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Fichem still responsible for legal fees from election lawsuits, Court of Appeals says

Posted 6/14/24

PHOENIX — Mark Finchem and his attorney can’t escape a court order that they pay more than $47,000 in legal fees in his unsuccessful attempt to overturn his 2022 loss in the race for …

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COURT

Fichem still responsible for legal fees from election lawsuits, Court of Appeals says

Posted

PHOENIX — Mark Finchem and his attorney can’t escape a court order that they pay more than $47,000 in legal fees in his unsuccessful attempt to overturn his 2022 loss in the race for secretary of state.

In a ruling Thursday, the state Court of Appeals said a trial judge got it right when she rules that it was clear that the lawsuit he filed was “groundless.” Beyond that, appellate Judge Samuel Thumma, writing for the unanimous panel, said the lawsuit was not filed in good faith.

All that, the judges said, justifies forcing Finchem and Daniel McCauley, the attorney who was representing him at the time, to pay more than $40,200 in legal fees accumulated by Adrian Fontes, the Democrat who defeated him in the race. And there was another $7,434 awarded to Hobbs for the cost of the attorneys she hired in her role at the time as secretary of state.

But Finchem’s financial issues over the race he lost by more than 120,000 votes are not over.

Thumma said Thursday the appeal, filed by Dennis Wilenchik, also was legally flawed. So now Finchem, who has moved from Pima County and is now running to be the Republican nominee for state Senate from Prescott, is on the hook for a yet-to-be-determined fees that Fontes encountered in the appeal.

In filing suit, Finchem, who had been a Republican state representative from Oro Valley, alleged a series of issues he said affected the outcome of the race he lost to Fontes. That included the malfunctioning of tabulators in Maricopa County on Election Day which he said created delays for voters and concerns that some ballots may not have been counted.

But Maricopa County Superior Court Judge Melissa Julian said Finchem “offered no tether between the machine malfunctions and the outcome of the election he challenged here.”

Thumma said there were other problems with his case.

One is that Finchem alleged there were 80,000 votes illegally cast, 60,000 from Maricopa County and 20,000 from Pima County.

“That number is still 40,000 votes less than what Finchem would have needed to challenge the results of an election he lost by more than 120,000 votes,” wrote Thumma in concluding that the lawsuit was groundless.

The appellate judge noted that Finchem subsequently called into question more than 261,000 votes. By that point, Thumma said, it was too late.

More to the point, he said, it’s legally irrelevant to whether there were grounds for him to sue in the first place.

“Claimed post-filing evidence ... is not dispositive,” the judge wrote. “The question is whether Finchem brought his claim without substantial justification.”

The problems with the lawsuit, said Thumma, go beyond the finding that there were no grounds for filing it. He said it also ran afoul of provisions that bar cases from filing unless there is a “good-faith belief” there is a legal basis.

That, the judge said, did not occur here — and not only because the number of disputed votes, even if they had gone Finchem’s way, were not enough to alter the outcome.

Thumma pointed out, for example, that the trial judge said that Finchem, in his complaint, made “demonstrably false assertions.” He also said that Finchem chose to pursue the claim “`without regard to contrary evidence,” suggesting that that lawsuit was not motivated by an actual belief that any error affected the outcome of the race.

And Thumma said McCauley, in filing suit on Finchem’s behalf, ignored the fact that lawsuits to overturn elections must prove not only acts of misconduct but also evidence that any irregularities actually rendered the result of the race uncertain.

Julian said there were other reasons justifying assessing legal fees against McCauley.

He noted that McCauly admitted he decided to file the case after “a number of experienced litigators” declined to pursue it.

What that shows, she said, that he took the case after conceding that “a more experienced litigator with a larger staff was needed to prosecute the action competently.”

“This should have been a deterrent,” Julian wrote. “At a minimum, concerns raised by other attorneys should have prompted further investigation into the contest’s validity.”

And there’s something else that got the judge’s attention. She said McCauley made comments during oral arguments that he “expressed being less at risk of being disbarred as a result of the filing given his impending retirement.”

“This too supports sanctions as it demonstrates a conscious decision to pursue the matter despite appreciating that the contest had no legal merit,” the judge said.

There was no immediate response from either Finchem or McCauley. But Dennis Wilenchik, who represents Finchem now, said he believes the appellate court got it wrong.

He said the case was filed “with belief that discovery will bear out the claim.” And Wilenchik said that there was evidence that was unearned later, though he said that was ignored by the court.

“(That) does not mean the claim when brought was brought in bad faith or without substantial justification,” he said. “I believe the court is in error.”

Wilenchik said he will consult with Finchem before deciding whether to seek Supreme Court review.