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Election denier Finchem penalized $40K, Lake off the hook

Rep. Mark Finchem, of Arizona, gestures as he speaks during an election rally in Richmond, Va., on Oct. 13, 2021. A judge Friday, May 26, 2023, ordered him to pay $40,565 in legal fees and costs to Adrian Fontes, the Democrat who defeated him in the November election. The judge found that his legal effort to overturn the election results was "groundless and not brought in good faith.'' (AP Photo/Steve Helber, File)

Election denier Finchem penalized $40K, Lake off the hook

Kari Lake will not have to pay court-ordered penalties even though a judge rejected her latest bid to overturn the 2022 gubernatorial election.

In a ruling late Friday, Maricopa County Superior Court Judge Peter Thompson reaffirmed his earlier ruling that Lake failed to provide evidence of misconduct in the way Maricopa County verified the signatures on early ballots. The judge had rejected her claim that the rate of signature approval – including 274,000 at less than three seconds and 70,000 in fewer than two seconds – proved that the county was not complying with statutory requirements that signatures be compared.

Thompson also refused to grant her a new trial on her separate claim that Election Day problems with equipment at polling places was caused by intentional acts of county election workers and disenfranchised voters and affected the outcome.

Lake, trial, Hobbs, governor, Trump, election deniers
Kari Lake leaves after former President Donald Trump spoke at his Mar-a-Lago estate on April 4, 2023, in Palm Beach, Fla., after Trump was arraigned earlier in the day in New York City.  (AP Photo/Evan Vucci)

But the judge, in his new ruling, said none of that entitles the county to either get its legal fees paid by Lake or to punish her or her lawyers.

Mark Finchem, the unsuccessful Republican candidate for secretary of state, and his attorneys were not so lucky.

In a separate order Friday, Maricopa County Superior Court Judge Melissa Julian ordered Finchem to pay $40,565 in legal fees and costs to Adrian Fontes, the Democrat who defeated him in the November election. And Julian imposed a separate $7,434 penalty against Daniel McCauley, his attorney, for filing a lawsuit that she previously called “groundless and not brought in good faith.”

The different outcomes apparently come down to how each judge saw the claims and whether they believed there was a reasonable basis.

Thompson’s Conclusion

It starts with an Arizona law that generally requires judges to assess reasonable legal fees and expenses against an attorney or party who brings a claim “without substantial justification.”

Thompson, in his ruling in the Lake case, said that means a claim is “groundless” or, to put another way, that there was no rational arguments based on evidence or law to support it.

In this case, he said, Lake failed to establish her claim that the county systematically pushed mismatched ballots through for tabulation without following the required procedures. But that, the judge said, did not make it groundless.

“Even if her argument did not prevail, Lake, through her witnesses, presented facts consistent with and in support of her legal argument,” he wrote.

More to the point, Thompson said just because her attorneys made certain arguments about what the facts show in their closing arguments did not amount to the kind of misconduct that merits punishment.

“Opposing litigants in a heated dispute will naturally view the same evidence differently,” he said.

“The inferences one draws will be anathema to the other, and they may question each other’s good faith motivated simply by their conviction of their own cause and incomprehension at the conclusions of the other,” Thompson continued. And he said that “advocacy” was not sufficient to constitute misconduct.

The judge took pains on how his decision here differs from the actions by the Arizona Supreme Court earlier this month to impose a $2,000 sanction against Lake’s lawyers after reviewing one of Thompson’s earlier rulings.

In that case, Chief Justice Robert Brutinel said there was absolutely no factual basis for her attorneys to claim in her appeal to them of lower court rulings that it was “undisputed” that 35,563 unaccounted for ballots were added to the total in Maricopa County. And Brutinel said they repeated the same “false assertions” in subsequent legal filings.

Only thing is, he said, all that was not true. And Brutinel said it was unethical for lawyers to make such statements, meaning they had to be punished.

Lake is not done in her fight, vowing to appeal Thompson’s latest ruling that she failed to prove her claim that the county wasn’t properly verifying ballots.

Julian’s Conclusion

In the race for secretary of state, Julian reached a different conclusion than Thompson on the merits of the case brought by Finchem. She found that his legal effort to overturn the election results was “groundless and not brought in good faith.”

Melissa Julian

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, in an earlier ruling opening the door for Fontes to seek his fees and sanctions, 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.

As to separate sanctions against McCauley, Julian noted that he 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.

There was no immediate response from Finchem to the new order.

But Finchem, in a statement in March when Julian first opened the door to sanctions, based the ruling as “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.”