Dennis I.

Wilenchik Licensed in Arizona,

diw@wb-law.com Texas, New York,
ATTORNEYS AT LAW and the District of
The Wilenchik & Bartness Building Columbia
2810 North Third Street Phoenix Arizona 85004

Telephone: 602-606-2810 Facsimile: 602-606-2811

October 22, 2018

VIA EMAIL AND CERTIFIED MAIL

James E. Barton II
Torres Law Group, PLLC
2239 West Baseline Road
Tempe, Arizona 85283
james@thetorresfirm.com
Attorney for Clean Energy for a Healthy Arizona
RE: FALSE AND MALICIOUS ADVERTISING CAMPAIGN AGAINST
ATTORNEY GENERAL MARK BRNOVICH
Mr. Barton:
I write to you as you appear to represent the defendants in a lawsuit we are prepared to file on behalf
of the Arizona Attorney General, Mark Brnovich, in relation to numerous false and malicious attack
ads published by your clients, Clean Energy for a Healthy Arizona, through multiple mediums
including but not limited to internet, radio, and television. If you do not currently represent these
persons or this entity, then please be good enough to so advise me and/or forward this letter to them,
so they may contact me to hopefully avoid a lawsuit. The purpose of this letter is to have your clients
immediately remove offending, false and malicious statements from any print or other medium, or we
will have to conclude their intentions are a result of actual malice.
FACTS
While the evidence clearly suggests that your clients are well aware of the defamatory and
tortious nature of their ads and the false content, I write to you in a sincere effort to avoid litigation
and a claim for the attendant damage caused, and impress upon you that your clients, Clean Energy
for a Healthy Arizona, as well as Darryl Tattrie, Jessica Grennan, Alejandra Gomez, and Tom Steyer
personally (for aiding and abetting at a minimum), clearly appear to be conspiring to defame our client.
While I do not wish to belabor this obvious point, I have taken the time to elaborate on some of the
clear falsehoods your clients continue to publish. I ask they cease and desist from these defamatory
statements immediately and to so notify us in writing that they will cease making these false statements
and attacks in any forum, to avoid our filing suit within the next 48 hours. If you wish to call me before
then, please do so. But, we cannot wait any longer, because these maliciously false attacks are being
run almost daily on a non-stop basis as I write this. By no means should this limited discussion be
considered the totality of your clients’ potential liability.
In short, the fundamentally false pillar of your clients’ malicious advertising campaign is the
portrayal that APS donated in excess of $400,000.00 ($425,000) to Mark Brnovich or his campaign to
become Arizona’s Attorney General in 2014. The obvious implication if not outright statement is that
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 James E. Barton II
October 22, 2018
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Brnovich is somehow beholden to APS as a result, and that he acts as some kind of puppet for their
interests when nothing could be further from the truth. As your clients should be aware, as they are
heavily involved in campaigning and fund raising for various organizations, it would be a violation of
law to contribute $425,000.00 to any candidate or his campaign as stated. As such, your clients no
doubt are aware that the money they are referencing in their ads, if given to anyone, was to the
Republican Attorney General’s Association, we believe—which receives millions of dollars from
numerous sources and could not be earmarked for the Attorney General. More importantly, as your
clients are also aware, the Republican Attorney General’s Association would be, at best, an
independent expenditure committee, which by law cannot coordinate with, or otherwise involve a
candidate directly. To be crystal clear, Mark Brnovich and his campaign received no such
contributions, donations, or other such monies from APS or any related entity as claimed. As pointed
out below, he has certainly never acted with APS’ interests in mind as Attorney General, in these or
any other matters, but rather fairly in the interests of all citizens based on the rule of law. I should also
note, that by your clients’ same logic, General Brnovich’s opponent in the current campaign for
Attorney General would unlawfully be receiving contributions by your clients in excess of lawful
limits. However, we have not made this claim because it would be equally untrue.
The obvious goal of your clients’ false statements is to provide an unwitting voter with the
obvious impression that Mark Brnovich somehow, as your clients falsely refer to it, “rigged” and/or
“manipulated” official ballot language in order to help APS block affordable solar, raise bills, and
protect their profits as stated in some of the ads. And, that is further bolstered by the language that the
Secretary of State’s Office was somehow surprised by language included by an Assistant AG to clarify
the language on the informational literature sent to mail voters by “raising eyebrows”. This is entirely
false and/or highly misleading and taken out of context. The same for conclusory remarks like
Brnovich is “corrupt”, “bough-off”, or that Arizona will be “cleaned up” by voting against him. 1 As
your clients well know, the term “rig” in any form—especially when used in the context of elections
given current political events and particularly accompanied by the term “corruption” or “bought-
off”—means to any normal person, illegally and wrongfully interfering with the process of an election.
As you are well aware, nothing of the sort occurred here and given the Attorney General’s official
responsibilities it is defamation per se. As part of his official duties, General Brnovich unequivocally
