Judge Sanctions AZ GQP For Filing A Frivolous Lawsuit In Bad Faith

Ariz.R.Civ.P. 11(b) provides:

(b) Representations to the Court. By signing a pleading, motion, or other document, the attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after reasonable inquiry:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

A litigant and/or the attorney(s) who violate this provision are subject to sanctions by the court under Ariz.R.Civ.P. 11(c), “The sanction may include an order to pay to the other party or parties the amount of the reasonable expenses incurred, including a reasonable attorney’s fee, because of the filing of the document or because of the party’s failure to participate” in good faith.

The Arizona Capitol Times reports, Judge penalizes AZGOP for election suit:

A Maricopa County Superior Court judge is blasting the Arizona Republican Sedition Party, saying it filed an utterly meritless lawsuit solely to undermine public confidence in the 2020 General Election.

In a 10-page order excoriating the GOP for filing suit, Judge John Hannah said Arizona law gives political parties a “privileged position” in the electoral process, part of what’s necessary for self government.

“The public has a right to expect the Arizona Republican Sedition Party to conduct itself respectfully when it participates in that process,” Hannah wrote in ordering it to pay more than $18,000 in legal fees. “It has failed to do so in this case.”

The order sanctions Lee Miller, a lawyer who testified in favor of the injunction, in addition to the Arizona Republican Party and Wilenchik’s law firm, Wilenchik & Bartness.

The $18,000 in legal fees is a fraction of nearly $152,000 the Secretary of State’s office was forced to incur defending itself against a series of frivolous election fraud lawsuits challenging President Joe Biden’s Arizona win.

And he even accused the party of “gaslighting” him in how it sought to frame the legal issues as it sought to escape those fees.

Hannah said it was clear from the start there was no legal basis for the party and its attorney to demand a different kind of hand count audit of ballots than the one spelled out in state law.

“That statement shows the groundlessness of the plaintiff’s legal position, because it is flat wrong as a matter of law,” the judge wrote in a ruling released Monday.

The only basis for such a claim, Hannah wrote, is if there is an allegation of fraud or that the result would have been different had proper procedures been followed. But what the GOP wanted was a different method of doing the legally required — and already performed — hand count “to ensure voter confidence and integrity.”

Only thing is, the judge said, the party never cited any legal authority in its lawsuit against Secretary of State Katie Hobbs for him to order a different kind of hand count. Instead, the attorney said he has the authority to “decide what the law is.”

“But that power is not a roving commission to declare the law and order people to follow it,” Hannah wrote.

But what really provoked Hannah’s ire — and his decision to order the party to pay $18,238 in legal fees run up by Roopali Desai, the private attorney hired by Hobbs — was the admission that “public mistrust following this election motivated this lawsuit.”

“The plaintiff is effectively admitting that the suit was brought primarily for an improper purpose,” the judge wrote.

“It is saying that it filed this lawsuit for political reasons,” he continued. ” ‘Public mistrust’ is a political issue, not a legal or factual basis for litigation.”

* * *

The issue of fees stems from the legally required random hand count of ballots. That procedures has officials from both parties select a batch of ballots and races within those ballots to determine if what the machine tallied matches what humans concluded.

In all cases, the match was 100%.

But Wilenchik charged that the law requires the audits be conducted at 2% of voting precincts.

Only thing is, Maricopa County — and six others — use voting centers where any individual can go to cast a ballot. So the audit was conducted at 2% of these vote centers. He argued that was illegal and sought to hold up the formal canvass of the election results.

Hannah, however, ruled last year that when legislators allowed counties to establish vote centers they also gave the secretary of state the power, through the official Election Procedures Manual, to allow audits in that method.

Then there was the timing issue. The judge said it was “inexcusable” that the party filed suit three days after Maricopa County had publicly announced the result of the hand count.

He said Ward and the attorney denied knowing that.

“But they certainly had constructive knowledge, since the party’s own representatives had participated in the audit,” Hannah said.

“And surely the plaintiff had a duty of inquiry,” he continued. “That the plaintiff did not do so suggests it did not consider the information important — another marker of lack of good faith.”

And there’s something else: what the GOP did after being told that the hand count was complete and it showed the electronic tabulation was flawless.

“At that point the plaintiff could have quietly walked away from the lawsuit and publicized the audit results to reassure the public,” Hannah said. “Instead it filed ts petition to enjoin the election canvass.”

The judge was particularly angry that Wilenchik suggested that awarding Hobbs her legal fees would, in Hannah’s words, “cause the public to question the court’s impartiality and undermine respect for the courts.”

“It is a threat to the rule of law posing as an expression of concern,” the judge wrote. “It is direct evidence of bad faith.”

Hannah had one other legal bone to pick with the party: the claim that it was exercising its First Amendment rights.

