Photo by Krisanapong Detraphiphat | Getty Images
The Arizona Court of Appeals reversed an earlier decision to award attorney fees to a former Democratic state lawmaker who was sued by GOP elected officials who said she had defamed them by connecting them to the violence of the Jan. 6 insurrection.
State Sen. Mark Finchem, U.S. Rep. Paul Gosar and former state legislator Anthony Kern were ordered in 2022 to pay $75,000 in attorney fees to former Yuma Democratic legislator Charlene Fernandez, But in a ruling Tuesday, the Arizona Court of Appeals reversed that decision.
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In February 2021, the three Republicans filed a lawsuit against Fernandez claiming that she defamed them by signing onto a letter with other Democratic state lawmakers asking the FBI to investigate the three men’s connections to Jan. 6. They did not sue the 43 other Democratic legislators who also signed the letter.
A trial court judge, and later the state appellate court, ordered the three men to pay Fernandez’s legal fees because the lawsuit “was groundless and not made in good faith.”
The Republicans had appealed to the Arizona Supreme Court, which sent it back to the Court of Appeals for reconsideration. That’s because the high court in 2024 significantly limited the circumstances in which courts can order plaintiffs to pay attorneys’ fees for their opponents.
In that case, which centered on the Arizona Republican Party’s 2020 lawsuit challenging post-election hand-count procedures, the Supreme Court said that lower courts had been too quick to conflate “long shot” legal arguments with “groundless” and bad faith arguments.
That ruling set a new standard for how courts are to determine what “not made in good faith” means as it relates to sanctions. The new standard is that a claim must both be groundless and the plaintiff knows it is groundless — or is indifferent to that fact — and pursues it anyway. Rather than evaluate “good faith” with a subjective standard and “groundlessness” with an objective standard, the Supreme court ruled, courts should use the standard set in the Arizona Rule of Civil Procedures to evaluate whether a claim is made in good faith.
In the Finchem, Gosar and Kern case, the Court of Appeals was tasked with applying that methodology to Fernandez’s request for attorney’s fees. The three-judge panel unanimously ruled against her claim.
“We deny her request because Plaintiff’s appeal of the superior court’s fee award was successful and therefore not brought ‘without substantial justification,’” the court said in its ruling.
The court still found that the suit brought by Finchem, Gosar and Kern was “meritless” and it should have been dismissed.
“Given that the January 2021 letter did not allege that Plaintiffs personally participated in the events of January 6, but merely requested an investigation into their involvement, Fernandez’s failure to further investigate on her own was reasonable,” the ruling said, adding that the lawsuit asked the court to rely on “hypothetical facts.”
While Finchem and Kern have both downplayed their involvement with the events leading up to Jan. 6, both men were present at the Capitol that day during the violence that occurred.
Footage reviewed by the Arizona Mirror has shown that Finchem was closer to the Capitol than he said he was, and he was recorded on the Capitol grounds while violent clashes with police were still ongoing.
Finchem has insisted that he never got within 500 yards of the Capitol building, but Getty footage of the failed attempt to stop Congress from certifying Joe Biden’s election shows Finchem walking directly in front of the east steps at the Capitol after pro-Trump rioters had already broken through a series of barricades and police lines, and then smashed their way into the Capitol building.
Kern, too, was much closer to the Capitol on that day than he claimed.
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