TL/DR –
Maricopa County Attorney Rachel Mitchell is seeking to overturn Arizona’s anti-SLAPP law, which aims to protect the public from lawsuits that stifle civic participation. Mitchell argues that the law unconstitutionally violates the separation of powers by allowing judges to interfere in prosecutors’ decisions, and that it fails to acknowledge victims. Unlike similar laws in other states, Arizona’s anti-SLAPP law also applies to criminal cases, a provision that was signed into law by former Republican Governor Doug Ducey in 2022.
Arizona’s anti-SLAPP law under threat from Rachel Mitchell’s constitutional challenge
Arizona’s law, designed to shield the public from strategic lawsuits that aim to hinder First Amendment rights, is under threat. A constitutional challenge from Rachel Mitchell could potentially dismantle this essential safeguard.
Maricopa County Attorney, Rachel Mitchell, is aiming to overturn a law that prevents the public from lawsuits that inhibit civic participation. In an October 17 court filing, Mitchell’s staff argued that Arizona’s anti-SLAPP law unconstitutionally infringes upon the separation of powers by enabling judges to meddle in a prosecutor’s decision-making, potentially leading to the dismissal of criminal cases unrelated to the merits.
According to Mitchell’s office, the law also breaches Arizona’s Victims’ Bill of Rights by failing to recognize victims and due to its vagueness. SLAPP stands for “strategic lawsuit against public participation”. Arizona is one of 38 states, plus the District of Columbia, that have implemented such laws. The Institute for Free Speech states that these laws “prevent the misuse of the legal system by providing additional defenses for those sued for exercising their First Amendment rights.”
Arizona’s law is unique as it also applies to criminal cases, not just civil ones. This distinctive feature was signed into law by former Republican Governor Doug Ducey in 2022. It has been employed in both high-profile and low-profile cases, such as Kari Lake’s defamation suit in 2023.
The challenge sets a precedent for who would step in to defend the law. Typically, state laws are defended by the attorney general. However, Attorney General Kris Mayes’s support for a review of the law opens the potential of the court overturning the entire law.
Pro-Palestine protester case triggers anti-SLAPP challenge
The challenge from Mitchell is the latest development in the county’s ongoing case involving 68 protesters who were arrested and charged with criminal trespassing for their role in a protest against the war in Gaza at Arizona State University’s Tempe campus in April 2024. Protester Michaela Koert’s attorneys asked the University Lakes Justice Court in June to dismiss the charges, based on the anti-SLAPP law.
In August, Justice Court Judge Tyler Kissell decided Koert’s attorneys fulfilled the first step and scheduled a five-day hearing starting Nov. 17. The hearing was expected to include Mitchell and her top prosecutors taking the stand to defend their decisions and demonstrate that charging the protesters was not aimed at suppressing their viewpoints.
Maricopa County’s argument against anti-SLAPP
The county argues that Arizona’s anti-SLAPP law contravenes the separation of powers between the judiciary and prosecutors as laid out in Arizona’s Constitution. The argument is based largely on the idea that Mitchell had “probable cause” in the case against Koert, the protester, hence she has “sole discretion on charging decisions”.
Why Mitchell believes Justice Court erred in protester case
Mitchell’s office contends that the lower court made a mistake in advancing the protesters’ anti-SLAPP case because the protester was not “lawfully” protesting. Koert was arrested for demonstrating after the university’s 11 p.m. curfew, making it unlawful, prosecutors wrote.
Protesters’ attorneys respond to county attorney’s request
Before prosecutors elevated the case to the superior court, they first asked Kissell to reconsider, but he declined without explanation. In justice court filings, Koert’s attorneys rejected the county’s argument that they needed to prove Koert’s protest activity was lawful.
This article was updated with additional information.
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