U.S. District Court Judge John Tuchi, who was appointed to the bench by President Barack Obama, awarded sanctions in December against Kari Lake’s and Mark Finchem’s attorneys over their lawsuit against electronic voting machine tabulators in December. In his July 14 order, he emphasized that the sanctions are to be used “only in the most egregious situations” and as a “deterrent” to others who might be considering similar lawsuits.
Lake addressed the sanctions during an interview Wednesday on The Colonel of Truth.
“I sued to get rid of the machines in Arizona about a year before the election,” she said. “No, actually, I’m sorry. About six months. An Obama judge threw the case out, tried to sanction our attorneys,” she said, referencing the case with Tuchi (pictured above).
“They’re sanctioning our attorneys,” Lake said. “I tried to prevent the disaster of voting machines with this lawsuit BEFORE the election. We get to the election, the machines break down & they’re saying ‘you shouldn’t have bought it.’”
The Maricopa County Supervisors, represented by Maricopa County Attorney Rachel Mitchell, asked for $139,950 in attorneys fees. Tuchi found that the estimate wasn’t completely valid and lowered it to $122,200. In similar election-related cases, judges have declined to award sanctions against those bringing the lawsuits.
Bob Brickman, a local business and elections lawyer, expressed what he described as “grave concern” over this latest development by Mitchell and the federal judiciary. “If this decision stands, we now have the judiciary abandoning judicial restraint and aggressively taking over the legislature’s oversight and law-making role on the acceptable conduct of attorneys … we’re beyond the ‘TIPPING point;’ we’ve actually crossed over into the judiciary legislating standards, and eliminating an entire class of subject matter lawsuits!” he told The Arizona Sun Times.
Brickman warned that equal access to justice will be “a thing of the past” based on a judge’s subjectivity, instead of objective standards already in place; “for example, Rule 11 of the Federal Rules of Civil Procedure, and clear and objective standards that have a statutory basis.”
“What elections attorney would even consider taking a case knowing the judiciary has essentially legislated away that class of lawsuit from being filed — even if done in good faith, as they’ll automatically risk monetary sanctions if they don’t prevail!” he asked.
Brickman concluded by stating that in the event this decision stands, and the legislature does not quickly remedy it, “the Supreme Court and State Bar likely will impose mandatory CLE classes covering New Standards of Conduct for attorneys to avoid monetary and disciplinary sanctions —by not bringing election and other select conservative-based lawsuits.”
In his ruling, Tuchi admitted that “the Court declined to make a finding as to whether the case was brought for an improper purpose.”
He cited Federal Rule of Civil Procedure 11(c)(4), which states in part, “The sanction imposed . . . must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated…”
The judge alluded to case law, “The purpose of imposing sanctions under Rule 11 is not ‘compensating the prevailing party,’ but ‘deterring, and if necessary punishing improper conduct.’”
At the same time, Tuchi acknowledged, “the imposition of sanctions is an extraordinary remedy to be exercised with caution and restraint,” citing the Ninth Circuit stating they should be used “only in the most egregious situations.”
Tuchi divided up the sanctions among Lake’s three attorneys.
Retired Harvard Law School professor Alan Dershowitz asserted that he only participated in the case as “of counsel,” meaning he was not one of the primary attorneys. He said he wrote only one paragraph of the complaint. However, Tuchi referenced sanctions issued against another election attorney, Lin Wood, who was also merely of counsel in an election challenge lawsuit.
He said, “The Sixth Circuit rejected Mr. Wood’s argument that the district court was ‘required to undertake an individual analysis of his conduct before it could sanction him.’”
Tuchi disagreed with Dershowitz’s contention that his role was minimal.
“In any event, Mr. Dershowitz’s subjective intent is not controlling at this stage,” he said. “The need for general deterrence [when it comes to his role is] significant,” the judge said. He reasoned, “Failing to impose meaningful sanctions here might very well encourage others to follow suit by lending their credibility to documents filed in court without facing any real consequence if their certifications prove hollow or incomplete.”
Since Dershowitz’s role was substantially smaller than the other attorneys, Tuchi reduced his share of the sanctions to 10 percent, $12,220. Attorneys Kurt Olsen and Andrew Parker were assigned the remainder of the $122,200.
In their lawsuit, Lake and Finchem denounced the “nullification of Plaintiffs’ fundamental rights as candidates and as voters to vote and have their votes properly counted without being diluted or debased by other fictitious or manipulated votes.” They cited a 2001 case, Bonas v. Town of N. Smithfield, which held, “[O]ne thing is clear: total and complete disenfranchisement of the electorate as a whole is patently and fundamentally unfair (and, hence, amenable to rectification in a federal court).”
Maricopa County Republican Committee censured Mitchell in June for representing county officials twice and asking for sanctions against Lake. Maricopa County Superior Court Judge Peter Thompson rejected the county’s motion for sanctions against Lake in her election contest lawsuit, stating it wasn’t “groundless.” The Arizona Supreme Court issued nominal $2,000 sanctions against Lake’s attorneys in May over her election challenge lawsuit.
Progressive-funded attorneys have filed multiple lawsuits in Arizona related to the 2020 and 2022 elections, but none have been sanctioned or disciplined by the State Bar of Arizona. The 65 Project files bar complaints against election attorneys representing Republicans in election-related lawsuits and has filed them against Dershowitz, Olsen, and Parker.
Last fall, Tuchi struck down a new Arizona law championed by Republicans that made it a crime to record law enforcement activity within eight feet after receiving a warning from an officer. Attorney General Kris Mayes agreed to pay Arizona news outlets, including The Arizona Republic, $46,000 and the ACLU $23,000 for attorney fees and costs.
Dershowitz said he intends to appeal. Tuchi ordered payment due in 30 days, but if appealed it will go on hold.
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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 “John Tuchi” by Federalist Society.
Editor’s note: This article has been updated to reflect Lake’s lawsuit was in Tuchi’s court.
