Tucson Democratic Rep. Charlene Fernandez is asking a court to dismiss a defamation case brought against her by two Republican state legislators and a GOP congressman because statements Fernandez made to the FBI about the two GOP legislators are privileged.
The case stems from a letter sent by Fernandez and other Democratic lawmakers asking the FBI to investigate Rep. Mark Finchem (R-Oro Valley), former state Rep. Anthony Kern (R-Glendale) and GOP Congressman Paul Gosar's connections to the deadly Jan. 6 insurrection in Washington, D.C.
In February, the trio filed a lawsuit against Fernandez accusing her of defaming them by making disparaging remarks, connecting them to the violence of Jan. 6 and conspiring against them. The trio have not brought a suit against any of the 43 other Democratic legislators who also signed the letter.
The lawsuit was stalled for months because Fernandez was immune from being served while the legislature's annual session was taking place. But when the session ended, Fernandez waived service and both sides agreed to a 60-day response period which started at the end of the session on June 30.
“Contrary to all of the rhetoric… this is not a lawsuit about alleged fraud in the 2020 election, the purported suppression of conservative viewpoints by social media companies or issues of border security," Fernandez's attorney, David Bodney, wrote in the motion to dismiss the lawsuit. “Rather, this lawsuit is about whether state legislators – or, indeed, any Arizonan – may petition federal authorities to investigate potential crimes of the utmost seriousness without being dragged into court to face frivolous and retaliatory defamation litigation."
(Bodney represents the Arizona Mirror on matters relating to public records and other First Amendment issues.)
Bodney argued that the court should grant the motion to dismiss in part because the Democratic lawmakers were communicating with law enforcement entities. Arizona case law states that such communication is privileged and a person cannot be sued for making a report to law enforcement.
“Thus, the relevant question is whether the Criminal Referral constitutes a formal or informal complaint to a prosecutor or law enforcement," Bodney says. “Unquestionably, it is, as its name makes clear."
Bodney also argues that the three GOP officials have failed to show that Fernandez has demonstrated “actual malice" — that she knew or had the “high probability" that she knew the statements she was making were false or defamatory.
In their lawsuit against Fernandez, Finchem, Kern and Gosar pointed to public statements they made denouncing the violence of Jan. 6 as evidence that Fernandez acted with “actual malice."
“The fact that a public official has made self-serving denials of the conduct for which he is being criticized is insufficient to show actual malice as a matter of law," Bodney argued.
Bodney also suggested that the initial lawsuit by Finchem and Kern — Gosar was added as a plaintiff several months later — did little to distance themselves from the violence of Jan. 6 as well.
“It is not reckless disregard for the truth, by any definition, to assert that a man who returned to the scene of an ongoing riot should be investigated for his potential involvement in encouraging and supporting the rioters," Bodney said.
Footage reviewed by the Arizona Mirror has shown that Kern was closer to the Capitol than he said he was, and he was recorded on the Capitol grounds while violent clashes with police were still ongoing.
Finchem, too, has been found to have been closer to the Capitol on that day than he claimed.
Finchem has insisted that he never got within 500 yards of the Capitol building, but Getty footage of the failed attempt to stop Congress from certifying Joe Biden's election that was discovered by activists on Twitter shows Finchem walking directly in front of the east steps at the Capitol after pro-Trump rioters had already broken through a series of barricades and police lines, and then smashed their way into the Capitol building.
Fernandez is seeking attorney fees from Finchem, Kern and Gosar.
This isn't the first time Finchem has gone after his political rivals.
Earlier this year Finchem sent a cease and desist letter to the group who was seeking to recall him from office. Finchem said if they did not destroy all their campaign related material, which focused on Finchem's connections to Jan. 6, he would sue them for defamation.
One point of contention for Finchem in the cease and desist letter is his connection to the extremist Oath Keepers organization that the recall organizers pointed out.
Finchem has long been tied to the organization, but in his cease and desist his attorney claimed that the Oath Keepers is a “non-partisan" group and called allegations that it is anti-government to be “spurious claims." The letter also calls the Southern Poverty Law Center's website “hate-filled"
The FBI describes the Oath Keepers as a “loosely organized collection of militia who believe that the federal government have been coopted by a shadowy conspiracy that is trying to strip American citizens of their rights."
Sixteen Oath Keepers have been indicted thus far in a case that claims they coordinated to conspire to breach the U.S. Capitol on Jan. 6, with prosecutors saying that more could be prosecuted in the future.
Finchem's attorney, Alexander Kolodin, previously represented Cyber Ninjas, the Florida-based company conducting the Arizona Senate's “audit."
Arizona Mirror is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Arizona Mirror maintains editorial independence. Contact Editor Jim Small for questions: firstname.lastname@example.org. Follow Arizona Mirror on Facebook and Twitter.