Monday, March 6, 2023

NEW and FIRST: Finchem Attorney Will Fight Sanctions Because He Hadn't Had Time To Update Judge On Number Of Impacted Voters (Interview)

UPDATE, 3/8, 3pm: "NEW and FIRST: Finchem Attorney Will Fight Sanctions Because He Hadn't Had Time To Update Judge On Number Of Impacted Voters (Interview)"

In a ride-ranging discussion, Finchem attorney Dan McCauley told Arizona's Law yesterday that he will ask Judge Julian to reconsider her sanctions ruling before including it in his appeal of the dismissal.

McCauley will base his argument on his claim that the judge used out of date numbers when noting that Finchem only challenged 80,000 "missing votes" while losing by more than 120,000. He explained to Arizona's Law that the 80,000 number was what he had had available when filing the Election Contest 7 minutes before the deadline at 5pm on December 9, but that he later learned (from the Lake Contest) that approximately 250,000 votes were allegedly lost. 

McCauley told Arizona's Law that he did not have a chance to amend the Complaint because of the rapid pace at which the litigation moved - as statutorily required. When asked why he did not mention the new information at the December 16 oral argument on the Motions to Dismiss, McCauley responded by claiming the Judge did not give him a chance because she was questioning him like an adversary about whether or not the Rules of Civil Procedure applied in an Election Contest.

Arizona's Law also asked why Finchem is fundraising this week with a goal of $200,000 "to pay for lawyers". McCauley indicated he is "not doing charity work" but would not explain why Finchem's campaign committee showed no payments to him last year. (It is possible that McCauley was paid from some other source, and that this week's appeal for the campaign committee will pay McCauley and/or opposing counsel.)

Note: This article was held until this afternoon at the request of Mr. McCauley, so that Judge Julian would not be alerted to the about-to-be-filed Motion to Reconsider.

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UPDATE, 5:15pm: In a statement sent to Arizona's Law this evening, Mark Finchem called for the judge to be "removed", calling it an "abuse of power" and "doing the bidding of Marxists" (instead of Mark-ists?). Finchem also posted his fight to the death statement on social media.
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ORIGINAL ARTICLE, 3/6, 10:15amSanctions Against Mark Finchem/Attorney For "Conscious Decision To Pursue (Election Contest That)...Had No Legal Merit" (READ Decision)

In a long-awaited decision, Maricopa County Superior Court Judge Melissa Iyer Julian decided that unsuccessful Secretary of State candidate Mark Finchem and his attorney, Dan McCauley, WILL BE SANCTIONED for filing a "groundless" Election Contest. The amount of attorneys' fees incurred by the now-Secretary of State Adrian Fontes and the Secretary of State's Office will be submitted later this month.

Per Arizona statutory and case law, found that the Election Contest was "groundless" and was "filed in bad faith." She has not yet decided how she will apportion the sanctions award between Finchem and his attorney - either one could be liable for the entire amount requested by the defendants, or they could be jointly (and, severally) responsible for it.

There has been confusion recently among Lake supporters about the case law surrounding what an Election Contest needs to prove. Judge Julian succinctly wrote: "Attorney McCauley also ignored the Arizona cases establishing that an election contest requires not only alleged acts of misconduct, but also evidence that the misconduct or irregularities complained of rendered the outcome of the election uncertain. McCauley did not endeavor to explain how his client’s claims satisfied that standard nor did he articulate a reasonable argument in favor of changing it."

During the oral arguments before Judge Julian dismissed the case, attorney McCauley acknowledged that he was aware he might get sanctioned or even disbarred for bringing this case as he did. The defendants' attorneys utilized that admission in their pleadings, and the judge noted it, as well.

"That McCauley had some awareness that this case lacked merit is apparent by his own comments during oral argument whereby he expressed being less at risk of being disbarred as a result of the filing given his impending retirement. This too supports sanctions as it demonstrates a conscious decision to pursue the matter despite appreciating that the contest had no legal merit."

Finchem had appealed the decision to dismiss the Election Contest, and then had left it to get dismissed. The appeal received a second life, and his Opening Brief is due in one month. He will be able to include today's sanctions ruling in that brief. If he is successful in overturning the dismissal, this ruling would likely be vacated, also.


SANCTIONS SCOREBOARD UPDATE

Finchem now joins unsuccessful gubernatorial candidate Kari Lake in the to-be-sanctioned department, although she was only found responsible for some $30,000 for the defendants' witness fees. Finchem and/or his attorneys are also facing sanctions in TWO other lawsuits related to elections. An unsuccessful defamation case he, Anthony Kern and Paul Gosar filed against then-lawmaker Charlene Fernandez has a $75,000 sanctions tag that is now on appeal. And, Finchem and Lake filed a pre-election federal case trying to force only hand-counting of the November election - a District Court ruling on the $141,000 in attorneys' fees is pending. (A sanctions motion against unsuccessful Attorney General candidate Abe Hamadeh is currently pending in Superior Court.)




"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. 

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