Maricopa County Superior Court Judge Melissa Iyer Julian awarded sanctions on May 26 against Mark Finchem and his attorney over Finchem’s lawsuit challenging his election loss in the Arizona Secretary of State’s race to Democrat Adrian Fontes.
Finchem (pictured above) issued a response from his Substack. Titled “Yes, We Have a Two Tier Legal System.” In this piece, he advocated removing “judges who act outside of the law.”
Finchem said, “In what is commonly now known as ‘lawfare’ (legal warfare), the radical left has sought to pervert the law through judicial activism. On point is this fact, there is no provision in law for sanctions in CONTEST law.” He suggested impeaching the judges or voting them out in retention elections. Most judges in Arizona are appointed by the governor, they do not run for election initially. They remain in office by winning retention elections.
One of Finchem’s arguments opposing the defendants’ motion for sanctions was that “Arizona’s appellate courts have consistently over the decades ruled that attorneys’ fees are not to be granted in Election Contests.” He cited Democratic Party of Pima County v. Ford, where the Arizona Court of Appeals held that since the legislature had not included a statute providing for sanctions in election contest lawsuits, they cannot be awarded.
Julian dismissed the argument in several sentences, stating that the burden was on Finchem to show that the legislature intended that. However, the court, in that case, found otherwise, “If the legislature had intended to require the recovery of costs under § 12-341, it easily could have said so.”
Julian surmised, “None of Contestant Finchem’s allegations, even if true, would have changed the vote count enough to overcome the 120,000 votes he needed to affect the result of this election. The Court finds that this lawsuit was groundless and not brought in good faith.”
She admitted in a minute entry, “[I]n election matters, Arizona’s courts have emphasized that sanctions should be awarded only in rare cases, so as not to discourage legitimate challenges.” She added, “In election matters, the Court must consider the potential chilling effect a sanctions award may have on legitimate challenges in the future.” Julian laid out the standard for sanctions in A.R.S. 12-349(A)(1)-(3), which is if a party “‘[b]rings or defends a claim without substantial justification,’ ‘[b]rings or defends a claim solely or primarily for delay or harassment,’ or ‘[u]nreasonably expands or delays the proceeding.’”
She cited an Arizona election case where sanctions were awarded, Williams v. Fink, but the facts were substantially different. There, the losing candidate filed a lawsuit alleging misconduct since his name on the ballot appeared beneath his opponent on every ballot; it was not alternated. Williams “never provided a plausible argument that any irregularities affected the outcome of the election.”
Finchem’s lawsuit alleged that there was misconduct by election officials and that illegal votes were cast, a violation of A.R.S. 16-672(A)(4). That statute states that election challenge lawsuits may be brought “[o]n account of illegal votes.”
In her ruling, Julian blew off Finchem’s accusations of misconduct by then-Secretary of State Katie Hobbs, stating that they would not have changed the race’s outcome. Finchem cited Hobbs’ refusal to recuse herself from conducting the election as secretary of state, even though she was running herself for governor. He pointed out defects with the Electoral Assistance Commission (EAC) certification pertaining to the accuracy of voting machine tabulators. He cited Hobbs’ threat of legal action against counties who considered delaying certification of the election results due to concerns about election fraud, and her complaint about him to Twitter for “election misinformation.”
To award sanctions, the court must also find that a plaintiff filed a lawsuit “in bad faith.” Julian reasoned that since Finchem’s expert claimed 80,000 “black box votes” weren’t counted, that wasn’t enough to overcome the 120,000 votes he lost. She failed to consider his other arguments that would have added up to 120,000 votes total.
For example, Finchem included the Election Day problems with the voting tabulators as another reason for irregularities, but Julian dismissed them, stating he “offered no tether between the machine malfunctions and the outcome of the election he challenged here.”
Even though lawsuits have been filed alleging the certification for the voting machine tabulators was not valid, and Corporation Commissioner Jim O’Connor sent letters to election officials around the state warning them not to utilize the improperly certified tabulators, Julian blew off that objection from Finchem. He said it was evidence of bad faith. She chose to believe opposing counsel’s claims instead that the laboratories that certified the tabulators were properly accredited.
In Finchem’s pleading to object to Fontes’ request for sanctions, he pointed out that Fontes did not file his request timely. Julian gave Fontes 10 days, and he filed it two days late. Finchem accused Fontes of not complying with the rule governing sanctions, Rule 7.1 of the Arizona Rule of Civil Procedure. It states that motions for sanctions must “state with particularity” the grounds for the sanctions. Instead, Finchem said, “the Motion provided 14 pages of obfuscations, incoherent ad hominem attacks and vitriolic rhetoric.”
He added, “ARCP 7.1(a)(2) requires any supporting memorandum (which was not provided either) to include ‘…citations to the specific parts or pages of supporting authorities and evidence;’ which it did not comply with and also failed to state how the few authorities provided in the Motion had anything to do with the facts of this election contest.”
Finally, Finchem stated, “It is also mandatory under ARCP 7.1(a)(3) that affidavits and other evidence be filed (‘must be filed’) with the motion or memorandum; which was not done either.”
Finchem pointed out that Fontes didn’t even have attorney’s fees since “pursuant to a written engagement agreement with Sherman & Howard, a third party has agreed to pay Sherman & Howard for its representation of Secretary Fontes in this action, at the aforementioned hourly rate.” Fontes’ attorney admitted in a pleading that the attorney’s fees were paid by a third party, Finchem noted in another pleading. He asked, “If Fontes is not actually responsible for paying these fees or costs how can a claim be made for ‘his’ legal fees when there are none?”
Finchem alleged that Hobbs had a third party paying her attorney’s fees. He asked, “[A]re attorneys being doubly compensated? Or, are individuals potentially being reimbursed for fees and costs they never outlayed?” Julian did not bother addressing that in her ruling.
In Kari Lake’s similar election challenge of her loss in the gubernatorial race, where she cited many of Finchem’s arguments, the judge declined to award sanctions against her. Maricopa County Superior Court Peter Thompson was so dismissive of the defendants’ arguments that he didn’t bother reviewing almost all of them. He said the defendants were trying to use a standard that made Lake prove her case before she even had a chance to put on evidence. “This view mistakenly looks beyond trial to the ultimate resolution of the merits and does not allow for presentation of evidence to prove a disputed claim,” Thompson said.
Fontes and Hobbs had both asked for sanctions against Finchem. Julian did not grant the full amount of attorneys fees Fontes requested, stating that “the fees requested are excessive both in the number of hours expended and in the hourly rates charged.” Her ruling required Finchem to pay $40,272.50 for Fontes’ attorneys fees, taxable costs to Fontes of $292.55, and taxable costs to Hobbs of $91.58. His attorney Dan McCauly was ordered to pay $7,434 for Hobbs’ attorneys fees. Julian also denied Finchem’s Motion for Reconsideration of Under Advisement Ruling.
An anonymous complaint has been filed against Julian with the Arizona Commission on Judicial Conduct over her handling of Finchem’s case.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
Photo “Mark Finchem” by Mark Finchem.
