Recall Arpaio Constitutionality Lawsuit - Motion For Sanctions

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DEFENDANT’S MOTION FOR SANCTIONS AGAINST PLAINTIFFS

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claim for relief supported by law.

In fact, plaintiffs’ Complaint is so lacking in legal merit as to be frivolous, subjecting

plaintiffs and their attorneys to sanctions in the form of attorney fees, court costs and expenses and

double damages under statute and rules of court. Specifically, plaintiffs are subject to sanctions in

and double damages up to $5,000 pursuant to Arizona Revised Statutes (“ARS”) § 12-349(A)

because their Complaint is groundless, was filed in bad faith and evidences plaintiffs’ intent to

harass defendant Respect Arizona.

In Arizona, the courts have held that the right to recall is sacrosanct, the product of this

state’s founders’ intention that the public have maximum freedom to remove from office elected

officials they find unsatisfactory for whatever reason. The courts thus construe recall laws liberally

in favor of protecting the right to recall. Therefore, plaintiffs’ frivolous legal maneuvering is

particularly reprehensible, considering that their lawsuit is nothing more than a misuse of the

judicial system to sustain a political assault against defendants and an attempt to thwart a recall

election. As discussed herein, defendant Respect Arizona amply demonstrates that this Court

should grant this motion and order that plaintiffs pay defendant’s attorney fees, court costs and

expenses, and double damages.

Argument

I. The Court Should Assess Attorney Fees, Expenses and Double Damages against Plaintiffs Pursuant to ARS § 12-349.

Arizona Revised Statutes § 12-349 “mandates fee awards for filing frivolous lawsuits.”

Phoenix Newspapers v. Dept. of Corr., 188 Ariz. 237, 243, 934 P.2d 801, 807 (Ariz. Ct. App.

1997). The statute provides that a court “shall assess reasonable attorney fees, expenses and, at the

court’s discretion, double damages” of up to $5,000 “against an attorney or party” that brings a

claim “without substantial justification.” ARS § 12-349(A)(1) (emphasis added). The term

“without substantial justification” means the claim “is groundless and is not made in good faith.”

ARS § 12-349(F).

The statute requires that movant show, by a preponderance of the evidence, each of the

following three elements: that the lawsuit was (1) groundless, (2) taken in bad faith and (3)

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harassing. Cypress on Sunland Homeowners Ass’n v. Orlandini, 227 Ariz. 288, 301, 257 P.3d

1168, 1181 (Ariz. Ct. App. 2011).

Courts determine groundlessness under an objective standard and examine “intent to

harass” and bad faith under a subjective standard. Phoenix Newspapers, 188 Ariz. at 244, 934 P.2d

at 808. Intent to harass “may be established by circumstantial evidence.” Id. at 245, 934 P.2d at

809. When making an award, the court must make findings of fact and conclusions of law for all

three elements and set forth specific reasons for the award, but the findings “need only be specific

enough to allow an appellate court to test the validity of the judgment.” Bennett v. Baxter Group,

Inc., 223 Ariz. 414, 421, 224 P.3d 230, 237 (Ariz. Ct. App. 2010). Awards made pursuant to ARS §

12-349 “may be allocated against the offending party and [its] attorney jointly or severally or by an

assessment of separate amounts.” In re Rhoads, 487 B.R. 214, 223 (Bankr. D. Ariz. 2013) (citing

ARS § 12-349(B)).

A. All of Plaintiffs’ Claims Are Groundless.

A claim “lacking in reason or validity” is groundless. Black’s Law Dictionary 723 (8th ed.

2004). Defendant Respect Arizona respectfully directs the Court to its Motion to Dismiss for a

thoroughgoing examination of the groundlessness of Plaintiffs’ complaint. For the Court’s

convenience, however, defendant Respect Arizona summarizes those points herein.

1. Plaintiffs’ first cause of action lacks any basis in state constitutional or statutory law.

Plaintiffs’ first cause of action (that the recall election violates the Arizona Constitution) is

groundless because it incorrectly relies on a constitutional provision that delays the initiation of a

recall election until the elected official has held office “for a period of six months,” Ariz. Const.

art. VIII, part 1, § 5. Here, the subject of the recall, sheriff Joe Arpaio (“Arpaio”), has held office

since 1992.

