UPDATE, 1/9, 8am: "SANCTION SCOREBOARD UPDATE: Up Is Down As Finchem Attorney Argues Court Should Punish Defendants For Moving For Sanctions (After Court Invited Them To File); READ Response"
In an 18-page head-spinner, Mark Finchem's I'm-ready-to-retire-before-I'm-disbarred attorney throws the kitchen sink at Superior Court Judge Melissa Julian to try to stave off sanctions. The Opposition filed late last week (and posted publicly for the first time below) starts off with a false statement and ends asking the judge to sanction the defendants instead.
In between, attorney Dan McCauley* oddly cites a securities statute as *the* "applicable statute" (rather than Rule 11 or A.R.S. §12-349).** He alternately argues that Arizona Rules of Civil Procedure do not apply in this case and do apply in this case. The latter is a subject which McCauley (unsuccessfully) argued with Judge Julian on the motions to dismiss the Election Contest.
The claim that "literally hundreds of thousand of (voters) then entered properly completed ballots into tabulation machines that repeatedly rejected those votes" is a fabricated statement that also falsely implies that those voters' ballots were not counted.
Chandler attorney Tom Ryan tells Arizona's Law "the only cogent argument is that Mr. McCauley is an old guy about to retire is the only proper consideration the court should make when deciding what to do with sanctions. And what she should do is make all the sanctions awardable against Finchem."
In fact, McCauley argues that sanctioning Finchem - a state lawmaker who lost his race for Secretary of State - should not be sanctioned, either, because it is "an improper, devious, bad faith scheme" which the "less obvious goal is to jeopardize his ability to finance his pending appeal."
That reference is to the dismissed Mark Finchem/Kari Lake pre-election suit to force Arizona to conduct last year's elections without any electronic machines. Lake/Finchem appealed the dismissal to the 9th Circuit and say they intend to bring it to the U.S. Supreme Court because it "is an important matter to the Nation and Mr. Finchem must not be deterred by a sanction from helping to fund the matter."
Of course, that is also the case in which Finchem's and Lake's attorneys are facing $140,000 in sanctions." (More on that case can be found below.)
In his closing, McCauley asks the court to both forbid defendants' attorneys from filing the permitted Reply and to sanction them for their "frivolous" Motion for Sanctions.
The Motion - appropriately - does not ask for a specific amount. Rather, it asks for Finchem and McCauley to be jointly and severally liable for attorneys' fees and costs, and an additional penalty of $5,000 (A.R.S. §12-349).** The Motion and the Judge's Minute Entry can be found here.
* There is legitimate question as to whether McCauley himself wrote this filing. He consistently refers to himself in the third person and several statements do not appear likely to come from a longtime attorney. Arizona's Law has asked him about this and will supplement as warranted.
** The Response states "Here, the applicable statute is clear and unambiguous. A.R.S. §44-2083 Sanctions for Abusive Litigation, addresses sanctions under ARCP Rule 11 and any applicable Title or Section of the Arizona Revised Statutes. Section D(1) of A.R.S. 44-2083 states in pertinent part that no award of sanctions or attorney’s fees can be imposed if it will impose a burden on a party or attorney and would be unjust, and the failure to make an award would not impose a greater burden on a party in whose favor a sanction would be imposed."
The first words of that statute read "In any private action arising under this chapter...." This chapter is *only* about securities litigation. Neither Rule 11 nor A.R.S. §12-349 contain a clause about considering "burden".
UPDATE, 1/4, 3pm: "Dershowitz Shouldn't Be Allowed "To Avoid The Consequences of His Actions", Maricopa County Tells Judge"
(Correction: An earlier version of this article incorrectly identified Lake's co-plaintiff as Abe Hamadeh. The correct co-plaintiff is (was) Mark Finchem.)
You're too late, and you should be looking at yourself and your own co-counsel, anyway. That is the summary of Maricopa County's quick response to Alan Dershowitz today.
