AZ Election Lawyer Sanctioned After Bragging In Court That He Was Too Old To Care About Sanctions

AZ Election Lawyer Sanctioned After Bragging In Court That He Was Too Old To Care About Sanctions
Mar 2023

AZ Election Lawyer Sanctioned After Bragging In Court That He Was Too Old To Care About Sanctions
Yesterday, a Big Lie dead ender in Arizona got sanctioned, along with their lawyer. Nope, not Kari Lake ... another one.

"Arizona's courts have emphasized that sanctions should be awarded only in rare cases, so as not to discourage legitimate challenges," wrote Maricopa County Superior Court Judge Melissa Iyer Julian, before dropping the hammer on failed Republican Secretary of State candidate Mark Finchem and his counsel Daniel McCauley. "This is such a case."

Finchem, a former state representative and a member of the Oath Keepers militia who traveled to DC on January 6, 2021, claims both that the presidential election was stolen and that the Capitol Riot was instigated by Antifa. His lawyer Daniel McCauley appears to be a solo practitioner from Cave Creek with little to no election law experience before 2022, when he represented the Cochise County Board of Supervisors as it refused to comply with its statutory obligation to certify the midterm election returns. McCauley apparently bumbled into and out of federal court on the way to earning his clients a referral for prosecution from the Secretary of State.

And if you're guessing that this dynamite combo was going to go down like peanut butter and broken glass, you are correct.

The complaint itself is almost English ... if you round up and squint. Here's a bit where the plaintiff freestyles about printer failures at polling stations in Maricopa County, which resulted in ballots being fed to a tabulation machine offsite. Egads!:

None of these voters came to the polling place for such an unreliable and unprecedented voting experience. Each such voter was deprived of personally registering their vote - to the point of inconveniencing themselves by traveling to a polling location and often waiting an hour or more, sometimes much more, when mail-in voting with serious chain of custody flaws was available. More than that, a process that should be sacrosanct oozes impropriety.

After inveighing at length about several terrible hours when he was locked out of his Twitter account -- DAMN YOU, DEEP STATE! -- Finchem finally got to the gravamen of his complaint: the wrong person signed the machines' accreditation slip, making the ballots cast on them invalid and cruelly robbing the Republican candidate of 80,000 votes.

The problem with this claim was twofold. First, the machines were indeed appropriately certified, as the Secretary of State proved almost immediately in her motion to dismiss citing publicly available data. Second, Finchem lost the race by 120,000 votes. So even if his complaint was correct in every respect -- and it was not -- it would have made no difference to the outcome of the election.

The case was dismissed in December, after which the defendants, former Secretary of State now Governor Katie Hobbs and current Secretary of State Adrian Fontes, moved for sanctions. And yesterday they got them, at least insofar as the plaintiff and his counsel will now be on the hook for opposing counsel's fees. But Judge Julian's order describes McCauley's conduct in this case as downright bizarre.

Finchem's counsel apparently "admitted at oral argument that he had not reviewed the data provided" which would have proven the accreditation claims in the complaint were "groundless." Nor does he appear to have consulted the necessary expert to determine if 80,000 is greater or less than 120,000.

The court excoriated the attorney for entirely ignoring the relevant legal standard for an election contest in Arizona and for "admittedly decid[ing] to file this case after 'a number of experienced litigators' declined to," a fact the court suggests "should have prompted further investigation into the contest's validity."

And it did not get better from there. Apparently McCauley admitted in open court that he'd taken a wholly cavalier attitude toward the case, since he was nearing retirement and didn't much care if he got disbarred.

That McCauley had some awareness that this case lacked merit is apparent by his own comments during oral argument whereby he expressed being less at risk of being disbarred as a result of the filing given his impending retirement. This too supports sanctions as it demonstrates a conscious decision to pursue the matter despite appreciating that the contest had no legal merit.

Unsurprisingly, this failed to impress Judge Julian, who made Finchem and McCauley jointly liable for the defendants' fees. But perhaps it will impress Alan Dershowitz, who now ranks only second in embarrassing sanctions awards among attorneys earning such an honor in the 2022 midterms.

Silver linings!

Finchem v. Fontes Docket

Liz Dye lives in Baltimore where she writes about law and politics.