Maricopa County Attorney Rachel Mitchell, the region's top prosecutor, is seeking to overturn a law that protects the public from lawsuits that stifle civic participation.

In a court filing Oct. 17, Mitchell's staff told the Maricopa County Superior Court that Arizona's "anti-SLAPP" law unconstitutionally violates the separation of powers by allowing judges to wade into prosecutors' decision-making and potentially "dismiss criminal cases for reasons having nothing to do with the merits."

The law also violates Arizona's Victims' Bill of Rights by failing to acknowledge victims and because it is too vague, her office claims.

SLAPP is an acronym for "strategic lawsuit against public participation." Arizona is one of 38 states that have such laws, plus the District of Columbia. The Institute for Free Speech says the laws "prevent abuse of the legal system by providing additional defenses to those who are sued for exercising their First Amendment rights."

Arizona's law is unique in the nation because it also applies to criminal, not just civil, cases. That change was signed into law by former Republican Gov. Doug Ducey in 2022.

It has been used in both low- and high-profile cases.

Kari Lake attempted to invoke it in 2023 after she was sued for defamation by former Maricopa County Recorder Stephen Richer, but was unsuccessful. It was used successfully by some defendants in Arizona's fake electors case.

In 2018, the law protected Charlie Lai, a business owner and resident who was sued by Scottsdale-based investment group True North Cos. after he spoke out at a Phoenix City Council meeting against the company's development plans.

Mitchell's challenge 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 demonstration against the war in Gaza at Arizona State University’s Tempe campus in April 2024.

Attorneys for protester Michaela Koert asked the University Lakes Justice Court in June to dismiss the charges, based on the anti-SLAPP law. The request triggered a two-part process. First, Koert's attorneys needed to show the county's charges were "substantially motivated" by a desire to retaliate or suppress viewpoints. If the judge agreed, the county would then have to prove otherwise.