By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Abe Hamadeh has been ordered to pay more than $42,000 in legal fees to Kris Mayes in his unsuccessful effort to convince the Arizona Supreme Court to overturn the results of the attorney general’s race.

In a new order Tuesday, Chief Justice Robert Brutinel said the award is appropriate because the Hamadeh had “misrepresented” to the justices that he had sought a final — and appeal-able — order from Mohave County Superior Court Judge Lee Jantzen who had ruled the GOP contender had not proven he had outpolled Mayes in the November general election and then denied him a new trial to present more evidence.

And Brutinel said there was no reason for Hamadeh to even file any pleadings with the state’s high court as all of the claims he made that Jantzen erred in his decisions could have been presented to the state Court of Appeals.

All that, the chief justice said, “unnecessarily expanded the proceeding and compelled respondents to incur the unnecessary expenses of filing their court-ordered responses.”

It isn’t just Mayes who is getting reimbursed.

Brutinel said Secretary of State Adrian Fontes, who was named as a defendant in Hamadeh’s bid to overturn the election results, also is entitled to $12,921 in his own legal fees.

The decision to award fees by itself is no surprise.

It stems from Hamadeh’s contention that Jantzen had acted improperly in limiting the amount of time he had to prepare his legal arguments seeking to overturn his loss to Mayes. He said that denied his attorneys the ability to find the evidence that some people who were legally entitled to vote did not have their ballots tabulated.

He also argued that more time would have enabled his legal team to prove there were a sufficient number of situations where tabulators reported an “undervote” in the race for attorney general — essentially, that the voter had skipped the race — but where an examination of the ballots would show that people did make a choice. And given that Hamadeh outpolled Mayes among Election Day voters, Hamadeh said that could more than make up for his 280-vote deficit.

But the justices ignored all that, instead concluding that Hamadeh’s lawyers acted prematurely.

And, on top of that, the justices said they lied.

Brutinel said Hamadeh’s legal team told him and his colleagues they had “diligently sought” a final ruling from Jantzen, setting the stage for an appeal.

Only thing is, the attorneys for Mayes and Fontes pointed out that assertion was a false.

All that, said Brutinel, made Hamadeh ineligible to seek the special relief he wants directly from the Supreme Court. So the justices told him to follow the normal procedures and file “a proper appeal in the Court of Appeals.”

Only after the appellate court has had its say — something that could take months — would the justices be willing to consider his arguments.

That left the question of the request for Hamadeh to pay legal fees which Brutinel already said were appropriate.

“Petitioners were not only aware that they needed a final judgment to seek appellate relief but also misrepresented to this court that they had sought such relief when they had not done so,” the chief justice wrote. And that misrepresentation, he said, was the underlying premise of Hamadeh’s now-dismissed petition to the Supreme Court.

In filings with the high court, Hamadeh’s lawyers asked that the $42,135 request by Mayes’ attorneys be reduced, saying there was no evidence that there was “significant difficulty or intricacy” required in their work.

But Brutinel pointed out that Republican legislative leaders complicated matters by filing their own legal brief saying that the time limits Jantzen had set for Hamadeh to prove his case “imparted an artificially constricted scope to provisions that the Legislature intended to secure a robust fact-finding process.”

And all that, the chief justice pointed out “raised the stakes” — and required Mayes’ lawyers to do more work.

As to Fontes, Brutinel acknowledged that, generally speaking, the secretary of state is a nominal party to election challenges.

But here, too, he said, Hamadeh dragged the Secretary of State’s Office in by accusing it — at the time of the original trial before Jantzen under the control of Katie Hobbs — of hiding critical information about the results of a recount in the race even as Hamadeh was arguing for a new trial.

And Thomas Basile, writing for Senate President Warren Petersen and House Speaker Ben Toma, accused Fontes of “churlish imperiousness” in rejecting Hamadeh’s bid to reexamine some ballots.

“The court concludes that petitioners’ allegations in these proceedings have made the secretary more than a ‘nominal’ defendant who need not be expected to remain silent to refute these charges,” Brutinel wrote.

And that, he said, entitled Fontes to recoup the office’s legal fees.

None of this resolves the underlying claim by Hamadeh that he actually outpolled Mayes despite the final tally showing him 280 votes behind his Democratic foes. His case is now pending before the state Court of Appeals.

Whoever loses there eventually is expected to wind up back at the Supreme Court.