Court: 3 Arizona Republicans must pay more after 'harassment' suit vs. Democrat

PHOENIX — Three current and former Republican lawmakers have been rebuffed by the state Court of Appeals in their attempt to avoid paying the legal fees of a Democrat whom a trial judge said was unfairly sued by them.

And now, they’re now on the financial hook for more.

In a unanimous ruling Thursday, the three-judge panel said that Yuma County Superior Court Judge Levi Gunderson was justified last year in requiring Mark Finchem, Anthony Kern and Paul Gosar to shell out $75,000 that Charlene Fernandez, then a state representative from Yuma, had to pay to her attorneys to successfully defend against a defamation suit they brought against her. He tossed their claim, ruling the lawsuit “was brought for an improper purpose, having been filed against a political opponent primarily for the purposes of harassment.’’

Finchem, Kern and Gosar did not appeal the underlying ruling. But they argued to the appellate judges that Gunderson’s decision to force them to pay Fernandez’s legal fees was not justified, saying such sanctions “will stifle creative advocacy.’’

The appellate panel, in an unsigned opinion, didn’t see it that way. They said the trio filed suit “without substantial justification’’ and that “their pleadings were riddled with irrelevant allegations.’’

“Further, on appeal, they continue to focus on the parties’ political differences, rather than law and fact, to support their claims,’’ the appellate judges wrote in assessing a new round of financial sanctions. “Their appeal, therefore, is both groundless and brought in bad faith.’’

The new ruling does not say how much more Finchem, Kern and Gosar will have to pay. That will be determined after Fernandez’s attorneys file a statement of their legal fees and other costs.

At issue is a Jan. 12, 2021, letter signed by Fernandez and 41 other Democratic state lawmakers to the FBI and the Department of Justice asking them to investigate Finchem, Kern and Gosar, all of whom were in Washington, D.C., for the Jan. 6 event that year.

The letter said Finchem and Kern “actively encouraged the mob, both before and during the attack on the Capitol.’’ It claimed that they “sought to conceal the consequences of their conduct by falsely blaming ‘Antifa.’ ‘’

It also raised issues about Gosar and 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 Congressman Mo Brooks on the plan for the Jan. 6 demonstration that coincided with Congress’ counting of the electoral votes.

“We four schemed up of putting maximum pressure on Congress while they were voting,’’ Alexander said in a now-deleted video on Periscope.

There was no evidence either Finchem or Kern were involved in trespassing at the Capitol. Both Biggs and Gosar were inside the Capitol during the Jan. 6 session.

While all Democratic state lawmakers signed the letter, the Finchem, Kern and Gosar chose to sue only Fernandez, who had been the House minority leader. They offered no explanation for that decision.

In filing suit, Kern and Finchem, and later Gosar, contended she knew that allegations they helped stir up protesters were false or that she made them “in reckless disregard of their truth or falsity.’’ They sought unspecified damages as well as a court order requiring Fernandez “to publish a full retraction of the false and malicious allegations’’ in the letter to federal officials.

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Gunderson, however, said Fernandez did nothing wrong.

“The Jan. 12th letter goes to the heart of free speech and the right to petition the government in connection with matters of great public concern,’’ the judge wrote.

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

The judge said the letter falls well within First Amendment protections for political speech.

In their new ruling, the appellate judges agreed.

They pointed out that Arizona law requires a court to assess legal fees against any attorney or individual who brings a claim “without substantial justification.’’ That includes any claim that “is groundless and is not made in good faith.’’

That, they said, is the case here.

“Plaintiffs’ defamation claims were groundless because the statements they contend were defamatory were absolutely privileged as communications to law enforcement about potential criminal activity,’’ the ruling states. The appellate judges said the lawsuit was not brought in good faith “because their complaint presented allegations relating to Fernandez’s political positions that were irrelevant to the defamation claims.’’

Gosar press aide Anthony Foti said the appellate court said the comments made in the letter could amount to defamation "but concludes that she had the absolute privileged right to defame them without any legal recourse'' under what he called the "pretext'' that Fernandez was reporting a crime.

He said the ruling reflects two standards of justice.

"Leftists are allowed to defame conservatives under the thinnest of pretexts,'' Foti said.

"Conservatives ... like President Trump face criminal prosecution for his privileged exercise of free speech,'' he said, saying that imposing sanctions on Gosar, Finchem and Kern for attempting to vindicate themselves "is punitive, harsh and the opposite of justice.''

There was no immediate response from Finchem or Kern.

Finchem, who used to represent Oro Valley and surrounding areas in the Arizona House, lost his 2022 bid for secretary of state. He now is running to represent the Prescott area in the state Senate.

Kern, a Glendale resident who was defeated in his 2020 reelection bid for the House, won a a two-year term last year for the state Senate.

Gosar, first elected to the U.S. House in 2012, was unopposed in the 2022 general election for two more years.

Fernandez left the state House to take a job as the U.S. Agriculture Department’s state director for rural development in Arizona.