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Yuma County judge rules Arizona Republican officials pay legal fees of former state representative

Capitol Media Services file photo
Former Arizona state Representative Charlene Fernandez.

By Howard Fischer
Capitol Media Services
PHOENIX -- Three Republican lawmakers have to pay the legal fees of a Democrat foe after filing what a judge called a meritless lawsuit against her.
Yuma County Superior Court Judge Levi Gunderson said it was obvious that Charlene Fernandez, then a Democratic state representative from Yuma, had an absolute constitutional 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.
More to the point, the judge said the lawsuit "was brought for an improper purpose, having been filed against a political opponent primarily for the purposes of harassment.'' In fact, Gunderson said, the initial legal papers the trio filed were less about legal grievances and more of a political screed.
"It very much appears that a significant portion of the contents of the original complaint and the first amended complaint were written for an audience other than the assigned trial judge,'' he wrote.
So now the GOP politicians are jointly on the hook for $75,000 in legal fees and another $616 in costs.
Finchem said Tuesday he was still reviewing the order. There was no immediate response from the others.
The lawsuit filed last year said Fernandez knew or should have known that there was no evidence linking any of them to the Jan. 6 riot and breach of the U.S. Capitol. Yet Fernandez, along with other Democratic lawmakers, sent a letter to the FBI and the Department of Justice asking that they investigate the pair who were in Washington for the event.
In that letter, Fernandez and others said there was evidence they "actively encouraged the mob, both before and during the attack on the Capitol'' and that they "encouraged, facilitated, participated and possibly helped plan this anti-democratic insurrection.''
The trio, through their attorneys, contend 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.''
Finchem initially filed complaints with the House and Senate Ethics Committees against all Democratic state lawmakers who signed the letter. But those were summarily dismissed.
That led to the lawsuit -- but only against Fernandez -- initially with Finchem and Kern; Gosar joined later.
There never was a clear explanation why they singled her out.
But the lawsuit said that Fernandez has a "prior history of making disparaging comments'' about Kern. That included accusing him of being vindictive in his decision, as chairman of the House Rules Committee, to "hold'' bills which prevented them from going to the full House for a vote and for calling for his removal from that post.
It also said she has "advocated for expanding vote by mail and other measures that render our state's elections more vulnerable to fraud.'' And it says she has "opposed and sought to defeat measures supported by plaintiffs to enhance election integrity in our state.''
Gunderson, in his new order, said it was clear that Fernandez and the others who signed the letter had done nothing to merit a lawsuit.
"Following an event of national importance on Jan. 6, 2021, defendant had the right, together with 41 other Arizona lawmakers, to express her concerns to federal law enforcement officials by signing the Jan. 12 letter,'' he wrote. "She had the right to request that federal law enforcement officials conduct an investigation into any involvement, encouragement, or participation of the ... named legislators in connection with the events of Jan. 6.''
Finchem and Kern both marched to the Capitol that day, though there is no evidence either went inside. Gosar was inside in his role as a member of the U.S. House and worked to block certification of the election for Biden.
All three have been part of the "stop the steal'' movement.
The lawsuit provided them with a new opportunity to resurrect their original allegations -- all unproven -- that there were "irregularities'' in the election of Joe Biden and that social media sites like Twitter and Facebook quashed harmful stories about Biden's son, Hunter, and his laptop that contained documents about his business dealings.
That combined with their belief there were problems with the integrity of electronic voting systems and what they claimed were "mysterious changes in swing states'' of vote tallies on election night.
All that is why they said there were "ample grounds'' to challenge the outcome of the race and why they went to Washington on Jan. 6, the day Congress was to certify the electoral vote. Both, however, said they did not instigate any violent activity.
None of that convinced Gunderson that provided any basis to sue Fernandez.
"Defendant's conduct was clearly protected by both the right to free speech and the right to petition the government, as guaranteed by the First Amendment to the United States Constitution and by the corresponding provisions of Arizona's Constitution,'' he said.
Finchem is now the Republican nominee for secretary of state.
Kern won the GOP primary for state Senate and has no Democratic opposition. Gosar is seeking another two-year term in the U.S. House.
Fernandez stepped down from the legislature last November to take a job in the Biden administration.
On Twitter: @azcapmedia

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