did not have any communications or coordination with APS regarding Proposition 127, never intended
to do anything by any informational language to help steer the election and did not act for APS in
relation to Proposition 127. Any reference to the contrary in ads being put out are blatantly false and
maliciously concocted solely for partisan purposes.
To the contrary, the Attorney General’s Office had communications with you prior to the
official language being finalized, not APS, Pinnacle West, or any representative of those
organizations. Attorney General Mark Brnovich has always been transparent with you and your clients
regarding the ballot language used in relation to Proposition 127. People can reasonably disagree on a
1
Indeed, at least one of your ads claims that “the FBI confirmed it launched an investigation into campaign spending
linked to APS” which in the context would be understood as meaning the FBI is investigating Brnovich, which is
false. While the FBI may have investigated into campaign spending linked to APS, this has absolutely nothing to do
with Brnovich and should not be linked to him in any way to be fair or honest. Further, the statement is patently
misleading as even the investigation that did occur (relating to Gary Pierce, Sherry Pierce, Jim Norton, and Johnson
Utilities) resulted in a mistrial and the FBI dropping the charges.
 James E. Barton II
October 22, 2018
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variety of important issues, but there is a difference in lawful and appropriate debate and discourse, as
opposed to false and malicious attacks on one’s character. Unfortunately, we believe your clients’ ads
have clearly and outrageously gone over that line. Indeed, the Attorney General’s office went out of
its way to provide you and your clients with all relevant communications and deliberations regarding
the language to be used to describe Proposition 127, which we believe was not required. The Attorney
General even considered language you proposed, although the threat of litigation tied thereto was
entirely unnecessary. You claimed that the final description must include the removal of the phrase
“irrespective of cost to consumers” and “neither pre-1997 hydropower nor any nuclear generation
counts for this percentage”. Your demands were partisan politics and not designed to properly educate
the voting public, which was Attorney General Brnovich’s sole concern. He respectfully disagreed,
and instead appropriately exercised his duties on behalf of Arizona voters in amending the language
to be clear and informative on an objective basis.
In response to your concerns, the then Acting Division Chief, Brunn (Beau) Roysden,
explained that Ariz.Rev.Stat. § 19-125 requires that the ballot describe “the essential change in
existing law”. As you well know, the existing renewable energy plan was established after
consideration of the cost to consumers, while the initiative seeks to establish a constitutional mandate
to use a certain amount of eligible renewable energy that applies irrespective of the cost to consumer.
As such, the fact that the ballot initiative creates mandates irrespective of the cost to consumers is, by
definition, an essential change in existing law that was required to be described pursuant to statute.
Moreover, the Arizona courts require that the language not be false or clearly misleading. In light of
this, and the fact that the initiative limits the definition of what constitutes renewable, it was necessary
to make clear that certain sources of energy would not constitute renewable energy under the ballot
initiative. All of this was made clear to you prior to the language becoming finalized. All of this was
done in a purely objective manner as one would expect from the Attorney General’s Office.
Tellingly, your response did not even address, let alone contest, the fact that the “irrespective
of the cost to consumers” language reflected a change in the existing law. Instead, you only contended
that it somehow implied that there would be a cost. It does not. In any event, you effectively conceded
that this phrase described a change in the existing law and was therefore required to be included by
Ariz.Rev.Stat. § 19-125. Moreover, the remainder of your email similarly conceded that a definition
of what constituted “renewable” energy under the ballot initiative was necessary, but you simply
questioned whether nuclear was technically renewable. Notably, your own petition initiative
description made the same point regarding nuclear power. Having been apprised of your concerns
and your failure to explain why either phrase was not in fact necessary and required by law, the
Attorney General’s Office informed you that it would not be removing the language you questioned.
Unsurprisingly, given your clients’ tacit admissions that the phrases were not violative of any
law and were required to be within the description, your clients never followed through with your
threat of litigation. As is abundantly clear from your choice of action and concessions, you and your
clients knew full well that the claims they thereafter made in a malicious, false, and unfounded attack
on Attorney General Mark Brnovich were false and actually malicious. We are now giving your clients
one more chance to dispel this conclusion by removing the false language and the false innuendo
created thereby.
 James E. Barton II
October 22, 2018
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Moreover, your reliance on the statement by Eric Spencer that the ultimate language used was
“eye-brow raising” is incredulous at best, given the information that was previously provided to you.
As is shown in the communications provided to you, Eric Spencer himself actually wanted to include
language that Proposition 127 would result in a required increase of 317% in retail energy sales from
