Maricopa County Superior Court Judge Melissa Julian awarded sanctions last week against Mark Finchem and his attorney Tom McCauley over Finchem’s lawsuit challenging his election loss in the Arizona Secretary of State’s race. Democrat Adrian Fontes, who won the race, asked the court for sanctions in December. Finchem and McCauley will be required to pay attorneys fees, the legal costs of Fontes’, and then-Secretary of State Katie Hobbs’ office defending against the lawsuit.
Finchem issued a statement after the ruling.
“The 6-page order by Judge Julian to award lawyer reimbursement to leftist litigators who represent the Sinaloa Cartel, now the installed Arizona Secretary of State Adrian Fontes, and Katie Hobbs, the installed Governor of Arizona, is contemptible judicial overreach beyond all statutory and Rules of Civil Procedure for the Superior Courts of Arizona,” he said. “This award is designed to quash any and all dissent where elections are in question. The Maricopa County 2022 election was the most embarrassing election in American history. As a result, 70% of Americans doubt the outcome of the 2022 elections in Arizona (Rasmussen Poll).”
He added, “Judge Julian is punishing me for daring to assert my 1st Amendment protections, which constitutionally guarantee separation of powers, and has shredded statutory protection for contestants to challenge suspicious election results. This is the dawn of the one-party state banana republic as we have seen in Venezuela and many other South American nation-states. Judge Julian should be removed from the bench for her abuse of judicial authority.”
In her eight-page opinion, Julian said the lawsuit was “groundless and not brought in good faith,” and would not have “changed the vote count enough to overcome the 120,000 votes he needed to affect the result of this election.” The latter is the same standard that judges have used to dismiss election lawsuits by Kari Lake and Abe Hamadeh. However, both Lake and Hamadeh provided a precedent in Arizona law to the courts, which used a different standard; the courts there merely required that the evidence cast “uncertainty” on the outcome.
Judges around the country have frequently awarded new elections without requiring a showing that it would have changed the election results, and Arizona judges have also done so. For example, in 2019, a judge ordered a new election for a Georgia House seat based on finding that four voters were ineligible. In the Arizona case Reyes v. Cuming, the court held “that there was no evidence that any ballots were cast by persons other than registered voters is irrelevant.” Lake’s reply brief in the Arizona Court of Appeals expounded, ”courts have never required a specific number of disenfranchised voters to void elections.”
Julian said there was a preponderance of evidence that Finchem filed the lawsuit in bad faith because he only pointed to 80,000 potentially “missing votes,” but he did not point to enough votes to change the election results. Finchem lost by 120,208 votes. However, the complaint asserted that 201,232 votes wrongly went to Fontes.
Julian admitted that “sanctions should be awarded only in rare cases, so as not to discourage legitimate challenges.” She also said, “The moving party bears the burden of demonstrating by a preponderance of the evidence that the claim was both groundless and asserted in bad faith, ‘with the absence of even one element rendering the statute inapplicable.’”
Julian relied on Williams v. Fink, a 2019 case decided by the Arizona Court of Appeals, which didn’t involve allegations of election fraud. That involved a complaint about the location of the candidate’s name on the ballot, it did not involve claims of voter disenfranchisement and accusations of numerous felonies.
Julian ignored Arizona election law precedent, providing that election laws are mandatory, not optional. The Arizona Supreme Court held in its 1994 decision, Miller v. Picacho Elementary School District No. 33. “Election statutes are mandatory, not ‘advisory,’ or else they would not be law at all.” Julian stated, “Finchem’s claims that illegal votes were cast as a result of alleged errors in the laboratory and software certifications were groundless.”
State law requires voting machines to comply with the Help America Vote Act of 2002 and “tested and approved by a laboratory that is accredited pursuant to the Help America Vote Act of 2002.” A group of Arizona citizens challenging the legal status of the voting machine tabulators found that the labs that certify the machines were not accredited when the tabulators received their certificate of conformance. Their accreditations expired in 2017 and 2018.
Julian said Fontes’ counsel provided evidence the labs were properly accredited prior to the election. However, one of the group members researching the issue, Daniel Wood, told The Arizona Sun Times, “No one in America has provided factual evidence that the laboratories have been constitutionally or lawfully accredited.”
Next, Julian cited that Finchem could not find other attorneys to take the case. The 65 Project has been filing bar complaints against election attorneys who litigate election challenges for Republicans.
She said, “At a minimum, concerns raised by other attorneys should have prompted further investigation into the contest’s validity.”
However, the reply brief to the motion for sanctions explained that other attorneys declined to take the case because of concerns over validity, but because “they were familiar with the vitriol, mis-information and vicious half-truths put forward by the opposition in election contest cases.”
Julian brought up McCauley’s statements expressing his fear that he would be disbarred as evidence that he’d brought the lawsuit in bad faith instead of acknowledging that he was afraid that the 65 Project and other progressive activists would come after him.
She said, “This too supports sanctions as it demonstrates a conscious decision to pursue the matter despite appreciating that the contest had no legal merit.”
Finchem did not retract any of his complaint. Instead of acknowledging this as evidence he had faith in it, Julian took an opposite interpretation, that he was going ahead despite being meritless.
Julian assumed and claimed that McCauley did not check to see whether Finchem’s claims were valid.
“Once McCauley accepted the assignment, he had an obligation to conduct a reasonable investigation to determine whether and to what extent viable challenges to the election could be asserted on Finchem’s behalf,” she said. “He did not do so.”
Julian stated that the complaint ignored Arizona law which requires “alleged acts of misconduct” and “evidence that the misconduct or irregularities complained of rendered the outcome of the election uncertain.” However, Reyes v. Cuming held that violating election laws is enough to constitute misconduct and overturn an election. The Arizona Court of Appeals stated in 1997, “disregarding election laws can per se constitute misconduct.”
Julian said, “Finchem’s amended statement was accompanied by a number of documents detailing election irregularities and asserting criticisms of the voting software and the accreditation of the testing laboratory.”
Julian stated that some claims were barred by the doctrine of laches but didn’t explain how Finchem’s timely filed election lawsuit was too late.
Julian declined to impose additional penalties or damages. Fontes and Hobbs have 20 days to submit an application for repayment and list the attorney’s fees and taxable costs.
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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.
