Wednesday, December 20, 2023

BREAKING UPDATE: Kari Lake Convinces AZ Supreme Court To Grant Brief STAY In Stephen Richer Defamation Proceeding

UPDATE, 1/17, 8:30am: "BREAKING UPDATE: Kari Lake Convinces AZ Supreme Court To Grant Brief STAY In Stephen Richer Defamation Proceeding"

The Arizona Supreme Court granted Kari Lake a temporary stay in the defamation case filed against her by Maricopa County Recorder Stephen Richer. 

In an Order issued late yesterday, the Court emphasized that the stay was only a short-term measure while they consider whether to accept Lake's appeal of a decision that the case not be dismissed at the earliest stage. They gave Richer three weeks (Feb. 6) to respond to Lake's Petition for Review.

"IT IS ORDERED that proceedings in the superior court are stayed for the limited purpose of obtaining a response to the Petition for Review."

This puts a halt to discovery and planned depositions, something Lake has been pushing for at every court level.

Lake is represented before the Supreme Court by private attorneys Jennifer Wright and Tim LaSota, as well as ASU Law's First Amendment Clinic.

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UPDATE, 1/10, 11am: "BREAKING: Kari Lake's Special Action Appeal In Stephen Richer Defamation Immediately DISMISSED By Appeals Court"

Arizona's Law has received confirmation that, without giving Maricopa County Recorder Stephen Richer an opportunity to oppose it, the Court of Appeals today DISMISSED the Special Action appeal filed last week by Kari Lake. 

Lake was challenging the trial judge's refusal to dismiss Richer's lawsuit claiming Lake repeatedly defamed him with false attacks about the 2022 elections process. The appellate judges refused to accept jurisdiction of the Special Action, and the case will continue at the trial court level.

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UPDATE, 1/5, 11am: "UPDATE: Kari Lake Files Special Action Appeal Challenging Judge's Refusal To Dismiss Stephen Richer's Defamation Case Against Her"

(11:45am: Special Action Petition added.)

Kari Lake and her fundraising committee have filed a Special Action appeal challenging last month's decision to proceed with Maricopa County Recorder Stephen Richer's defamation case.

Maricopa County Superior Court Judge Jay Adleman DENIED Lake's twin Motions to Dismiss on December 20 (below), permitting the case to move forward. The new appeal challenges Adleman's conclusions on both motions. Although we have not yet seen the Special Action Petition, ASU Law School's First Amendment Clinic is listed as co-representing Lake. That indicates that she Lake is challenging the denial of the anti-SLAPP Motion, as well as the denial of her Motion claiming that Richer has no way of succeeding in the defamation action.

On the anti-SLAPP ("Strategic Lawsuits Against Public Participation") decision, the ASU Law School's First Amendment Clinic (continues to) claim that the burden shifts to Richer to prove that he is not simply trying to stifle Lake's campaign rhetoric simply because he has filed a defamation case, "particularly in the context of a political campaign". Judge Adleman rejected that argument.

On the other Motion to Dismiss, Lake argues that her comments attacking Richer are protected by the First Amendment and were "substantially true". (She states that he should resign if he cannot handle her criticisms.) She attempts to get around the issue that those are defenses to be brought up later in a case by noting that she had offered other documents and that Richer had his chance when the judge in her failed Election Contest refused to grant sanctions against Lake.

The deadline for Richer to respond to the Petition is January 18.

(We will update this once we have received and reviewed the Special Action Petition.)

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This article was reported by AZ Law founder Paul Weich. 

"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.

Wednesday, December 13, 2023

BREAKING: FAREWELL, DAN MCCAULEY: Finchem's I'm-Old-So-I-Don't-Care-If-I'm-Disbarred Attorney Is Relieved Of His Duties In Election Contest Appeal

UPDATE, 12/20, 4:45pm: "FAREWELL, DAN MCCAULEY: Finchem's I'm-Old-So-I-Don't-Care-If-I'm-Disbarred Attorney Is Relieved Of His Duties In Election Contest Appeal; Oral Argument Vacated, But No Extension"

The Court of Appeals again wasted no time in rejecting Mark Finchem's latest effort to delay his 2022 Election Contest appeal. Dan McCauley, his attorney who famously told the trial judge that he took the case because he was ready to retire (even involuntarily) is now off the case.

