House Democratic Caucus Leader Charlene Fernandez (D-LD4) was sued Friday for defamation by Rep. Mark Finchem and former state representative Anthony Kern, with all of the parties named in their personal, not legislative, capacity.
Finchem (R-LD11) and Kern contend Fernandez signed and publicly released a criminal referral letter she and other Democrats sent to Acting U.S. Attorney General Jeffrey Rosen and FBI Director Christopher Wray seeking an investigation into Finchem, Kern, and others. The Jan. 12 letter stated there “is evidence to indicate” the men “encouraged, facilitated, participated and possibly helped plan” the Jan. 6 riot at the U.S. Capitol.
The referral letter also said Finchem and Kern -who served LD20 from January 2015 to January 2021- may have “engaged in insurrection and rebellion.”
Finchem and Kern are asking a judge with the Yuma County Superior Court to order Fernandez, who lives in Yuma County, to publish “a full retraction of the false and malicious allegations” contained in the criminal referral. Their lawsuit also calls for an award of financial damages, attorneys’ fees, court costs, and “such further relief as the Court deems just.”
Fernandez will have 20 days after being served to file an answer with the court.
According to the lawsuit, Fernandez “baselessly accused” Finchem and Kern in the letter to Rosen and Wray of the “highest possible crimes against the Government of the United States.” The lawsuit also alleges Fernandez attempted to portray the criminal referral as an official act of the Arizona State Legislature by including the official state seal on the letterhead.
“In fact, however, the Criminal Referral was not an official act of the Arizona State Legislature, as no resolution of either the House or the Senate, or any of their committees, authorized the Criminal Referral,” the lawsuit states. “It was an act taken by Defendant beyond the scope of her legislative duties undergirded by no authorization of any nature the Arizona State Legislature.”
Finchem and Kern contend Fernandez was motivated by “a malicious intent” to chill political debate and block the men’s efforts to facilitate discussion of fraud in the 2020 Presidential election, as well as “the larger question of election integrity in general.”
In addition, the lawsuit contends Fernandez sought to criminally punish the two men for exercising their First Amendment rights which include peaceful demonstration and petitioning the “Government” for redress of grievances.
“The purpose of the First Amendment is to facilitate and encourage robust debate,” the lawsuit states. “Its purpose is not to encourage or facilitate baseless charges of criminal acts by one’s political adversaries, for base political purposes.”
Finchem and Kern point out Fernandez was not in Washington D.C. on Jan. 6, and thus did not personally witness any of the activities addressed in the criminal referral letter. She also was not acting within the discharge of any legislative duties, the lawsuit alleges.
“It was instead a personal act that was maliciously intended to take base political advantage of the reprehensible criminal conduct of those who rioted on Capitol Hill and invaded the Capitol itself in Washington DC on January 6, 2021,” the lawsuit states, adding that the fact Fernandez took part in releasing the referral letter to the media “further illustrated her malicious, base political motives.”
Finchem and Kern have been open about being at the nation’s capital on Jan. 6, but both have denied any participation in the violent riot. Despite the men’s comments, the Jan. 12 referral letter states social media posts “strongly suggest” the two were not only present but “actively encouraged the mob, both before and during the attack on the Capitol.”
In the last few weeks Finchem and the Democratic legislators have exchanged ethics complaints. Both were rejected by the Ethics Committee chairs.
According to the lawsuit, Fernandez and Kern also did not have a good working relationship when he was in the legislature.
“Prior to publishing her defamatory comments, Defendant had a prior history of making disparaging comments about Plaintiff Kern, including accusing him of being vindictive for holding Democratic bills as rules chairman,” the lawsuit states. In addition, Defendant had previously called for his removal from that position.”