“The First Amendment does not give a litigant the right to file and maintain a groundless lawsuit,” he wrote.

Judge Hannah’s sanctions ruling will go a long way in the bar complaint filed against John “Jack” D. Wilenchik and Lee Miller.

There was action on some of the pending bar complaints on Monday as well. The Arizona Republic reports, Complaints against 9 attorneys involved in election lawsuits dismissed by Arizona Bar; 12 still pending:

The Arizona State Bar has dismissed complaints against nine lawyers who represented President Donald Trump’s campaign, the Republican Party or its supporters in challenging the results of last year’s election.

Several other attorneys filed the complaints, charging that the lawyers behind a flurry of litigation disputing President Joe Biden’s victory here or aspects of the election process had violated professional standards by filing frivolous cases with demonstrably false information. All of the election challenges were dismissed, in many instances after the judges themselves lambasted the allegations as meritless.

The complaints named 21 lawyers and the state Supreme Court appointed Lisa Daniel Flores, a retired superior court judge and a former state elections director, to review them.

The bar confirmed on Monday it had dismissed the charges against four attorneys — Thomas Basile, Brett Johnson, Kory Langhofer and Eric Spencer — who were involved at different points in representing the Trump campaign and state and national Republican parties in one lawsuit against election officials.

* * *

Langhofer filed a motion acknowledging the outcome of the lawsuit would have no impact on Arizona’s presidential results, and the judge dismissed the claims as moot.

Flores said the case had good faith, factual basis and that the move to dismiss the case based on the ongoing statewide vote count made clear that the attorneys did not violate rules of professional conduct.

Langhofer also was accused of violating rules of professional conduct when he did not disclose that his expert witness was also his business partner.

Flores said that was Langhofer’s choice as a matter of trial strategy and she did not perceive it as misconduct. The bar also dismissed a complaint against Chris Ford, who had made filings in the case.

Other case dropped by attorneys

The bar has also closed complaints involving Erick Kaardal, David Spilsbury, William F. Mohrman and Gregory Erickson, who filed a lawsuit to vacate the presidential election but later moved to dismiss their own case.

Robert J. McWhirter, a member of the bar’s board of governors and one of the attorneys who filed the complaint, called that case “one of the more bizarre claims” in the flurry of allegations thrown around by the Trump campaign and its supporters after the election. The lawsuit claimed among other things that unidentified grant money was distributed to direct the actions of election officials by some “shadow government” orchestrated by Facebook founder Mark Zuckerberg.

“Confidence in the legal system is seriously eroded when attorneys treat lawsuits as a platform for broadcasting ‘gossip and innuendo,’ utterly devoid of factual proof, as a political stunt,” the complaint said.

Flores wrote that the case raised a number of concerns, some of which the lawyers could have addressed with even cursory research.

But she noted the lawyers chose to dismiss the lawsuit themselves just a few days after filing it.

“Had you proceeded with the litigation and further burdened the court, I may have decided to recommend formal discipline,” she wrote to Spilsbury.

Complaints against the 12 other lawyers named in early complaints are still pending. The complaints had also named some prominent attorneys in the Trump campaign’s efforts to reverse the election results, including Sidney Powell and L. Lin Wood.

Other attorneys named in the complaints that are still pending include Sue Becker, Julia Zuszua Haller, Brandon Johnson, Howard Kleinhenbdler, Alexander Kolodin, Lee Miller, Emily P. Newman, Christopher Viskovic, Dennis I. Wilenchik and John “Jack” D. Wilenchik.

The Republic’s Laurie Roberts writes, Arizona GOP should pay far more than $18k for what it has cost us since the election:

Finally, the Arizona Republican Party is being held accountable for its shameless use of the courts to promote the fiction that the election was rigged.

Pity the party can’t also be ordered to pay the total cost of what it has done to this state. Starting, perhaps with the the tab for the coming Senate audit of the election results.

* * *

It’s just too bad there’s not a judge who could order the party to also pick up the tab for the Senate’s coming full forensic audit of the election.

From the start the Senate has acted like a wholly-owned subsidiary of the Arizona Republican Party whose far-right leaders cannot accept any result that does not result in a second term for Donald Trump.

* * *

So now comes the next step in the party’s unending quest to get at the “truth” that Trump really won Arizona: The Senate audit.

But the real truth, the sad truth, is that this audit will not “restore election integrity” either.

You can’t add up the real cost of what the people who run the Republican Party have done to this state — the ongoing price we will pay for voters’ broken faith in our elections and presumably, in the people we elect.

You can, however, add up the cost of the auditors and the lawyers, the tens of thousands of dollars taxpayers will shell out to perform the coming audit.

What a shame that we can’t bill the state Republican Party for that, too.