By Howard Fischer
Capitol Media Services
PHOENIX -- A special state law designed to promote political participation and debate does not give Kari Lake the right to make up facts about Maricopa County Recorder Stephen Richer, promote them, and not have to answer for them, his attorney is arguing.
And Daniel Maynard said the law that Lake is trying to use to toss out the defamation lawsuit even before any evidence is heard is designed only to protect "the lawful exercise of a constitutional right.'' But he said that provides no shelter for the one-time gubernatorial hopeful and 2024 U.S. Senate candidate to avoid being held financially liable for making false statements and the damages she caused to Richer and his family.
"There is no constitutional right to make defamatory statements with actual malice,'' he said in his filings Monday with Maricopa County Superior Court Judge Jay Adleman.
And Maynard pointed out to the judge that the Arizona Constitution has a specific provision that prohibits any measure that denies someone the right to sue for damages. He said accepting Lake's argument that she is absolutely protected by the law regardless of the truth or falsity of her statements -- and that Richer can't even get his day in court -- would be unconstitutional.
The litigation is over two claims made by Lake in her ongoing argument that she should be declared the governor -- or at least the 2022 election she lost to Katie Hobbs by more than 17,000 votes should be rerun -- based on various allegations she made about misconduct by others.
In this case, Maynard said, Lake accused Richer of intentionally printing the wrong size ballots to "sabotage'' Election Day voting and said he injected more than 300,000 phony ballots into the system.
He said that came even after a trial judge hearing Lake's challenge to the election results found that she had provided nothing more than "speculation'' and "conjecture'' to support her claims of intentional misconduct. And Maynard also said that, as a matter of fact, Richer had nothing to do with Election Day operations in Maricopa County.
"Therefore, he could not have programmed -- or instructed others to program -- printing of mis-sized ballot images on Election Day,'' he said.
Richer sued Lake, her husband Jeffrey Halperin, her campaign and the Save Arizona Fund which Lake has used to raise cash for political purposes.
Normally the question of whether Lake had defamed Richer would be left to a jury.
But Lake, represented by the First Amendment Clinic at the Arizona State University College of Law, contends he shouldn't be allowed to get that far.
Gregg Leslie, the clinic's supervising attorney, says a 2006 law requires judges to immediately dismiss lawsuits they determine are "substantially motivated by a desire to deter, retaliate against or prevent the lawful exercise of a constitutional right.''
More to the point, he said the state's anti-SLAPP -- Strategic Action Against Public Participation -- statute is designed to promote public discourse. And that, Leslie said, makes the question of whether or not she was lying legally irrelevant in her effort to avoid having to go to court.
"Evaluation of the protections of (the law) have nothing to do with whether the speech is 'false,' as plaintiff has alleged,'' he said, because there would be no facts on the record when someone like Lake uses the anti-SLAPP law to ask a judge to have the case dismissed out of hand.
And Leslie said it makes no difference that that judges in Lake's other election-related lawsuits challenging the 2022 election ruled she failed to provide sufficient evidence of fraud to prevail.
"She is still entitled to have an opinion and state her beliefs about what happened in the 2022 election and who is to blame for mistakes,'' he told Adleman.
Maynard said that's not what this is about. What it is, he said, are the false statements she made disregarding the truth and, more immediately, her claim that the anti-SLAPP law entitles her to have Richer's case against her dismissed even even before he goes not court, "no matter how false or malicious the statements may be.''
"The anti-SLAPP statute authorizes dismissal of cases only where a defendant presents prima facie proof, at the outset of litigation, that a legal action is motivated by a desire to squelch the lawful exercise of a constitutional right,'' Maynard said.
"It is not, as defendants urge, a 'get out of defamation free' card,'' he said.
Maynard said the protections of the Anti-SLAPP law require two things: proof that someone lawfully exercised a constitutional right, and proof that Richer's lawsuit is improperly motivated by a desire to prevent or retaliate against that exercise.
He said Lake had no constitutional right to say what she did and escape being responsible for it.
"The First Amendment gives defendants ample breathing space to criticize Richer's performance of his duties as recorder,'' Maynard said. "But under longstanding First Amendment principles, a public official may recover damages for defamation if he proves the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not.''
And he said there is no evidence that Richer sued to squelch Lake's constitutional rights.
"Richer's motivation is to put a stop to the specific (ITALICS) defamatory statements (ROMAN) at issue in this case,'' Maynard said. And he said Richer sued "to remedy the harm done to him,'' Maynard said.
Leslie, however, said it is precisely this kind of situation for which the anti-SLAPP law was designed.
"Under this law, even though it may look like defendants have an advantage -- getting a libel case dismissed solely because it interferes with their free speech rights -- it is essential to realize that is exactly what the Legislature intended,'' he told the judge. "Speech about the integrity of the election process is exactly the type of 'public participation' that the Legislature chose to protect.''
Leslie has defended the decision by the First Amendment Clinic to represent Lake without cost even though she has several private lawyers who are handling other aspects of her legal fights over the outcome of the 2022 election.
"Politicians, especially those who are (ITALICS) not (ROMAN) public officials, have First Amendment rights when a public official takes them to court to demand they be silenced,'' he told Capitol Media Services.
"We would not be very respectable First Amendment attorneys if we only took on causes where we wanted to promote a particular political position.''
The clinic is funded by a nearly $1 million grant from the Stanton Foundation, established by the late Frank Stanton, the longtime president of CBS. And Leslie said no one should take anything from the fact that it is part of ASU.
"The clinic is part of a law firm within the law school that does not act in the name of the university or the college of law, much like a criminal defense clinic's representation of a client does not mean that the school (or the clinic) favors the actions of a particular defendant,'' he said.
No date has been set for Adleman to
consider the arguments.
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