A defamation lawsuit that Maricopa County Recorder Stephen Richer filed against Kari Lake is being allowed to proceed, despite the fact Arizona State University’s Sandra Day O’Connor College of Law First Amendment Clinic joined Lake in her defense requesting that the lawsuit be dismissed. Richer’s lawsuit, which is being paid for by the Protect Democracy Project, accused Lake of falsely stating that he intentionally sabotaged the election. Approximately 300,000 ballots in the 2022 election lacked a chain of custody, a class 2 misdemeanor, but the county has strenuously fought litigation efforts to allow Lake to inspect the ballot affidavit envelopes and other requests from her and voter integrity groups related to the election anomalies.
Maricopa County Superior Court Judge Jay Adleman, who heard oral arguments on Lake’s Motion to Dismiss on December 19, issued his ruling denying the motion that same day. He indicated he already found Lake guilty without putting on a trial first. “In the Court’s view, Defendant Lake’s statements are ‘provably false’ under prevailing Arizona law,” he said.
Adleman noted that it is a high bar to obtain a dismissal. He said, “Dismissal is permitted only when a ‘plaintiff[] would not be entitled to relief under any interpretation of the facts susceptible of proof,’” and “a motion to dismiss requires the trial court to accept all material facts alleged by the nonmoving party as true.”
He said Richer offered two “well pled factual allegations” to support his lawsuit. First, he cited Richer’s assertion that the recorder’s office is not responsible for Election Day operations. However, although the Maricopa County Supervisors are statutorily obligated to oversee Election Day operations, the recorder is statutorily obligated to oversee mail-in ballots, which includes the 300,000 ballots Lake referred to. Additionally, Richer testified in court during Lake’s election contest trials regarding Election Day proceedings. For example, he said when ballots leave the voting centers in the bins, they are not counted so no one knows how many there are.
Second, Adleman said “the independent report overseen by former Chief Justice Ruth McGregor did not find any evidence of intentional misconduct involving Election Day ballots.” That report was inconclusive about the cause of the printer issues on Election Day. Jennifer Wright, who was the Election Integrity Unit civil attorney for the Arizona Attorney General’s Office during the election and who performed her own investigation of Maricopa County’s election problems going back to the 2020 presidential election, told The Arizona Sun Times the report was “meaningless” since it did not include an analysis of the printer logs.
Wright said the investigation never attempted to determine why the problems happened, instead merely confirming that there were problems. She posted on X, “It seems to ‘exonerate’ MC without determining the ROOT cause of failure.”
The report proves printers failed, but doesn't identify WHY some Oki printers experienced more problems than others.
It seems to "exonerate" MC without determining the ROOT cause of failure.
It's surface level stuff.
It's embarrassing.
It would fail cross-examination.
4/4— Jen Wright (@JenWEsq) April 11, 2023
Next, Adleman said Lake’s accusation that Richer intentionally inserted 300,000 ballots into the election was “provably false” since the trial court judge and appellate court judges ruled against her on her election lawsuit where she brought up the problems with chain of custody. Those judges did not address the fact each violation was a class 2 misdemeanor.
Adleman refused to accept Lake’s defense that her speech constituted “imaginative expression or rhetorical hyperbole,” which is considered protected free speech by the courts.
In order for Richer to prevail on his lawsuit, case law requires that he must prove Lake had “actual malice” against him. Adleman said Richer “supported his defamation claims with assertions of actual malice.” Two of those assertions were that Lake “had a financial motivation to solicit donations in connection with … [her] defamatory statements” and “engaged in falsehoods as part of a pre-election narrative.”
Adleman concluded stating that the lawsuit was not brought for an improper purpose, such as for “a means of deterring the lawful exercise of free expression.”
Even if Adleman ultimately finds Lake committed defamation against Richer, on appeal it may likely be reversed by the Arizona Supreme Court. The state’s highest court ruled on February 1, 2022 that State Senator Wendy Rogers (R-Flagstaff) did not defame a local modeling agency when she ran a radio ad labeling her primary opponent, Steve Smith, “a slimy character whose modeling agency specializes in underage girls and advertises on websites linked to sex trafficking.”
Pamela Young of the Young Agency sued Rogers, and even though Young was not considered a public figure under the law, so was not required to prove malice – an easier case to win than Richer as a public official – the Arizona Supreme Court held that allowing Young to prevail would inflict “a serious chilling effect upon important, even if repugnant, political speech.”
Writing for the majority, Arizona Supreme Court Justice Clint Bolick said, “[T]he First Amendment necessarily protects both the profound and the profane, not only conscientious candidates and civil discourse but unscrupulous politicians and negative campaigns as well.” He warned that ruling in favor of Young “would not only chill free speech in this case but also open the floodgates to litigants who are aggrieved by perceived indignities visited upon them by politicians.”
He concluded citing U.S. Supreme Court decisions, which found that “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide `adequate breathing space to the freedoms protected by the First Amendment.””
Richer is known for starting a PAC for GOP election fraud deniers. Adleman ordered the parties to provide an Amended Scheduling Order by January 19, 2024. His ruling is located on the Maricopa County Clerk of the Court’s website under Minute Entries for CV2023009417.
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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].