renewable sources. Mark Brnovich properly refused to include this language, which would have been
worse for your position, due to the fact that his office believed that this language was in essence,
“redundant and appears to be designed to shock voters as a separate, dramatic increase”. Thus, Eric
Spencer’s “eye-brow raising” comment clearly contradicts his own suggested language for the
description of Proposition 127—which again was designed to shock voters against its passage.
Thus, the entire bases of your clients’ attack ads are patently false, and actually malicious.
Indeed, not only is the premise of these ads false, but the underlying factual allegations are
demonstrably false. As your clients are well aware, nothing could be more offensive to a person in
Attorney General Mark Brnovich’s position than calling into question by these smears his professional
integrity, reputation, honesty, and devotion to the law, including any suggestion of partisan influence
in his decisions. Your client, by stating clearly that he was in essence paid off to do his job in properly
educating the public is shameful. To state that he is in any way corrupt, or that he rigged an election
process, is beyond the pale, and defamation per se. Given his profession as a lawyer and his position
as Chief Law Enforcement Officer of this State, damages are presumed. However, punitive damages
should be appropriate in a case like this. This entire episode is especially troubling under the
circumstances in which our client was more than transparent and fair to your overtures in his
considering them.
As has been shown throughout this process, Attorney General Mark Brnovich is both fair
and impartial and prioritizes above all else following the rule of law. Although far from deserved,
Attorney General Mark Brnovich is willing to provide your clients 48 hours notice prior to the filing
of a lawsuit for defamation, in which your clients will have the opportunity to cease their attack ads to
avoid such litigation by confirming they will not be stating or implying he is crooked, implying or
stating he took money from APS in any way, or that his legal actions are a result in any way of any
contribution from APS to him or his campaign.
LEGAL ISSUES
Attorney General Brnovich will establish that the statements in the radio, tv and/or internet ads
“are reasonably capable of sustaining a defamatory meaning,” and that the statements “are not mere
comment within the ambit of the First Amendment.” Knievel v. ESPN, 393 F.3d 1068, 1073–74 (9th
Cir.2005) (quotations omitted). Ultimate Creations, Inc. v. McMahon, 515 F. Supp. 2d 1060, 1065 (D.
Ariz. 2007). To be defamatory, a publication must be false, and must bring the defamed person into
disrepute, contempt, or ridicule, or must impeach plaintiff's honesty, integrity, virtue, or
reputation.” Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 783 P.2d 781, 787 (1989).
Statements of rhetorical hyperbole are not actionable and “[t]he law provides no redress for harsh
name-calling.” Flowers v. Carville, 310 F.3d 1118, 1127 (9th Cir.2002). See also Turner v.
Devlin, 174 Ariz. 201, 848 P.2d 286, 292–93 (1993). To determine whether a statement can be
reasonably interpreted as a factual assertion, a court “must examine the totality of the circumstances
in which it was made.” Underwager v. Channel 9 Australia, 69 F.3d 361, 366 (9th Cir.1995);
 James E. Barton II
October 22, 2018
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McMahon, 515 F. Supp. 2d at 1065. Here, we believe a consideration of all circumstances stated will
result in this matter being presented to a jury and that jury finding actual malice.
To satisfy First Amendment concerns, “[a] public figure plaintiff must show that the defendant
acted with actual malice-- that is, knowledge that [a statement] was false or reckless disregard of
whether it was false or not.” Flowers, 310 F.3d at 1129. For a defamation claim, “actual malice” is
present when a statement is made with the knowledge that a statement is false or with reckless
disregard of whether it was false or not. New York Times v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710,
11 L.Ed.2d 686 (1964).
According to Arizona law, libel and slander are classified as either per se or per quod. Boswell
v. Phoenix Newspapers, Inc., 152 Ariz. 1, 730 P.2d 178, 183 n. 4 (Ariz.App.1985). A communication
is libel per se if on its face it tends “to impeach one’s honesty, integrity, or reputation.” Id. If a
communication “is libelous only by considering extrinsic information, then it is considered libel per
quod.” Id. A communication qualifies as slander per se if it charges “one with a contagious or venereal
disease; charge[s] that a woman is not chaste” or consists of statements “which tend to injure a
person in his or her profession, trade or business” or imputes “the commission of a crime
involving moral turpitude.” Id. Libel and slander per se do not require proof of special damages. The
statements here qualify as libel and slander per se. Ilitzky v. Goodman, 57 Ariz. 216, 112 P.2d 860,
862 (1941). We believe that not only do these statements cause actual damage, but that a jury would
easily find them to not only be made out of actual malice, but with conscious disregard for the
Plaintiff’s substantial rights and or recklessly, which will result in an award of punitive damages.
CONCLUSION
If you have any questions or would like to discuss this further, please do not hesitate to
contact me. If we have not heard from you confirming that your clients will immediately cease the
attack ads which include these false and defamatory claims by October 24, 2018 at 12:00 NOON we
will be forced to file suit against your clients.

Sincerely,

Dennis I. Wilenchik, Esq.

cc: The Honorable Mark Brnovich, Attorney General of the State of Arizona