The Arizona Court of Appeals reversed a lower court’s awarding of attorney’s fees against three prominent conservative Arizonans last week. A three-judge panel held that the defamation lawsuit Senator Mark Finchem (R-Prescott) and former legislator Anthony Kern filed in February 2021— joined later by Representative Paul Gosar (R-AZ-09) (pictured above, right) — against former Yuma Democratic legislator Charlene Fernandez over her letter to the FBI demanding an investigation of over their connections to the January 6 protest was not groundless. The three were at the Capitol that day but did not participate in the unauthorized entry of the building or aggressive behavior.
Finchem (pictured above, left) expressed his disappointment that the court didn’t go further in its ruling to The Arizona Sun Times. “The court had a golden opportunity to check the long-standing injustice of NYT v. Sullivan by addressing bluntly false claims by political opposition under color of authority, but took the cowardly route, ignoring the evidence,” he said. “Now that I, and the other defendants have been exonerated what recourse do we have to address the injustice? It is if little comfort that those who perpetrated the real BIG LIE got away with it and the court did nothin to hold those liars accountable. At least we don’t have to pay for the abuse that we endured for the cause of liberty.”
While the appeals court has repeatedly ruled against conservatives concerned about election wrongdoing since 2020, this abrupt change is likely due to the Arizona Supreme Court holding in May last year that attorney’s fees and sanctions should not be awarded against plaintiffs and their attorneys in election related lawsuits, even if the complaints are a “long shot.”
Two of the judges on the panel were not expected to rule this way, legal experts told The Sun Times. Judge Randall Howe is considered one of the furthest left judges on the bench, and Judge Daniel Kiley dismissed an election lawsuit over the use of Sharpies to mark ballots, avoiding any discussion of the evidence.
Fernandez’s letter, which was signed by other Democratic legislators, said the three “publicly advocated for the overthrow of the election results which encouraged precisely the kind of violence that we witnessed.” The letter said they “actively encouraged the mob, both before and during the attack on the Capitol,” and “encouraged, facilitated, participated and possibly helped plan this anti-democratic insurrection.” The Democrats also claimed that “social media posts strongly suggest[ed]” that Finchem and Kern “were present at the riot in Washington D.C. on January 6 and actively encouraged the mob.”
Kern (pictured above, center) told The Sun Times when the lawsuit was filed that the letter hurt his ability to find employment in law enforcement, and Finchem said it destroyed his reputation.
The trial court judge, Yuma Superior Court Judge Pro Tem Levi Gunderson, said in his August 2022 opinion that the lawsuit “was brought for an improper purpose, having been filed against a political opponent primarily for purposes of harassment.” He continued, “It very much appears that a significant portion of the contents of the original complaint and the first amended complaint were written for an audience other than the assigned trial judge.”
Gunderson included a warning directed at the plaintiffs’ attorneys, criticizing one for stating that he was “zealously representing” his client, since the State Bar of Arizona’s ethics rules no longer state that attorneys must zealously represent their clients. “Arizona attorneys are expected to be competent and diligent but are not expected to be zealous,” he said. “This is an extremely important distinction.”
The appeals court began its analysis by stating that the standard for awarding attorney’s fees is if a plaintiff “[b]rings or defends a claim without substantial justification,” citing A.R.S. 12–349(A). “A claim is ‘without substantial justification’ if it ‘is groundless and is not made in good faith,’” the court added, citing A.R.S. 12–349(F).
Fernandez had claimed that her complaint was immune from a defamation lawsuit since it was privileged communications given to law enforcement about potential criminal activity. However, the appeals court said it wasn’t clear that her communication was privileged. “The issue on appeal is not whether the January 2021 letter was privileged but whether the existence of a privilege was ‘fairly debatable.’” The justices said while the privilege applies to witnesses and victims, Fernandez was neither so “[p]laintiffs could fairly debate whether the January 2021 letter was privileged.”
The court said just because a complaint is found to lack merit, does not mean it is groundless. The court claimed that even though the plaintiffs stated in their social media posts that they opposed violence at J6, Fernandez wasn’t responsible for being aware of those posts, so she didn’t show malice. Since the plaintiffs are public figures, defamation claims require an additional element of proving malice.
Since the court found that the lawsuit was not groundless, the justices said it wasn’t necessary to even examine whether it was not made in good faith. The court awarded the plaintiffs their costs for the appeal, since they prevailed.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
Photo “Mark Finchem” by Mark Finchem; “Anthony Kern” by Anthony Kern; and “Paul Gosar” is by Gage Skidmore CC2.0.
