Updates: Adds comments from Mark Finchem
Calling his 2022 election challenge “groundless and not brought in good faith,” a judge has ordered Mark Finchem and his attorney to pay the legal fees of successful secretary of state candidate Adrian Fontes.
In an order made public Monday, Maricopa County Superior Court Judge Melissa Julian said that Finchem and Daniel McCauley also have to pick up the tab for Katie Hobbs. She also was named as a defendant in his claim based on her prior position as secretary of state and based on his claim she interfered with his candidacy.
What Finchem and McCauley owe has yet to be determined. Julian told them to submit their bills for review.
McCauley told Capitol Media Services he would not have any immediate comment about the order. But Finchem, in a statement, called the ruling “contemptible judicial overreach” beyond the authority of state law and court rules.
“Judge Julian is punishing me for daring to assert my First Amendment protections, which constitutionally guarantee separation of powers, and has shredded statutory protections for contestants to challenge suspicious election results,” he said. “Judge Julian should be removed from the bench for her abuse of judicial authority.”
In filing suit, Finchem, who had been a Republican state representative from Oro Valley, alleged a series of issues he said affected the outcome of the race he lost to Fontes. That included the malfunctioning of tabulators in Maricopa County on Election Day which he said created delays for voters and concerns that some ballots may not have been counted.
But Julian said Finchem “offered no tether between the machine malfunctions and the outcome of the election he challenged here,” she wrote in the new order.
Then there was an affidavit from someone who Finchem called an expert who claimed that there were 80,000 potentially “missing votes.”
“Yet, Finchem lost the election he challenged by 120,208 votes,” the judge noted. “The margin was so significant that even if it were assumed that 80,000 votes were missing and that those votes would all have been cast in his favor, the result of the election would not have changed.”
In fact, Julian noted, Finchem withdrew his request to inspect ballots, suggesting he had no expectation that it would yield a favorable outcome.
“This demonstrates that Finchem challenged his election loss despite knowing that his claims regarding misconduct and procedural irregularities were insufficient under the law to sustain the contest,” the judge said.
Julian was no more impressed by Finchem’s argument that Hobbs interfered with the election with her request in January 2021 to remove a post that the secretary of state said provided incorrect information about voter rolls. He had said that Hobbs “cajoled the Twitter people into censoring possibly as much as 50% of her constituency.”
Only thing is, the judge said, Twitter is not an election official and its separate decision in October 2022 to temporarily suspend Finchem’s account is not a valid basis to challenge the outcome of an election.
“Moreover, even if it could be constructed as predicate misconduct for an election contest, Finchem does not explain how the effort to flag his Twitter account in January 2021 affected his election loss over 20 months later,” Julian said.
The judge also said McCauly admitted he decided to file the case after “a number of experienced litigators” declined to pursue it.
What that shows, she said, that he took the case after conceding that “a more experienced litigator with a larger staff was needed to prosecute the action competently.”
“This should have been a deterrent,” Julian wrote. “At a minimum, concerns raised by other attorneys should have prompted further investigation into the contest’s validity.”
And there’s something else that got the judge’s attention. She said McCauley made comments during oral arguments that he “expressed being less at risk of being disbarred as a result of the filing given his impending retirement.”
“This too supports sanctions as it demonstrates a conscious decision to pursue the matter despite appreciating that the contest had no legal merit,” the judge said.
Julian said Arizona law allows a judge to impose sanctions to discourage lawsuits for which there is no legitimate basis in fact or law.
“Yet in election matters, Arizona courts have emphasized that sanctions should be awarded only in rare cases, so as not discourage legitimate challenges,” she said. But the judge said that none of Finchem’s allegations, even if true, would have changed the vote count enough to show him the winner.
“The court finds that this lawsuit was groundless and not brought in good faith,” Julian wrote.
This isn’t the first time Finchem or his lawyers have been sanctioned for filing what judges have called baseless litigation.
In December, U.S. District Court Judge John Tuchi said the attorneys representing Finchem and failed gubernatorial hopeful Kari Lake need to pay the legal fees of Maricopa County after he threw out their lawsuit seeking to prohibit the use of electronic voting machines. The judge said their claims that the machine certified for use in Arizona are “potentially unsecure” were “false, misleading and unsupported.”
And Finchem, along with two other Republican lawmakers, were ordered to pay the legal fees of former state Rep. Charlene Fernandez, D-Yuma, after they sued her for calling for an investigation into their action surrounding the Jan. 6 riot at the U.S. Capitol.e