Mark Finchem’s ‘frivolous’ bid to overturn Sec. State election gets booted by Az judge
Court declares Adrian Fontes is election winner, says attorneys for Gov.-elect Hobbs & incoming secretary of state can file to sanction Finchem's losing lawyer
A Maricopa County Court Superior judge rejected Mark Finchem's attempt to overturn his election loss by more than 120,000 votes, ruling Friday that opened the door for possible sanctions against the Republican's attorney.
Finchem had been seeking to overturn his loss last month to Adrian Fontes, who won by about 5 percentage points. Finchem said his Democratic opponent only won because of massive election malfeasance at the hands of Maricopa County and Secretary of State Katie Hobbs, though he provided no evidence anything affected the election outcome.
He wanted his election loss to Fontes overturned, a statewide hand-recount of all ballots and a court order that the attorney general investigate Secretary of State Katie Hobbs, who was elected governor in the same election, for what he claimed was self-dealing and threatening public officials.
In a ruling posted late Friday evening, Judge Melissa Julian dismissed what she called a "frivolous" case brought by Finchem and invited attorneys for Hobbs and Fontes to file motions seeking sanctions.
Julian issued a blistering retort to claims made by Finchem's attorney in which she said that the claims failed on their merits, were not brought in a timely fashion or were not applicable to Arizona law.
Earlier this week, attorneys for Hobbs and Fontes filed motions to dismiss the suit. Fontes' attorney used the motion to issue scathing criticisms of Finchem, the claims made in the election challenge and Cave Creek attorney Daniel McCauley , Finchem's lawyer. The lawsuit is a "flimsy tantrum of conspiracy theories and outright falsities," attorney Craig Morgan wrote, by a " twice sanctioned litigant ." The proper thing for the court to do, Morgan concluded, is to dismiss Finchem's lawsuit and then hold a hearing on sanctioning Finchem and McCauley.
Election challenges are limited in scope by state law , and must be confined to misconduct by election boards; ineligibility of a candidate; bribery or another offense "against the election franchise"; illegal votes; or an erroneous vote count.
Julian's ruling came after an hour-long hearing Friday morning, during which attorneys for Hobbs and Fontes said there was no legitimate reason for the courts to entertain Finchem's challenge.
"The parties' papers largely speak for themselves," Andy Gaona, an attorney representing Hobbs, said during oral arguments. "The fact of the matter is that Arizonans chose someone else for that job..
Gaona hit on the fact that Finchem's suit falsely claims that voting equipment in Arizona is unaccredited and asked the court to end the "political sideshow" adding that "the judiciary is not the venue to air political grievances..
Fontes' attorney, Morgan, once again asked the court to consider sanctions against Finchem's attorney for bringing a "frivolous lawsuit" that was not up to the standards of the court or the election contest statute.
Most of the oral argument time was spent with Finchem's attorney, McCauley, who frequently engaged in a back-and-forth with Julian on differing interpretations of the election contest statute.
In a error-filled response to Hobbs' and Fontes' motions to dismiss, McCauley asserted that the court was required to hear Finchem's case because it is an "election contest" and not a civil lawsuit, so it is governed by different procedural rules that don't allow it to be dismissed.
Julian asked McCauley about his novel argument, bringing up the fact that the case law he cited actually used civil proceedings in its findings. McCauley argued otherwise, stating that he and Finchem intended to file a "motion for summary judgment," a move that is used in civil proceedings, because there was evidence of "significant misbehavior."
"Aren't you saying that the civil rules don't apply? So, how could you file a motion for summary judgment?" Judge Julian shot back.
McCauley said the plan was a hedge against Julian ruling the case was a civil proceeding.
Morgan interjected that he had "heard so many contradictions today my head hurts." He noted that Finchem's suit asks for discovery, which applies under the civil proceeding rules that McCauley and Finchem were simultaneously arguing did not apply to the case.
"I'm embarrassed for the voters, I'm embarrassed for the State of Arizona," Morgan said.
McCauley also did not provide any further evidence to back up any of his claims that election equipment in Maricopa County, or anywhere else in the state, was not accredited, something Julian appeared to have taken note of.
"How do you then say there is no accreditation? I'm struggling with that," Judge Julian asked McCauley.
He responded that documentation provided by the Election Assistance Commission proving the accreditation was valid was forged, though he also admitted that he and his expert had not seen any of the documentation provided by Fontes and Hobbs attorneys.
In her ruling, Julian noted McCauley's accusations of forgery during Friday's oral arguments.
"This allegation appears nowhere in the Amended Statement and was asserted for the first time in response to the pending motions," the judge wrote. "This new allegation is wholly unsupported by the record."
Julian also took aim in her ruling at Finchem's that Hobbs engaged in "misconduct" by refusing to recuse herself during the election, her office flagging misinformation on Twitter and claiming that she "threatened" election officials for refusing to certify election results.
"These are not well-pled facts; they are legal conclusions masquerading as alleged facts," she wrote. "As such, this court is not obliged to assume their truth. Further, and even as 'legal conclusions,' Arizona law does not support them."
Julian noted that Finchem's case did not cite a single statute, rule or appellate decision to support his claim of "misconduct" by Hobbs. Julian found the other claims made in the suit to be equally as uncompelling and lacking in evidence.
The attorneys for Hobbs and Finchem have 10 days to file motions requesting Julian sanction McCauley and Finchem. State law allows a judge to force a party to a lawsuit to pay attorney's fees and penalties if their lawsuit "is groundless and is not made in good faith..
In Friday's hearing, McCauley said he was prepared to be sanctioned by the State Bar of Arizona for bringing the suit.
"I took this (case) because they needed somebody to do this," McCauley said. "I guess it does not matter if I get sanctioned here. I'm 75, semi-retired, and it will be two years or so before they get to it."
This report was first published by the Arizona Mirror.