However, the judges vacated the oral arguments scheduled for January 31 and said they would proceed to conference and proceed with the opinion process at that point... unless Finchem's new counsel convinces them otherwise.
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UPDATE, 12/19, 2pm: "BREAKING: IF AT FIRST... - Mark Finchem Tries Again To Get His, Uh, Disciplined Attorney Out Of His 2022 Election Contest Appeal"

It took Court of Appeals judges just one day last week to reject efforts by Mark Finchem's attorney to withdraw from the Election Contest appeal and to set the calendar back by more than a year. He has refiled the requests with a bit more detail, and that might be enough to partly succeed.

Last week's effort (below) from attorney Dan McCauley simply stated that the requests were because of a finding by the State Bar in his disciplinary proceeding. That was too vague for either Defendant Adrian Fontes or the appellate judges.

This week's efforts (below) note that the attorney who represented McCauley in the disciplinary proceeding believed that a conflict of interest existed between McCauley and Finchem, and that the briefs should be withdrawn. McCauley includes a statement from Mark Finchem, as well.

Fontes's counsel (Craig Morgan) has responded, indicating that the additional information supports McCauley's withdrawal. However, he argues to the judges that they should not give Finchem four months to find new counsel and then re-brief the appeal. 

Alternatively, he argues, Finchem should be responsible for reimbursing Fontes for the attorneys' fees associated with the initial briefing (if there will be new briefs required).

Oral arguments in this long-languishing appeal - which (currently) focuses solely on the $48,000 in sanctions assessed by the trial court - are scheduled for January 31.

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UPDATE, 5:15pm: "Mark Finchem's Attorney SETTLES Bar Disciplinary case before Jan. 17 hearing"

The State Bar of Arizona has told Arizona's Law that Daniel McCauley has settled the Bar's disciplinary Complaint against him. Although they would not divulge the terms of the settlement, it is apparent that McCauley (and his attorney) believe that withdrawing from the ongoing appeal of the sanctions against both him and (his client) Mark Finchem was necessary.

Adrian Fontes objected to McCauley's withdrawal partly based upon the failure to elaborate on the Bar's finding. Below is the Bar's Complaint filed in August, McCauley's Answer filed in October, and the Notice of Settlement.

The Bar's proceeding against McCauley was scheduled to go before a judge on January 17.

The Bar's Complaint goes point by point through the Election Contest allegations McCauley presented to the judge last year, noting which ones he knew or should have known were false.

Today's news comes one day after the Washington Post reported that similar Complaints are pending against Kari Lake attorneys Bryan Blehm, Kurt Olsen and Andrew Parker.
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ORIGINAL ARTICLE, 12/13 at 4:45pm: "BREAKING: Court REJECTS Mark Finchem's Attorney's Effort To Escape The Election Contest Sanctions Appeal Because Of State Bar Disciplinary Action"

Mark Finchem's ready-to-be-disbarred-because-I'm-old attorney, Daniel McCauley, tried to use the disciplinary proceeding to escape from his appeal of the $48,000 in sanctions AND reset the appeal back to square one. The Court of Appeals swiftly rejected the effort.

Yesterday, McCauley asked to withdraw from the appeal and to cancel the briefs he had already filed in the election contest case. He noted that it was because of the "finding by the State Bar of Arizona, in PDJ 2023-9064". However, he did not elaborate on what the finding was that caused a conflict between him and his client.

McCauley famously told the trial judge in the case that he represented Finchem because he was ready to retire and was thus less concerned about the State Bar disbarring him.

Defendant Adrian Fontes, who defeated Finchem in the 2022 election for Secretary of State, opposed the Emergency Withdrawal. He explained to the court that it would be inappropriate to send the appeal process back to day one, when oral argument was already scheduled for January 31, 2024.

The Court of Appeals agreed. Today, they rejected Finchem's motions and stated that they did not comply with court rules.

Arizona's Law has requested the State Bar's finding against McCauley and will update as warranted.

 

This article was reported by AZ Law founder Paul Weich. 

"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.

Arizona one of 8 states joining U.S. FTC in suing to block Kroger (Fry's)/Albertson's-Safeway merger

 Arizona AG Kris Mayes, the FTC and several other states are suing to BLOCK the Fry's (Kroger)/Safeway-Albertson's merger. The case ...