The claim is frivolous in light of ARS § 19-202 and Attorney General Opinion I81-064,

both of which specify that the six-month recall bar is not renewed on re-election. See Motion to

Dismiss, at 4-5. Plaintiffs attempt to get around this obvious impediment to the validity of their

claim by further asserting that the relevant constitutional provision “directly conflicts” with ARS §

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19-202, and thus the statute is “unconstitutional.” Complaint ¶ 30. This position ignores that the

Arizona Constitution provides that the legislature “shall enact” laws that “facilitate the operation”

of the provisions of article VIII (removal from office). Ariz. Const. art. 8, part 1, 6. In short, under

state constitutional and statutory law, plaintiffs’ positions that Arpaio’s recall is barred by the six-

month bar on recalls for newly elected officials and that ARS § 19-202 is unconstitutional are

without any basis in law and thus are groundless.

2. Plaintiffs’ second cause of action relies on a blatant attempt to mislead the court as to the relevant law.

Plaintiffs’ second cause of action (abuse of process) relies on an obvious attempt to omit

relevant law that undermines their position. Complaint ¶ 33. In short, plaintiffs cite case law so as

to support the proposition that a party with “an ulterior purpose” that willfully acts “in the use of

the process not in the regular conduct of the proceeding” is liable for abuse of process. Complaint ¶

33 (partially quoting Rondelli v. County of Pima, 120 Ariz. 483, 489, 586 P.2d 1296, 1301 (Ariz.

Ct. App. 1978)). Plaintiffs appear to refer to the election process. See Complaint ¶¶ 33-34.

Plaintiffs, however, left out the key provision enunciated in Rondelli that abuse of process is “an

act done under the authority of the court” that constitutes “a perversion of the judicial process.”

Rondelli, 120 Ariz. at 489, 586 P.2d at 1301. Certainly, a claim is groundless where supported by a

citation to case law that omits a relevant portion that would undermine the claim.

3. Plaintiffs’ third and fourth causes of action cite constitutional provisions that are plainly inapplicable to defendants.

Plaintiffs’ third and fourth causes of action are grounded in the due process and equal

protection clauses in the Arizona and U.S. constitutions. Complaint ¶¶ 40, 43. As discussed in

defendants’ Motion to Dismiss, state action is required for issues of due process or equal protection

to arise. Respect Arizona is a private political organization and in no conceivable way could be

viewed as a state actor. Because counts three and four of plaintiffs’ Complaint are entirely without

any legal basis, they are groundless. In summary, all of plaintiffs’ claims are groundless, and the

Court should find that defendants have met the groundlessness prong under ARS § 12-349.

B. Plaintiffs Submitted Their Complaint in Bad Faith.

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Bad faith is defined as “dishonesty of belief or purpose.” Black’s Law Dictionary 149 (8th

ed. 2004). Plaintiffs’ Complaint demonstrates both, especially in regard to its second cause of

action, where plaintiffs obviously omit a portion of case authority that renders their position (that

petitioning to recall a sheriff is an abuse of the judicial process) completely devoid of legal

grounding. Such a blatant attempt to mislead the Court should subject plaintiffs and their attorneys

to sanctions.1

Further evidence of plaintiffs’ bad faith is that their third and fourth causes of action are

entirely groundless, because they apply only to state actors but were taken against Respect Arizona,

a private party. Finally, plaintiffs’ position in their first cause of action, that ARS § 19-202 violates

the state constitution, wholly disregards relevant law and can only have been made in bad faith. In

sum, all of plaintiffs’ claims have been made in bad faith, and the Court should find that defendants

have met the bad faith prong under ARS § 12-349.

C. The Clear Purpose of Plaintiffs’ Complaint Was to Harass.

Purpose or intent of harassment can be shown by circumstantial evidence. Phoenix

Newspapers, 188 Ariz. at 245, 934 P.2d at 809. Here, there is ample direct and circumstantial

evidence that plaintiffs and their attorneys threatened and actually filed the within lawsuit for the

purpose of intimidating and harassing Respect Arizona and wrongfully used the judicial process in

an attempt to thwart the recall election.

