Yuma County judge throws out lawsuit against ex state Rep. Charlene Fernandez

By Howard Fischer
Capitol Media Services
PHOENIX -- A judge on Friday threw out a lawsuit by three current and former lawmakers claiming that former state Rep. Charlene Fernandez, D-Yuma, "smeared'' their names.
Yuma County Superior Court Judge Pro-Tem Levi Gunderson said Fernandez had an absolute First Amendment right to send a letter to federal law enforcement officials asking them to investigate the activities of state Rep. Mark Finchem, R-Oro Valley, now former state Rep. Anthony Kern, R-Glendale, and Republican Congressman Paul Gosar in connection with the events around the Jan. 6 riot and breach of the U.S. Capitol.
In the six-page ruling, Gunderson acknowledged that the right of free speech is not an absolute defense against charges of defamation, particularly when it involves private matters.
"But when speech involves a matter of public concern, the balance changes significantly,'' he wrote. "The storming of the U.S. Capitol on Jan. 6, 2021 is a matter of great public concern.''
At issue is a Jan. 12, 2021 letter that was signed by 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 for the event.
The letter said Finchem and Kern, who went to Washington, "actively encourage 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 Brook 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 that 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 lawsuit was filed only against Fernandez.
In filing suit, Kern and Finchem -- and later Gosar -- contended that Fernandez knew the allegations they had helped stir up protesters were false or that she made them "in reckless disregard of their truth or falsity.''
That is a critical point as the U.S. Supreme Court has ruled that public figures cannot sue over simple negligence or even false statements. Instead, they have to show "actual malice.''
In this case, they said that Fernandez falsely accused them of being involved in, or in aiding and abetting, the crimes of terrorism, insurrection, treason and sedition, or at least having conspired to commit them.
"Such crimes are punishable by death,'' they noted.
Gunderson, however, said that Fernandez, who has since resigned 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 fight to petition the government, just as her constituents has the right to petition her.''
And the judge said that the letter falls well within First Amendment protections for political speech.
Gunderson also said there is legal precedent for throwing out a case like this even before evidence is presented at a trial.
"The Arizona Supreme Court has stated that lawsuit against constitutionally protected speech should be examined with a more rigorous eye and dismissed at the earliest possible stage, thereby protection First Amendment rights and relieving the parties and the court of a prolonged, costly, and inevitable futile trial,'' he wrote.
Alexander Kolodin, who represented the plaintiffs, said he wanted to review the ruling before commenting.
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