The Arizona Supreme Court moved swiftly to grant Senatorial candidate, Kari Lake, a stay in a case of defamation brought by Maricopa County Recorder Stephen Richer, a public figure.
Within hours of receiving a request from Lake’s attorneys, the Supreme Court issued an Order staying a Maricopa Superior Court ruling in which Richer’s case was not summarily dismissed. The Supreme Court found:
On January 16, 2024, Lake’s attorneys filed a “Petition for Review of a Special Action Decision of the Court of Appeals” and a “Motion to Stay Trial Court Proceedings: Expedited Consideration Requested.” The motion seeks to stay trial proceedings while this Court considers the Petition for Review; it states that the Real Party in Interest opposes the motion.
Upon consideration,
IT IS ORDERED that proceedings in the superior court are stayed for the limited purpose of obtaining a response to the Petition for Review. Proceedings in the superior court are stayed until further order of this Court.
IT IS FURTHER ORDERED that no later than Tuesday, February 6, 2024, the Real Party in Interest shall file a response to the Petition for Review. (Hon. John R Lopez IV)
Richer has three weeks to respond to Lake’s Petition for Review.
In their request to the Supreme Court, Lake’s attorney wrote in part:
The Plaintiff in this matter, Maricopa County Recorder Stephen Richer (“Recorder Richer”), generally objects to being criticized. This is inconvenient, because Recorder Richer is an elected official, and in America, elected officials are often subject to free speech protected criticism that “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 84 S.Ct. 710, 721 (1964).
Recorder Richer also wants to have it both ways in terms of his duties in running elections. On one hand, Recorder Richer holds himself out as “the chief elections officer” in Maricopa County, but then when people criticize him, claiming he botched Election Day voting, he disavows any responsibility over Election Day. These tactics are unavailing because when it comes to defamation, truth is a defense, but so is making allegations against public figures one believes true, absent actual malice. See, e.g., Harris v. Warner in and for County of Maricopa, 255 Ariz. 29, ¶11 (2023). So, when Recorder Richer tells everyone that he is in charge of elections, it is only natural that he would be criticized when things go awry on Election Day, as occurred in 2022.
Perhaps most importantly, Recorder Richer’s allegations are not new. In fact, though in a different iteration, the substance of these defamation allegations were already rejected and issue preclusion applies to bar them here. That is, all the statements 2 that form the basis of the First Amended Complaint (“Complaint”)1 were the basis of Defendant Kari Lake’s (“Lake’s”) challenge contesting the results of the gubernatorial race in 2022. Recorder Richer twice moved the trial court for sanctions and twice failed. If a court rejects arguments that the opposing party made certain claims in bad faith, it is inconceivable that the opposing party would be found to have acted with actual malice in making those very same claims out of court.
This lawsuit represents Recorder Richer’s third effort to punish Lake for legally challenging the 2022 election. Recorder Richer failed twice already, supporting a finding of issue preclusion, and the statements made by Lake are protected by the free speech provisions in the Arizona and United States Constitution.
In addition, this case should be dismissed under A.R.S. § 12-751 (Arizona’s “Anti-SLAPP Statute”). Notably, when the initial version of the Anti-SLAPP Statute was passed in 2006, the Legislature, in its “findings and declarations” stated:
It is the policy of this state that the rights of citizens and organizations under the constitutions of the United States and this state to be involved and participate freely in the process of government shall be encouraged and safeguarded with great diligence. … The laws, courts and other agencies of this state and its political subdivisions shall provide the utmost protection for the free exercise of these petition, speech and association rights.
On January 4th, Lake’s attorneys filed a petition for Special Action with the Court Of Appeals. On January 10th the Court of Appeals declined the Special Action. Then Lake’s team filed a Petition For Review five days later. The Supreme Court granted the motion to stay within hours on January 16th.
Lake, who is represented by attorneys Jennifer Wright and Tim LaSota, as well as ASU Law’s First Amendment Clinic, is battling Richer on similar grounds ruled on in the landmark decision against failed Senate candidate Daile McCarthy against conservative radio show host James T. Harris.
In that case, the Court found that the conservative talk show host’s comments about the failed candidate were political speech protected by the First Amendment.
As a result, the lawsuit filed against James T. Harris and iHeartRadio by Daniel McCarthy was been referred back to a Maricopa County judge with instructions to dismiss McCarthy’s complaint with prejudice.
“For political speech to ultimately serve the interests of public discourse in a constitutional republic, it is fitting to recall the words of George Washington: ‘In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened,’” Justice William Montgomery wrote for the Court.
The unanimous decision stems from a November 2020 political rally attended by both McCarthy, who was trounced by Martha McSally in that year’s Republican primary for U.S. Senate, and Harris, the popular host of The Conservative Circus for iHeart-owned KFYI in Phoenix.
During two of his subsequent shows, Harris discussed his participation at the rally as well as his interactions with McCarthy. Harris also provided commentary on McCarthy’s fitness for office, McCarthy’s campaign finance rumors, and the demeanor of McCarthy’s supporters at the rally.
McCarthy sued Harris and iHeart in February 2021, seeking $20 million in compensatory damages and $100 million in punitive damages for alleged defamatory statements during Harris’s shows.
Judge Randall Warner of the Maricopa County Superior Court sided with Harris and iHeart in dismissing the majority of McCarthy’s claims, which the judge noted were clearly Harris’ opinions and therefore not actionable under Arizona’s defamation law.
Warner, however, refused to dismiss nine comments challenged in the lawsuit. The judge’s July 2021 ruling stated McCarthy should be given an opportunity to further argue that those few comments were false and actionable under the law.
Like Lake’s attorneys, Harris and iHeart then filed a Petition for Special Action challenging Warner’s disregard for the constitutional protections long afforded political speech, opinion, and rhetorical hyperbole.
As in Lake’s case, the Arizona Court of Appeals declined to hear the petition in September 2021, but the Arizona Supreme Court put Warner’s ruling on hold while the justices decided whether to take up the case.
In April 2023, the Arizona Supreme Court found all nine of those remaining claims were political commentary protected under Harris’ First Amendment rights and must be dismissed as well.
“This is a censorship case—pure and simple,” Lake told the Arizona Daily Independent. “The government official suing me is being represented by Obama and Soros linked attorneys. Stephen Richer ran banana-Republic style elections in Maricopa County and he doesn’t want to be held accountable. His use of tyrannical lawfare is an assault our freedom of speech and is election interference designed to distract me from the very important United States Senate race where I am the leading candidate. He is OK with the first amendment being trampled so he can save face.”
“This case should be tossed out and in a just court system— it will be,” asserted Lake.
“If this case is allowed to proceed, protected political speech will no longer be protected, freedom of the press will no longer be protected and citizens who want to speak out at school board meetings, city council meetings, etc., or who simply want to criticize government officials will be muzzled,” explained Lake. “If this case moves forward, American citizens across the nation will have to worry that everything they say could result in a defamation lawsuit. The fact that the fake news is cheering on this case is shocking and proves they don’t respect the United States Constitution and our First Amendment rights.”