1. Plaintiffs’ counsel’s threat letter and lawsuit hurt the recall effort.

First, plaintiffs’ counsel, Larry Klayman, sent Respect Arizona a three-page letter dated

February 20, 2013 in which he threatened not only to sue Respect Arizona if it did not “cease and

desist” from conducting signature gathering for the recall effort, but he also would turn Respect

1 Moreover, such a legal tactic should expose counsel to an investigation under ER 3.1

(prohibiting attorneys from bringing a case that is frivolous and without “a good basis in law and fact”). See also ER 3.1, cmt. [2] (lawyers are required to “inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith and nonfrivolous arguments in support of their clients’ positions”). Defendants encourage the Court to open such an inquiry, but at minimum to find that plaintiffs filed their Complaint in bad faith.

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Arizona over to law enforcement and drag the group through discovery. Declaration of Lilia

Alvarez (“Alvaraz Dec.”) ¶¶ 2, 4 and Exhibit A thereto.

Klayman’s letter characterizes Respect Arizona’s exercise of the democratic process as

“dangerous, subversive-like” and “fraudulent” activity and refers to the recall effort as a “criminal

… enterprise” and an “unconstitutional ‘abuse of process,’” ascribing Respect Arizona with

“conspiratorial criminal intent.” Alvarez Dec. ¶ 3 and Exhibit A thereto. Worth noting is that

Klayman, who is not licensed to practice in Arizona, includes not one citation to legal authority in

his threat letter. Alvarez Dec. ¶ 5 and Exhibit A thereto. Like plaintiffs’ complaint, the letter’s

assertions and threats are utterly lacking in legal grounding and intended to bully, intimidate and

mislead Respect Arizona and to obstruct the group’s recall efforts.

However hyperbolic and absurd Klayman’s language, his letter has had a debilitating effect

on the Respect Arizona’s efforts, because the media took the letter seriously and produced coverage

negative to Respect Arizona. The negative coverage caused recall supporters and other members of

the public became concerned regarding the validity or legality of the recall process that Respect

Arizona initiated. Alvarez Dec. ¶ 6-7.

Likewise, the actual filing of the instant groundless lawsuit generated further negative

media coverage. See Alvarez Dec. ¶ 7. As a result, doubt has been created in the public’s and

supporters’ minds as to whether Respect Arizona’s recall effort is legally valid or, because of legal

questions raised in plaintiffs’ frivolous lawsuit, whether Respect Arizona will be able to gather

enough signatures to place the recall election on the ballot. See id.

Respect Arizona has been contacted by volunteers and campaign donors who have

expressed concern that the campaign has not complied strictly with election rules and laws,

notwithstanding the fact that Respect Arizona has complied scrupulously with all relevant rules and

laws. Alvarez Dec. ¶ 9. Moreover, the lawsuit has harmed Respect Arizona’s limited budget and

has distracted Respect Arizona personnel away from their primary political tasks, as they must now

review legal documents, confer with counsel and answer questions from volunteers and other

supporters about the viability of the campaign. Alvarez Dec. ¶¶ 10-11.

2. Plaintiffs’ lawsuit is an attack on the sacrosanct right to recall.

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Worse still, plaintiffs’ groundless and frivolous lawsuit quite evidently was filed to have

exactly the above-described effect and to attempt to intimidate the Respect Arizona campaign and

its volunteers and other supporters. The lawsuit thus derogates from Arizona public policy

objectives clearly enunciated in Supreme Court opinions that the state Constitution provides the

legal framework to afford the public maximum freedom to recall elected officials.

For example, the court has underlined public’s right to “get rid” unsatisfactory office-

holders “for any or no reason.” Abbey v. Green, 28 Ariz. 53, 63, 235 P. 150, 154 (1925); see also In

re Stipek, 141 Wash.2d 756, 770 n.5 10 P.3d 1034, 1042 (Wash. 2000) (Arizona “permits the recall

of elected officers without cause”). Our Supreme Court further has found that “recall was an

important issue during [Arizona’s] Constitutional Convention of 1910. [Citation.] Sentiment

favoring recall was so strong that framers included in the constitution a recall provision for all

public officers . . . . Given this history, this court has interpreted constitutional and statutory

provisions governing recall liberally to protect the public’s right to recall its officials.” Ross v.

