commenced regarding the Stapley case. Local newspapers editorialized and opined that Novak appeared to have been behind the new Stapley Bar investigation. In fact, no formal complaint was filed with the State Bar, and yet a new investigation was commenced anyhow, in violation of standard State Bar procedures. The Stapley matter was referred to Albrecht. However, the State Bar continued to handle other Bar charges against Thomas internally, with in-house Bar counsel. No explanation was given Thomas for this disparate treatment. Albrecht eventually dismissed the matter but implied wrongly there was a conflict of interest in Thomas prosecuting Stapley. In fact, there was none, and Albrecht ignored binding case law from the Arizona Court of Appeals in State v. Brooks in reaching this conclusion. Recent Bar-initiated investigation. In 2010, John Phelps, President and CEO of the State Bar, sent a letter to Arizona Chief Justice Rebecca Berch requesting appointment of an independent investigator to look at the latest round of allegations of misconduct against Thomas. Phelps had been hired by the State Bar after the resignation of Van Wyck. Phelps served at the pleasure of State Bar officers. Upon information and belief, Novak and other Bar leaders, including criminal-defense lawyers and others with conflicts of interest, lobbied and pressed Phelps into making this recommendation and/or worked with others to accomplish this. Phelps' recommendation violated the rules of the State Bar and the Supreme Court governing the regulation of the practice of law in Arizona. Those rules require that Chief Bar Counsel handle investigations of attorneys in disciplinary matters. Berch appointed Scott Rhodes as independent investigator, upon information and belief, based on this misrepresentation of legal authority to the tribunal by Phelps. Rhodes later withdrew as investigator due to complaints from Thomas' counsel about conflicts of interest. These included representing Thomas on ethical matters and Rhodes' representation of the Board of Supervisors, whose employee, County Manager David Smith, was a Bar complainant against Thomas. Berch then appointed John Gleason of the offices of the Colorado Supreme Court to handle the investigation. Gleason and an attorney under his supervision, James Sudler, then commenced an investigation affecting the license to practice law and livelihood of Thomas that lacked lawful authority and violated his civil and legal rights. Violations of civil rights and law by Gleason et al. Gleason's investigation of Thomas was ultra vires, unprecedented in scope, retaliatory, and improperly influenced by State Bar Actors. Lack of Authority and Immunity. At all times relevant hereto, Gleason was repeatedly placed on notice of his violation of the civil and legal rights of Thomas and the deficiency of his appointment. He ignored those notifications and repeatedly and severely violated said rights. The appointment of Gleason urged by Phelps was ultra vires. The appointment did not comply with formally promulgated Supreme Court and State Bar rules governing the practice of law and disciplinary actions for attorneys. Likewise, the attempted conferral of immunity from suit on Gleason is ultra vires. Immunity for Bar actors is defined and regulated by Supreme Court rules, not administrative orders from a single justice which conflict with those formally promulgated rules. Those rules do not provide for immunity for independent bar counsel or independent contractors such as Gleason. Gleason acted as both investigator and prosecutor in violation of Supreme Court and State Bar rules and practice. To the extent he acted as a prosecutor, as in the recent filing of a formal Complaint against Thomas, Gleason's actions were ultra vires because he is not licensed to practice law in Arizona and was not admitted pro hac vice for this purpose. Targeting of Thomas for Political and Other Actionable Reasons. Gleason commenced a campaign financed by the State Bar with the predetermined conclusion of seeking the disbarment of Thomas in retaliation for the exercise of his First Amendment rights and other actions protected by law. Gleason interviewed some 100 witnesses as part of a so-called screening investigation, a disciplinary investigation of a scope apparently unprecedented anywhere in the United States. The State Bar dedicated unlimited fiscal resources for the investigation, an action that again has no known precedent in the United States. The investigation intentionally and knowingly breached legally recognized privileges. The State Bar, acting at the behest of Novak and his clients, provided improper financial inducements to encourage Gleason to target Thomas in violation of his civil rights. This included paying for lodging for Gleason and an associate at the exclusive Arizona Biltmore resort. The State Bar had filed the complaints against Thomas that Gleason was commissioned to investigate yet paid these expenses for lavish accommodations. The State Bar has claimed publicly that they allegedly received reduced rates at the Biltmore. Upon information and belief, those rates were obtained because they rented the rooms for an extended period, thereby empowering and encouraging Gleason to do more extensive work in targeting Thomas. Despite a lawsuit filed by Judicial Watch in Colorado seeking information about these facts and matters, Gleason has declined to release documents and information regarding same. Gleason abetted the denial of counsel to Thomas in violation of his federal and civil rights. He refused to stay his investigations, which were unlawful in any event, after being formally notified that those who had lodged complaints against Thomas, namely Maricopa County Manager David Smith and the Board of Supervisors, had unilaterally and without good cause terminated Thomas' counsel in the investigations. These firings left Thomas without effective assistance of counsel in seeking to exercise his constitutional rights to due process of law and other rights. By comparison, it is inconceivable that in a criminal case, the alleged victims of a crime would be permitted to fire the defense counsel for a defendant on the eve of trial, and a court or prosecutor would refuse to grant an extension for appointment of new counsel. Such refusal and other actions by Gleason demonstrate bad faith toward a member of the State Bar. Gleason's public recommendation