AZ justices provide new shield to some who file meritless political claims

PHOENIX — Three Republicans with links to the Jan. 6 riot will get a chance to escape paying the legal fees of a Democrat whom, according to a judge, they unfairly sued.

And others involved in partisan lawsuits, and attorneys they hire, may also soon be exempt from sanctions.

The Arizona Supreme Court is moving on two fronts to reduce the fear of lawyers who file political cases that they or their clients will be punished if a judge finds their case has no legal merit.

First, the justices say attorneys handling these issues should have more leeway to make their arguments — even if a court ultimately determines they have no legal merit — and not automatically be forced to pay the other side’s legal fees.

“By sanctioning parties and their lawyers for bringing debatable, long-shot complaints, courts risk chilling legal advocacy and citizens raising ‘questions’ under the guide of defending the rule of law,’’ the justices ruled.

In a separate move, the high court just adopted a new rule narrowing the ability of people not directly involved in cases to file ethics complaints against lawyers. That’s designed to keep the disciplinary process from “being weaponized by partisans or the appearance of that occurring,” said David Byers, administrator of the Administrative Office of the Court, who wrote the rule.

Jan. 6 case

In the Jan. 6-related case, the justices issued a new order telling the Court of Appeals to reconsider its 2023 ruling. The Court of Appeals had upheld a lower-court decision requiring Republicans Mark Finchem, Anthony Kern and Paul Gosar to shell out $75,000 that Democrat Charlene Fernandez had to pay her attorneys.

The three had sued Fernandez for defamation after she called for the FBI and U.S. Justice Department to investigate their actions around the riot, which sought to block certification of Joe Biden’s defeat of Donald Trump in 2020. Finchem and Kern, state lawmakers at the time, were in Washington at the “Stop the Steal” rally on Jan. 6, 2021, though there is no evidence either breached the Capitol. There were unproven allegations that Gosar, a member of Congress, was involved in planning the disturbance.

The case against Fernandez, then a state lawmaker from Yuma, was tossed by Yuma County Judge Levi Gunderson.

“Defendant had the right to express her concerns, both as an individual and as a state legislator,’’ Gunderson said. “Defendant had the fight to petition the government, just as her constituents have the right to petition her.’’

More to the point, the judge said 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.’’

The trio never appealed the underlying ruling in favor of Fernandez. But they argued to the appellate judges that Gunderson was not justified in forcing them to pay Fernandez’s legal fees. Such sanctions “will stifle creative advocacy,” Finchem, Kern and Gosar argued.

The three-judge appellate panel disagreed, concluding the trio filed suit “without substantial justification’’ and that “their pleadings were riddled with irrelevant allegations.’’

But now the Supreme Court has ordered the appellate court to take a new look at the case.

More leeway now in political cases

The legal landscape has changed. The justices now want to give those who filed lawsuits in political cases more leeway to make their claims without fear they are going to be punished, either with having to pay the other side’s legal fees or by being disciplined for ethical violations.

The justices, in essence, told the appellate court to go back and read their decision in a case where the Arizona Republican Party sued Maricopa County and others over procedures used in a post-election hand count.

A lower-court judge not only threw out the case as “groundless’’ but concluded it was filed for the wrong reasons. He said the GOP admitted that “public mistrust following this election motivated this lawsuit.’’

“The plaintiff is effectively admitting that the suit was brought primarily for an improper purpose,’’ wrote Maricopa County Judge John Hannah. “ ‘Public mistrust’ is a political issue, not a legal or factual basis for litigation.’’

That meant the attorneys for the GOP had to pay more than $18,000 in legal fees, Hannah ruled.

But the Supreme Court set that award aside.

“Any suggestion that a party or an attorney faces enhanced risk of sanction merely because they couple political motives with a long-shot effort to vindicate a legal right in the election law context intolerably chills citizens and their attorneys precisely in an area where we can least afford to silence them,’’ wrote Justice John Lopez for the unanimous court.

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It is that ruling the justices are using to tell the appellate court to “reconsider’’ the $75,000 award to Fernandez — this time using the new standard.

‘Weaponization’

Potentially more far reaching is the change in the procedure for filing ethics complaints against attorneys.

Strictly speaking, the new rule does not stop anyone from filing a complaint with the State Bar of Arizona.

But it says those filed by individuals with direct knowledge of the issue — judges, attorneys, parties and witnesses — will be handled the traditional way, with the person who files the paperwork entitled to access to all information gathered by the Bar.

For everyone else, the Bar would review the complaint and make an initial determination if it had merit. Only in that case would the person who filed the complaint be part of the process, free to publicly disclose the fact that someone is under scrutiny, and to be made aware of the outcome.

The rule was just adopted by the Supreme Court on an emergency basis. Byers said that’s aimed at the upcoming election.

“Media coverage of election-related litigation generated charges from individuals who were not directly involved in the underlying case,’’ he said. At least 40 such cases were submitted since the 2020 general election, he said. “We’re seeing lots of complaints come in where somebody said, ‘I read this in the newspaper that this lawyer did this, I’m filing a complaint with the bar over this.’ ‘’

Byers said many of the complaints appear to have been filed largely for political reasons.

“It really became a weaponization of the system,’’ he said. So far, Byers said, mostly Democrats and their allies — some from out of state — have filed complaints against lawyers representing Republicans who were trying to have elections overturned. Once these individuals have legal standing as a complainant, they can make public the fact that an attorney is being investigated, even if there is no finding that the lawyer acted unethically.

State Senate President Warren Petersen, a Gilbert Republican who is a member of the Bar, submitted comments favoring adoption of the rule change.

“Not only can the current process be weaponized by partisans, but it also can be weaponized for any reason,’’ he said.

Complainants’ speech rights

But Dianne Post, an international human rights attorney, dismissed the concern about “weaponization’’ of the complaint process. She said lawyers who file frivolous complaints can be disciplined.

For everyone else, she said, “The solution is not to punish those filing valid complaints but may not know how to investigate beyond news reports (nor is that their duty) but to reject those efforts to attack the rule of law. The State Bar could do so by expeditiously dismissing non-meritorious complaints filed for political purposes, and by communicating to the public via the news media the fact that certain individuals or groups are misusing the Bar complaint process improperly for political purposes.’’

Amelia Cramer, a former chief deputy Pima County attorney now in private practice, had her own objections, including denying the right of some who file complaints from being informed of the outcome.

“More transparency, not less, regarding Bar discipline is warranted in these times of distrust of government institutions and misuse of the justice system for political purposes,’’ Cramer wrote.” Those who submit Bar charges deserve to know ultimately what happened with respect to those charges.’’

Tempe attorney Victor Aronow said the amendment “is purely political in nature and is intended to eliminate one more mechanism with the State Bar that could be used to preserve respect for the law, respect for the vote, and respect for the legal profession.’’

Ralph Adams, a former senior Bar counsel in Arizona, now retired, said it is “completely irrelevant’’ whether someone has first-hand knowledge of the events.

“The First Amendment protects complainants’ free speech rights,’’ he said, including their right to comment about a complaint they have filed.

He said said Byers’ concern about 40 election-related complaints is no reason to change the rules. In the same four years, the Bar processed more than 9,200 complaints, Adams said.