PHOENIX — A special state law designed to promote political participation and debate does not give Kari Lake the right to make up facts about Maricopa County Recorder Stephen Richer, promote them, and not have to answer for them, his attorney is arguing.
Lake is trying to use that law to toss out Richer’s defamation lawsuit against her even before any evidence is heard.
But the law is designed only to protect “the lawful exercise of a constitutional right,’’ said Richer’s attorney, Daniel Maynard. He said that provides no shelter for Lake, the losing 2022 Republican gubernatorial candidate and a 2024 U.S. Senate candidate, to avoid being held financially liable for making false statements and causing damage to Richer and his family.
“There is no constitutional right to make defamatory statements with actual malice,’’ Maynard said in filings Monday with Maricopa County Superior Court Judge Jay Adleman.
The Arizona Constitution has a specific provision prohibiting any measure that denies someone the right to sue for damages, he pointed out. He said accepting Lake’s argument that she is absolutely protected by the law regardless of the truth or falsity of her statements — and that Richer can’t get his day in court — would be unconstitutional.
The lawsuit
The litigation is over two claims made by Lake in her ongoing argument that she should be declared governor — or at least that the 2022 election she lost to Democrat Katie Hobbs by more than 17,000 votes should be rerun — based on various allegations she made.
In this case, Maynard said, Lake accused fellow Republican Richer of intentionally printing the wrong size ballots to “sabotage’’ Election Day voting and said he injected more than 300,000 phony ballots into the system.
She did so even after a trial judge hearing Lake’s challenge to the election results found she had provided nothing more than “speculation’’ and “conjecture’’ to support her claims of intentional misconduct, Maynard said.
And, he said Richer had nothing to do with Election Day operations in Maricopa County, which were run by the county supervisors and their elections department.
“Therefore, he could not have programmed — or instructed others to program — printing of mis-sized ballot images on Election Day,’’ Maynard wrote.
Richer sued Lake, her husband Jeffrey Halperin, her gubernatorial campaign and the Save Arizona Fund that Lake has used to raise cash for political purposes.
Normally would go to jury
Normally the question of whether Lake had defamed Richer would be left to a jury.
But Lake, represented by the First Amendment Clinic at the Arizona State University College of Law, contends Richer’s case shouldn’t be allowed to get that far.
A 2006 law requires judges to immediately dismiss lawsuits they determine are “substantially motivated by a desire to deter, retaliate against or prevent the lawful exercise of a constitutional right,” said Gregg Leslie, the First Amendment Clinic’s supervising attorney.
He said the state’s anti-SLAPP — Strategic Action Against Public Participation — law is designed to promote public discourse. Leslie said that makes the question of whether Lake was lying legally irrelevant in her effort to avoid having to go to court.
“Evaluation of the protections of (the law) have nothing to do with whether the speech is ‘false,’ as plaintiff has alleged,’’ he said, because there would be no facts on the record when someone like Lake uses the anti-SLAPP law to ask a judge to have the case dismissed out of hand.
Leslie said it makes no difference that judges in Lake’s other lawsuits challenging the 2022 election ruled she failed to provide sufficient evidence of fraud to prevail.
“She is still entitled to have an opinion and state her beliefs about what happened in the 2022 election and who is to blame for mistakes,’’ he told Adleman.
Maynard said that’s not what this is about. He said it’s about false statements she made disregarding the truth and, more immediately, about her claim the anti-SLAPP law entitles her to have Richer’s lawsuit dismissed even before he goes to court, “no matter how false or malicious the statements may be.’’
“The anti-SLAPP statute authorizes dismissal of cases only where a defendant presents prima facie proof, at the outset of litigation, that a legal action is motivated by a desire to squelch the lawful exercise of a constitutional right,’’ Maynard said. “It is not, as defendants urge, a ‘get out of defamation free’ card.”
Maynard said the protections of the Anti-SLAPP law require two things: proof that someone lawfully exercised a constitutional right, and, in this case, proof that Richer’s lawsuit is improperly motivated by a desire to prevent or retaliate against that exercise.
He said Lake had no constitutional right to say what she did and escape being responsible for it.
“The First Amendment gives defendants ample breathing space to criticize Richer’s performance of his duties as recorder,’’ Maynard said. “But under longstanding First Amendment principles, a public official may recover damages for defamation if he proves the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’’
He said there is no evidence Richer sued to squelch Lake’s constitutional rights.
“Richer’s motivation is to put a stop to the specific defamatory statements at issue in this case,’’ Maynard said, and to “to remedy the harm done to him.”
Leslie, however, said it is precisely this kind of situation for which the anti-SLAPP law was designed.
“Under this law, even though it may look like defendants have an advantage — getting a libel case dismissed solely because it interferes with their free speech rights — it is essential to realize that is exactly what the Legislature intended,’’ he told the judge. “Speech about the integrity of the election process is exactly the type of ‘public participation’ that the Legislature chose to protect.’’
No date has been set for Adleman to consider the arguments.
No cost to Lake
Leslie has defended the decision by the First Amendment Clinic to represent Lake without cost, even though she has several private lawyers who are handling other aspects of her legal fights over the 2022 election outcome.
“Politicians, especially those who are not public officials, have First Amendment rights when a public official takes them to court to demand they be silenced,’’ he told Capitol Media Services. “We would not be very respectable First Amendment attorneys if we only took on causes where we wanted to promote a particular political position.’’
The clinic is funded by a nearly $1 million grant from the Stanton Foundation, established by the late Frank Stanton, longtime president of CBS.
“The clinic is part of a law firm within the law school that does not act in the name of the university (ASU) or the college of law, much like a criminal defense clinic’s representation of a client does not mean that the school (or the clinic) favors the actions of a particular defendant,’’ Leslie said.
