By Howard Fischer
Mail | Twitter: @azcapmedia

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

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

In a unanimous ruling Thursday, the three-judge panel said  Yuma County Superior Court Judge Levi Gunderson was absolutely 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 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 concluded 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 shell out. That will be determined after Fernandez’s attorneys file a statement of their legal fees and other costs.

There was no immediate response from the trio.

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 that they investigate the trio, all of whom were in Washington when rioters attacked the Capitol six days earlier.

The letter said Finchem and Kern, who went to Washington, “actively encouraged the mob, both before and during the attack on the Capitol.” And it claimed that the pair “sought to conceal the consequences of their conduct by falsely blaming ‘Antifa.’”

It also raised issues about Gosar and fellow Congressman 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 the counting of the electoral votes by Congress.

“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. And both Biggs and Gosar were inside the Capitol during the Jan. 6 session.

While all Democratic state lawmakers signed the letter, the trio chose to sue only Fernandez who had been the House minority leader. They never offered any explanation for that decision.

In filing suit, Kern and Finchem — and later Gosar — contended she knew the allegations they had 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 the federal officials.

Gunderson, however, said Fernandez, who subsequently resigned from the legislature to take a job in the Biden administration, 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,” he 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 has the right to petition her.”

And 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 Arizona law requires a court to assess legal fees against any attorney or individual who brings a claim “without substantial justification.” And 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. And 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.”

Finchem, who used to represent Oro Valley and surrounding areas in the 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 had been defeated in his 2020 reelection bid for the House, won 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.