PHOENIX — Three current and former GOP lawmakers are hoping to avoid paying the legal fees of a Democrat whom a judge said was unfairly sued by them for asking the FBI and Justice to investigate their actions around the Jan. 6 riot.
The trio is asking the Court of Appeals to reinstate their slander suit against the Democrat, Charlene Fernandez, a former state lawmaker. That was tossed out last year by Yuma County Superior Court Judge Levi Gunderson who said Fernandez had an absolute First Amendment right to do what she did.
Their attorney contends Gunderson was wrong in requiring the Republicans, Mark Finchem, Anthony Kern and Paul Gosar, to shell out $75,000 that Fernandez, then a state representative from Yuma, had to pay to her attorneys to convince the judge that the lawsuit lacked merit and “was brought for an improper purpose, having been filed against a political opponent primarily for the purposes of harassment.’’
The trio’s attorney, Kelley Jancaitis, said Finchem, Kern and Gosar had a legal basis to believe Fernandez knew there was no factual basis for the federal investigation of their Jan. 6 activities. She said that entitled them to sue Fernandez for slander.
Allowing the sanctions imposed by the judge to stand “will stifle creative advocacy” that protects rights, Jancaitis contends.
She also has another legal theory.
Jancaitis said Fernandez and other Democrats who signed the letter to the federal agencies said that Finchem, Kern and Gosar were involved in an “anti-democratic insurrection’’ to keep the 2020 presidential election results from being certified, which would be an act of treason. The same charges were repeated in a press release.
“It was a basic riot,’’ Jancaitis told the appellate judges, insisting there is a difference. She said a riot, as opposed to an insurrection, would not have served to overturn the election.
At issue is a Jan. 12, 2021 letter signed by Fernandez and 41 other Democratic state lawmakers to the federal agencies asking that they investigate the trio, all of whom were in Washington, D.C. for the Jan. 6 event.
The letter said Finchem and Kern, both state lawmakers at the time, went to Washington to “actively encourage the mob, both before and during the attack on the Capitol.’’ It claimed the pair “sought to conceal the consequences of their conduct by falsely blaming ‘Antifa.’ ‘’
It also raised issues about Gosar and his fellow Arizona Republican U.S. Rep. Andy Biggs.
That was based on a claim by Ali Alexander, who organized the “Stop the Steal’’ movement, that he worked with them and Alabama U.S. Rep. Mo Brook on the plan for the Jan. 6 demonstration that coincided with the counting of the electoral votes by Congress.
There was no evidence that Finchem nor Kern were involved in trespassing at the Capitol. And Gosar was inside the Capitol during the Jan. 6 session.
The trio sued only Fernandez, who has since resigned to take a post in the Biden administration, claiming she had a particular animus against them.
Gunderson ruled Fernandez had an absolute First Amendment right to send a letter to federal law enforcement officials asking them to investigate the activities of the trio in connection with the events around the Jan. 6 riot and breach of the U.S. Capitol.
The judge acknowledged that the right of free speech is not an absolute defense against charges of defamation, particularly when it involves private matters.
“But when speech involves a matter of public concern, the balance changes significantly,’’ he wrote. “The storming of the U.S. Capitol on Jan. 6, 2021 is a matter of great public concern.’’
Gunderson subsequently concluded the Finchem, Kern and Gosar lawsuit “was brought for an improper purpose, having been filed against a political opponent primarily for the purposes of harassment.’’ In fact, the judge said, the initial legal papers the trio filed were less about legal grievances and more of a political screed.
“It very much appears that a significant portion of the contents of the original complaint and the first amended complaint were written for an audience other than the assigned trial judge,’’ he wrote.
In the new filing, Finchem, Kern and Gosar called the judge’s ruling and sanctions “an abuse of discretion.’’
They point out that Gunderson threw out the case before it ever went to trial, meaning there was no evidence or testimony about the intent of the parties, whether it was from Fernandez in publishing the statement or in their own decision to file the lawsuit. And they contend that these were “essentially equal but opposite claims of misconduct.’’
“Just as the court must apply the First Amendment to ensure open debate, so too must the court avoid imposing sanctions that will stifle creative advocacy seeking to protect it and remedy its abuses,’’ they told the appellate judges.
While Finchem lost his 2022 bid for secretary of state, Kern, who had been defeated in the 2020 election, won his bid last year for a two-year term in the state Senate. And Gosar, after winning his GOP primary, was unopposed in the general election for two more years in the U.S. House.
