The Judge who presided over Kari Lake’s election contest has denied sanctions against Kari Lake and her legal team, as I predicted in previous posts. (see final paragraphs)
The Defendants (Hobbs and the MariCo BoS) were asking for over $700K in legal fees. Those attorney’s fees were not granted, but about $33K in expert witness fees and other statutory costs were granted by the Court. Granting of such fees and costs to the prevailing side is fairly standard in civil litigation, and does not constitute a rebuke or penalty of the losing party.
Here’s the heart of the matter:
“Although eight of Plaintif’s claims were dismissed as a matter of law, two claims did survive and proceeded to Trial. Granting a hearing on those claims was a question of law applied to facts and not a benevolent act. As a result of the hearing required under the law, Plaintif’s allegations that survived dismissal were subject to factual and legal scrutiny and ultimately found by this Court as failing to meet the clear and convincing evidence standard under Arizona Revised Statutes §16-672.”
The Judge is pointing out that he wasn’t doing Lake any favors by granting a hearing on two of the Counts alleged; he was just following the law. As indicated by the fact that he allowed two counts to proceed to trial, they were, definitionally, not wholly frivolous.
Had the Judge awarded sanctions in a case in which he himself had found sufficient merit to proceed to an evidentiary hearing (remember that all allegations in a complaint are entitled to an assumption by the Judge that all the allegations are true in a motion to dismiss) it would essentially be saying that his order pursuant to the Defense motion to dismiss was legally wrong. I found it quite unlikely that the Judge would make such a ruling, which is why I predicted the Judge would NOT award sanctions in this case.
It is certainly easy to look at the utter paucity of actual evidence presented by Lake at the hearing and conclude that Lake’s allegations were patently false, but that alone doesn’t warrant sanctions. The Judge made a completely normal and unexceptional call on the sanctions motion.
Possibly troubling as regards our political system, however, is the fact that the Judge clearly does not see it as his role to police the behavior of litigants outside his courtroom. The net result of declining sanctions in this particular case is that election challenges in search of any actual facts to support them will not be deterred by the threat of the courts imposing sanctions on factually meritless claims, so long as they are legally sufficient under statute.
It is up to others (the media, the political parties, electoral opponents, the bar associations, etc.) to police and punish factually unmeritorious claims: the courts have generally declined to compromise their objectivity and perceived non-partisan position by doing that job of deterrence. I can’t really argue with the logic and rectitude of such a stance by the courts, despite the fact that allegations such as those made by Lake are scurrilous lies and disinformation designed to undermine confidence in our elections.
It is a complex and fraught judgment call as to whether the courts should get involved in the deterrence of such behavior, as opposed to simply acting as a venue to objectively vet and challenge such allegations by the stringent imposition of appropriate evidentiary standards upon such claims.
In the end, it is probably wise to preserve the complete neutrality of the courts – especially in politically divisive sorts of cases such as an election challenge – despite the cost of allowing wild allegations and legal fishing expeditions to remain undeterred. Stopping such behavior is really a job for other parts of society: in part, it is the job of the legal profession to police its own members. I expect there will be bar complaints about Plaintiff’s attorneys in this matter, and those, I suspect, will be found to be well-grounded by the Bar, and sanctions WILL be imposed. The attorneys involved knew very well – or should have known – that the claims they were making were utterly without merit. The Bar is probably the better forum for policing such behavior than the courts.
Despite the fact that awarding taxable costs is a standard procedure and not a rebuke, I fully expect Kari Lake to bellyache about how unfair the Judge was to her. She has already accused the Judge of cribbing his ruling from emails from Marc Elias and other ‘left-wing activists’, before deleting the Tweet in which she made the accusation. I suspect that she was setting up a trap for the Judge should he have awarded sanctions. It would have looked to Lake’s rubes like the Judge was retaliating for the accusation should he have awarded the attorney’s fees and any other sanctions: the persecution complex runs deep and treacherous in MAGA-land. They don’t accept disconfirmatory evidence, they just invent another conspiracy against them.
In any case, I assume that Lake will complain bitterly about the $33K in costs awarded and will seek to portray this award as some sort of persecution of her, despite it being quite standard practice and not a penalty at all. You may expect that we here at BlogForArizona will do our jobs and make her look like an ass for doing so.