Just before New Year's, the nationally-known attorney - who was part of the team representing Kari Lake and Mark Finchem in their pre-election (but dismissed in August) federal lawsuit to change how Arizona's November elections would be held (and votes counted) - tried for the first time to distance himself from the case.
Dershowitz claimed he was just a consultant for a small piece of the litigation puzzle and should be released from liability for the sanctions imposed by Judge John Tuchi. (The amount has not yet been set, but Maricopa County has asked for $141,000 to cover their attorneys' time.)
Maricopa County today told Tuchi that the pleadings - including the September Response to the sanctions motion - indicated that Dershowitz had given permission to say he was one of the attorneys signing off on the Plaintiffs' filings. Therefore, Dershowitz should actually be forcing his co-counsel to defend the digital signatures.
The County concluded: "This Court should not allow Dershowitz to avoid the consequences of his actions. He participated in the attempt to frivolously discredit Arizona and Maricopa County. He should be held responsible."
Today's Response even cites Arizona's Law's first article on Dershowitz's involvement in the case. We had asked Dershowitz about the glitch in his pro hac vice application in the case. He told us "Just a technical glitch in my pro hac application. It’s being fixed." We reported that, and Maricopa County uses it to highlight he would not have needed to apply to be approved to represent the plaintiffs if he was just a consultant.
(Interestingly, one of our questions to Dershowitz in May was about his involvement in other Arizona elections-related lawsuits. He was also listed as "pro hac vice applciation pending" - but not solely as "of counsel" - in the Arizona Republican Party's ill-fated Mohave County lawsuit claiming that Arizona's mail-in early voting system was unconstitutional.)
Judge Tuchi has yet to rule on Dershowitz's request.
ORIGINAL ARTICLE, 12/30, 9:45am: "SANCTIONS SCOREBOARD UPDATE: Lake/Finchem/Attys Aim To Reduce Sanctions From Pre-Election Lawsuit; Alan Dershowitz Aims To Get Out Of Them"
Kari Lake and Mark Finchem's attorneys in the pre-election lawsuit have explained to the judge why he should reduce the $141,000 in sanctions to Maricopa County taxpayers, or let him (Dershowitz) out of the penalty.
After previously dismissing the case with a scathing Order, U.S. District Judge John Tuchi ruled in favor of Maricopa County's request for sanctions. He told Plaintiffs' attorneys they could only respond about the appropriateness of the amount requested by the County.
As Arizona's Law's readers know, the nationally-known Alan Dershowitz was part of Lake and Finchem's legal team*. He filed a separate Response last night, as well as asking the Court to make Maricopa County prove why he should be on the hook for the sanctions.
Dershowitz - separately represented by Phoenix attorneys Dennis and Jack Wilenchik - argues that he was only retained by MyPillow's Mike Lindell to be "a consultant to Mr. Lindell’s primary legal team on First Amendment and related constitutional issues." That is in the Lindell defamation case; in this case, Dershowitz specifically developed the argument that there is a constitutional issue when a government retains a private company to help with elections, but then shields details on grounds of business secrets.
The filing also points out that Dershowitz is a "liberal Democrat who has almost never voted for a Republican candidate," and that he never challenged the results of the 2020 elections (including in Arizona).
(Dershowitz had had an opportunity to make the "I'm just an of counsel consultant" argument when Maricopa County first requested sanctions months ago. It is not yet clear whether the judge will listen to that now.)
The other attorneys followed Judge Tuchi's Order and focused on the time entries produced by Maricopa County's in-house and outside counsel. They did not ask for a specific reduction, but left that determination for the judge. (Judges love going through time entries. <sarcasm>)
(This is one of several active cases in which Finchem, Lake, attorneys and others opposing Arizona election laws and outcomes may be sanctioned. Here is our periodically-updated Sanctions Scoreboard.)
Next up: Judge Tuchi will approve or deny Dershowitz's request to make Maricopa County argue why the 84-year old attorney with medical conditions should be held jointly responsible. Tuchi will also rule on the appropriateness of Maricopa County's $141,000 application.
*He had some difficulty getting his application to join the team in Arizona court filed.
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