BREAKING UPDATE: Finchem Gets 2nd Chance, Will Proceed With Election Contest Appeal

UPDATE, 2/17, 4pm: "UPDATE: Finchem Gets 2nd Chance, And Will Proceed With Election Contest Appeal"

With his appeal granted a renewed life last week, defeated candidate Mark Finchem has decided to push forward with his appeal of last November's Secretary of State election. Finchem's attorney, Dan McCauley, tells Arizona's Law today that he finally paid the $280 appellant's fee on Wednesday because he had discussions with the former State Rep and he "directed my office to pursue his appeal."

Arizona's Law detailed in the article below how the Court of Appeals revived Finchem's left-for-dead appeal. Attorney McCauley had filed the Notice of Appeal in December after Judge Julian granted Adrian Fontes's Motion to Dismiss the case - stating he would take the appeal to the Arizona Supreme Court - but took no further action to get it there.

The briefing is currently set to continue into early June. The parties are also waiting for Superior Court Judge Julian to rule on the pending Motion(s) for Sanctions.

Original article, 2/8, 4pm: "Arizona Hit With A "Zombie" Election Contest Appeal From Mark Finchem (READ Docket)"

On December 21, Mark Finchem's ready-to-be-disbarred-for-the-cause-cuz-I'm-old attorney filed a Notice of Appeal nearly a week after Superior Court Judge Melissa Iyer Julian dismissed his Election Contest lawsuit for the Secretary of State's race. He has not filed anything since then to move the appeal along - not even the filing he was required to make.

Alex Gould/AZ Republic

Nevertheless, Finchem's appeal received new life this week, when the Court of Appeals told Dan McCauley that his Opening Brief is due by April 7.

McCauley declined to comment to Arizona's Law, noting yesterday that "we are waiting for direction from the client".

However, a review of the dockets (Superior, Division 1, Supreme Court), requests for information from the Clerks' offices and communications with some of the attorneys involved help us explain why this undead appeal is slowly ambling on.

McCauley is the attorney who ended his oral arguments by acknowledging that he might get disbarred for filing the legal action but that it was okay because he is old and ready to stop practicing law. He waited a long (given the expedited way elections cases are supposed to be handled) five days (Dec. 21) to file the required Notice of Appeal in the Superior Court.

We reported at the time that the case would likely be transferred to the Arizona Supreme Court, given those expedited processes and the then-impending inauguration of Adrian Fontes as Secretary of State. The Supreme Court's Clerk's Office also expected it, setting up an (unusual) anticipatory docket.

However, McCauley did not pursue the expedited handling, as provided in the court's rules. The Supreme Court CLOSED its anticipatory docket on December 28, in an Order that provided McCauley a road map on how to get the case moving.

The next deadline for Finchem's attorney fell on January 6 - after Fontes's inauguration. McCauley did not file his "Notice of Transcript Order and/or Statement of Issues". The Clerk's Offices do not change their required procedures just because McCauley did not file it.

So, on February 3, the Superior Court transmitted the record to the Court of Appeals. And on Monday, the Court of Appeals opened its docket and set the deadlines. (The docket became public on Tuesday, and we conducted extra reporting yesterday and today.)

If all of the parties' briefs are filed at the deadlines (as is often the case), the briefing will be completed in early June.

While Finchem has not explicitly been citing his appeal, he has continued fundraising under his "Never Stop Fighting" twitter handle. The former State Representative is pitching the Election Fairness Institute, an organization he set up in 2018 (along with then-Rep-now-Cochise County Recorder David Stevens.

Meanwhile, the parties are expecting a ruling from Superior Court Judge Julian on the Motion for Sanctions filed by Fontes's attorneys. (An appeal - even a zombie appeal - stops the trial court judge from taking certain types of actions; deciding sanctions is not stopped by the pending appeal.)

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.