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Judge slams political 'harassment' suit filed by 3 AZ Republicans

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State Rep. Mark Finchem, an Oro Valley Republican, participated in the protest at the U.S. Capitol on Jan. 6, 2021, and tweeted his support about an hour before rioters broke into the Capitol.

PHOENIX — Three Republican lawmakers have to pay the legal fees of a Democratic foe for filing what a judge called a meritless lawsuit against her.

The judge said 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, now former state Rep. Anthony Kern, and U.S. Rep. Paul Gosar in connection with the events around the Jan. 6, 2021, riot and breach of the U.S. Capitol.

The judge, Yuma County Superior Court Judge Levi Gunderson, said the trio’s subsequent defamation lawsuit against Fernandez “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 three Republicans 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.

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. Fernandez, along with other Democratic lawmakers, had sent a letter to the FBI and the Department of Justice asking that they investigate Finchem and Kern, who were in Washington for events on Jan. 6. The letter 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.’’

Finchem, Kern and Gosar, through their attorneys, contend 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.’’

There never was a clear explanation why they singled Fernandez out to sue.

But the lawsuit said 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 said 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 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 Joe Biden’s win.

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 Biden’s election 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.

They also alleged there were problems with the integrity of electronic voting systems.

They said there were “ample grounds’’ to challenge the outcome of the race and that’s 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, of Oro Valley, is now the Republican nominee for secretary of state, and he faces Democrat Adrian Fontes in the November general election.

Kern, of Glendale, 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 in November to take a job in the Biden administration.


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