'Hail Mary legal theory' in Arizona voting suit didn't justify attorneys' sanction, dissenting 9th Circuit judges say
A federal trial judge should not have imposed a $122,200 sanction on two lawyers who filed a lawsuit seeking to replace electronic voting machines in Arizona with hand-counted paper ballots, according to six federal appeals judges who dissented from a refusal to grant an en banc rehearing in the case.
The sanctioned lawyers, Andrew Parker and Kurt Olsen, relied on a “Hail Mary legal theory,” but lawyers asserting such theories “don’t get sanctioned just because they are longshots,” wrote Judge Lawrence VanDyke of the 9th U.S. Circuit Court of Appeals at San Francisco in his Aug. 21 dissent. An appointee of President Donald Trump, he was joined by five other judges, including four appointed by Trump.
A 9th Circuit panel erred when it upheld the sanction in March, and the failure to grant en banc review “will be construed by many as implicitly blessing the district court’s weaponization of sanctions to chill politically disfavored litigation,” VanDyke wrote.
Parker and Olsen had represented two failed Republican candidates in Arizona, gubernatorial candidate Kari Lake and secretary of state candidate Mark Finchem. U.S. District Judge John J. Tuchi of the District of Arizona imposed the sanction under Rule 11 of the Federal Rules of Civil Procedure after finding that the suit made false and misleading claims about Arizona not using paper ballots and using voting machines that are untested and subject to manipulation.
Tuchi said the lawyers and their law firms were jointly and severally liable for the sanction, which represented the attorney fees incurred by Maricopa County, Arizona, in fighting the suit. He imposed the sanction after tossing the suit for lack of standing.
VanDyke said Tuchi “badly misapplied the standards for finding attorney conduct sanctionable” and “flatly misread the allegations in plaintiffs’ complaint.” The complaint didn’t actually say Arizona did not use paper ballots, but the federal judge found that the claim was implied and thus sanctionable, VanDyke said.
“Second, the district court boldly proclaimed that it levied sanctions on lead attorneys with the hope that doing so would ‘send a message’ to deter future litigants with similar claims—or, put bluntly, to deter a specific type of election litigation,” VanDyke said.
“Sanctions are not a tool for punishing disfavored litigants bringing disfavored claims or their attorneys,” VanDyke said.
Parker told Law360 that the dissent “underscores the dangerous nature of affirming the district court’s decision to issue sanctions in this case.” He plans to seek review by the U.S. Supreme Court.
The 9th Circuit previously reversed a more than $12,000 sanction for lawyer Alan Dershowitz, who was of counsel in the case, according to previous coverage by Reuters.
Law360 and the Daily Journal are among the publications covering the dissent. The Volokh Conspiracy and the Legal Profession Blog published opinion highlights.
The case is Lake v. Parker.
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