Bennett, 228 Ariz. 274, 176, 265 P.3d 356, 358 (2011) (second emphasis added).

In light of the foregoing, the right to recall elected officials in Arizona clearly is sacrosanct

– which makes plaintiffs’ filing of their groundless lawsuit for the purpose of attempting to derail

the recall effort all the more unconscionable. As demonstrated herein and in defendants’ Motion to

Dismiss, plaintiffs’ Complaint is obviously without legal merit, was made in bad faith, and plainly

has been intended as a tool to inflict political damage Respect Arizona’s recall activities – and

according to evidence it has been somewhat successful.

3. Plaintiffs have abused the judicial process.

Moreover, given plaintiffs’ “perversion of the judicial process to the accomplishment of an

improper purpose,” i.e. using a court case as a political weapon in an attempt to derail the recall

effort, it is ironic that plaintiffs baselessly accused defendants of abuse of process when in fact they

themselves appear liable under the tort. Rondelli, 120 Ariz. at 489, 586 P.2d at 1301.

Accordingly, defendants have met all three prongs required under case authority for an

award of attorney fees and double damages under ARS § 12-349. This Court therefore should grant

the within motion and order plaintiffs to pay defendants’ attorney fees, costs and expenses, plus

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double damages per ARS § 12-349(A).

II. Even if the Court Does Not Order Fees and Damages Under ARS § 12-349, It Should Order Plaintiffs to Pay Defendants’ Attorney Fees As a Sanction Pursuant to Rule 11(a).

A. Sanction is Appropriate Under Rule 11(a) Where the Attorney Knew His Conduct Was Culpable.

Procedural rules require that the attorney signing a pleading certify that to the best of the

signer’s knowledge, information and belief after reasonable inquiry, the pleading is “well grounded

in fact and is warranted by existing law or a good faith argument for the extension, modification, or

reversal of existing law; and that it is not interposed for any improper purpose, such as to harass.”

Rule 11(a) of the Rules of Civil Procedure for the Superior Courts of Arizona (“Rule 11(a)”). If a

pleading is signed in violation of this rule, the court “shall impose” on the attorney or client “an

appropriate sanction,” including reasonable attorney fees and costs. Id. (emphasis added).

Rule 11(a) (and companion language in ER 3.1) compel a court to consider both the

objective legal reasonableness of the theories advanced and the subjective motive of the proponent

of the claim. In re Levine, 174 Ariz. 146, 153, 847 P.2d 1093, 1100 (Ariz. 1993). The subjective

prong, i.e., that the attorney knew his or her conduct was culpable, “may be inferred from the

circumstances. In many cases . . . it will be possible to infer from the circumstances of a frivolous

litigation maneuver that the lawyer had actual knowledge of its frivolous character.” Id. at 154, 847

P.2d at 1101 (quoting Hazard & Hodes, The Law of Lawyering: A Handbook on the Model Rules

of Professional Conduct 331 (Student Ed. 1985)).

B. Plaintiffs Clearly Are Subject to Sanctions Under Rule 11(a).

Here, as thoroughly set forth in Respect Arizona’s Motion to Dismiss (as well as defendant

William James Fisher’s Motion to Dismiss), the lack of legal reasonableness of the claims in

plaintiffs’ complaint is beyond question. See, e.g., supra part I.A.; Motion to Dismiss, at 3-9.

Moreover, the Court easily can infer from the circumstances of plaintiffs’ frivolous legal threats

and maneuvering that their counsel had knowledge of the Complaint’s frivolous character. The

discussion above regarding bad faith and intent to harass under ARS § 12-349 further supports a

finding that plaintiffs’ counsel’s motives and conduct were culpable. See supra, part. I.B.-I.C. In

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Smith Law Firm 4310 N 75th Street, Suite A Scottsdale, AZ 85251 Larry Clayman 2020 Pennsylvania Ave., NW, Suite 800 Washginton, DC 20006

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DECLARATION OF LILIA ALVAREZ Page 1 of 3

DECLARATION OF LILIA ALVAREZ

I, LILIA ALVAREZ, declare:

1. I am over 18 years of age and serve as Campaign Manager for Respect Arizona, a

party to this action. Except where expressly indicated otherwise, I have personal knowledge of the

following facts and, if called as a witness to testify, could competently testify as to their truth. As to

those facts stated on information and belief, I believe them to be true.