of disbarment against Thomas and orchestrated publication of same was malicious, intended to do professional and economic harm, not supported by the facts or law, and in violation of the rules of the Supreme Court and State Bar. Gleason's investigation and findings were intended to maliciously retaliate against Thomas for doing his job as County Attorney and for treating members of the state judiciary and Board of Supervisors the same as he has treated all other citizens. Upon information and belief, Gleason worked with Novak to disadvantage Thomas and to protect Novak's client, the Board of Supervisors, and its members and employees from proper scrutiny and actions by county law enforcement, and to chill the enforcement of the law against them by prosecutors elsewhere. The actions of Gleason and related Actors were discriminatory and violative of federal and state civil rights in other ways. These Actors worked to create an entirely different process for handling Bar investigations of Thomas from that which governed other attorneys in Arizona. Even now, there are no rules that clearly govern the Bar proceedings against Thomas. They are being made up along the way, thereby constituting a continuing violation of due process and other constitutional rights. Gleason has repeatedly refused to state what rules apply to his investigation and these proceedings. Upon information and belief, that is because there are no rules due to the unique and ultra vires treatment Thomas is receiving. It is a violation of federal and state civil rights for the government or agency acting under color of law to treat a member of a class in a completely different manner from other similarly situated members of that class (i.e., those holding a license to practice law). This is especially so when, as here, the effect was to create a separate and extraordinary process more severe than that faced by other attorneys in Arizona; in light of the First-Amendment-protected disputes Thomas has had with the Actors who set up this system, including disputes related to illegal immigration; and the extreme outcome of the investigation. These actions violated the constitutional rights of Thomas according to an affidavit signed by Ronald Rotunda, an internationally recognized expert in legal ethics. Gleason investigated Thomas in other unique ways inconsistent with constitutional norms: - The State Bar recommended an investigation, which Gleason completed with findings of misconduct, related to the claimants' filing of a federal RICO lawsuit against a client of Novak, the Board of Supervisors, and Superior Court judges. However, the State Bar, Gleason and other Actors are well aware that another attorney in Arizona, Michael Manning, has filed multiple RICO suits alleging various criminal acts against Thomas. Unlike the RICO suit against the Board and judges, which provided many facts in support of the allegations, Manning's suits provided no genuine factual basis for the allegations of crimes. Indeed, his first RICO suit against Thomas was dismissed by U.S. District Court Judge Susan Bolton. In contrast, the Thomas RICO suit was not dismissed by a judge nor were there findings of wrongdoing by a court of law.
- The State Bar and Gleason investigated the criminal charges against Judge Gary Donahoe and whether there was probable cause for same. Upon information and belief, no prosecutor in Arizona has been investigated by the State Bar for lack of probable cause in a criminal case. In fact, grand juries and judicial officers routinely enter findings of no probable cause in criminal cases and no Bar investigations result against the prosecutors.
- Gleason initiated investigations of matters in which no complaints had been filed by the Bar. One matter Gleason brought against Thomas was almost five years old. The purpose was to self-create a "laundry list" of allegations to target Thomas in an unprecedented way. This practice was in violation of the written rules and procedures of the State Bar.
- Gleason concluded there was lack of competence by Thomas in the RICO suit when no client had complained of same. In fact, the only plaintiffs were Thomas himself and Sheriff Joe Arpaio. Such a conclusion was not only wrong but unprecedented and discriminatory, and opens attorneys to being second-guessed on the initiative of the State Bar for their handling of literally any legal matter. If allowed this will make the practice of law impossible in Arizona.
- Gleason accused Thomas of violating the rules of professional responsibility for making a public records request of the Board of Supervisors. Such requests are protected by state law.
- Gleason claimed it is a violation of the rules of professional responsibility for an attorney's counsel to file motions and pleadings objecting to violations of due process and other civil rights. Such actions if allowed will chill all attorneys and defense attorneys from being able to defend themselves and their clients in courts and tribunals.
- His actions are designed to circumvent state laws ensuring prosecutorial immunity in retaliation for political disputes and legal actions between Thomas and county officials related to illegal immigration, abuse of power and/or unlawful acts.
Other unprofessional behavior by Gleason in the course of his investigation demonstrated bias, bad faith, abuse of process, and other conduct legally inconsistent with his position. DAMAGES This period of harm and ill will has caused personal and economic devastation to the victims. The damages will be proven at trial but will include but not be limited to: ANDREW THOMAS AND FAMILY Herein make their claims for damages as follows: AMOUNT OF CLAIM: Lost earning capacity | | $7,000,000 | Emotional Pain and Suffering | | $500,000 | Business loss | | $5,000,000 | Punitive damages | | $10,000,000 | Miscellaneous Losses | | $ 1,000,000 | Total damages | | $23,500,000 | | | | | TOTAL CLAIM | $23,500,000 |
In order for a claim to be valid, A.R.S. 12-821.01(A) requires the claimant to include a specific amount for which the claim can be settled. This claim can be settled for the total amount set forth above, which is itemized in the attached narrative. Claimant's Signature: _____________________ Andrew P. Thomas Edward P. Moriarity and Bradley L. Booke Moriarity, Badaruddin and Booke, LLC Attorneys for Claimants 866-879-5145
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