2. In or about February 2012 Respect Arizona received a “Cease and Desist Demand”

letter dated February 20, 2013 from Klayman Law Firm, signed by plaintiffs’ attorney Larry

Klayman, Esq. Exhibit A. In the letter Klayman bills himself as “general counsel” of a shadowy

corporation called “Citizens to Protect Fair Election Results” (“CPFER”).1

3. In his letter, Klayman characterizes Respect Arizona’s exercise of the democratic

process as “dangerous, subversive-like” and “fraudulent” activity and refers to Respect Arizona’s

recall effort as a “criminal … enterprise” and an “unconstitutional ‘abuse of process,’” ascribing

the group with “conspiratorial criminal intent.” Exhibit A. Despite making such accusations, the

letter contains no citation to legal authority. Id.

4. However, Klayman’s letter threatens to turn Respect Arizona over to law

enforcement authorities, seek civil remedies and drag Respect Arizona through costly and time-

consuming discovery.

5. On or about April 9, 2013 Klayman, who on information and belief is not licensed

to practice law in Arizona, and Arizona attorney David Burnell Smith served on Respect Arizona

the within Summons and the within Complaint on behalf of Wise, Lichter and CPFER.

6. The effect of Klayman’s letter, his lawsuit threats, the attendant media coverage and

Klayman’s actual filing (with local counsel) of the instant case have had real and palpable effects

on Respect Arizona’s campaign to collect signatures for the recall of sheriff Joe Arpaio.

1 According to the Arizona Corporation Commission, CPFER’s managers / members are

plaintiffs Jeff Lichter and James D. Wise, both of Surprise, Arizona. See http://starpas.azcc.gov/scripts/cgiip.exe/WService=wsbroker1/names-detail.p?name-id=L18229023&type=L.L.C.

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DECLARATION OF LILIA ALVAREZ Page 2 of 3

7. However baseless and frivolous the lawsuit, it has garnered press attention and

called into question in the public’s mind the legal validity of the recall election. For example,

numerous articles regarding the lawsuit have been published, creating doubt in the public’s and

supporters’ minds as to whether Respect Arizona’s recall effort is legally valid or, because of legal

questions that have been raised by plaintiffs’ frivolous lawsuit, whether Respect Arizona will be

able to gather enough signatures to place the recall election on the ballot. Examples of the media

coverage include:

a. Group calls for end of Arpaio recall. Ha Ha Ha! Threatens lawsuit. Ha Ha Ha,

DAILY KOS, Feb. 20, 2013,

http://www.dailykos.com/story/2013/02/21/1188682/-Group-calls-for-end-of-

Arpaio-recall-Ha-Ha-Ha-Threatens-lawsuit-Ha-Ha-Ha

b. Ronald J. Hansen, Activist files lawsuit to halt Arpaio recall, ARIZONA

REPUBLIC, Mar. 21, 2013,

http://www.azcentral.com/news/politics/articles/20130321activist-files-lawsuit-

halt-arpaio-recall.html

c. Associated Press, Group plans to file suit over Arpaio recall effort, ABC15.COM,

Mar. 21, 2013,

http://www.abc15.com/dpp/news/region_phoenix_metro/central_phoenix/group-

plans-to-file-suit-over-arpaio-recall-effort

d. Wingers file lawsuit to stop Sheriff Arpaio recall, DAILY KOS, Mar. 22, 2013,

http://www.dailykos.com/story/2013/03/22/1196043/-Wingers-file-lawsuit-to-

stop-Sheriff-Arpaio-recall

e. Alice Kleinpeter, Arpaio recall group threatened with lawsuit by sheriff’s

backers, CRONKITENEWSONLINE, March 25, 2013,

http://cronkitenewsonline.com/2013/03/arpaio-recall-group-threatened-with-

lawsuit-by-sheriffs-backers/

Recall Arpaio Constitutionality Lawsuit - Motion For Sanctions

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