FRCP 11 Sanctions
Kari Lake, et al., v. Katie Hobbs, et al.,
No. CV-22-00677-PHX-JJT U. S. District Court for Arizona
All politics aside, the recent controversy in the 2022 Arizona election has generated an unusual opportunity to witness a U. S. District Court Judge put Federal Rules of Civil Procedure (FRCP) Rule 11 sanctions into practice.
When an attorney or litigant files a pleading with a federal court, Rule 11 provides that certain representations are implicit in the submission. Specifically, Rule 11(b) provides,
“ . . . . an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; [and]
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. . . . “
If Rule 11 is violated, the Court may impose sanctions upon the litigant or the attorney.
In Lake v. Hobbs, Plaintiffs challenged the procedures for administering elections in
Arizona and sought an injunction compelling Defendants—election officials at the state
and county levels—to follow alternative procedures for collecting, storing, counting, and
tabulating votes in the 2022 midterm election.
“Broadly, Plaintiffs alleged that the electronic voting machines certified for use in Arizona, including optical scanners and ballot marking devices . . . are “potentially unsecure, lack adequate audit capacity, fail to meet minimum statutory requirements, and deprive voters of the right to have their votes counted and reported in an accurate, auditable, legal, and transparent process.”
. . . Plaintiffs alleged that the machines are “rife” with cybersecurity vulnerabilities and allow for unauthorized persons to manipulate the reported vote counts in an election and potentially change the winner.
. . . Plaintiffs claimed that Arizona’s audit regime is insufficient to negate these vulnerabilities and that the only way to overcome the security issues they identify is “for the Court to Order, an election conducted by paper ballot, as an alternative to the current framework.” . . .
Plaintiffs requested that the Court implement certain procedures, including the use of paper ballots and a live-streamed hand-count of all ballots cast.
. . . Plaintiffs maintained that the Cyber Ninjas’ hand count of two contests in the 2020 general election in Maricopa County offers “a proof-of-concept and a superior alternative to relying on corruptible electronic voting systems.” . . . . “
In July, 2022, the Court dismissed Plaintiffs’ Complaint and the Defendants requested the Court impose sanctions under Rule 11. Defendants argued that Plaintiffs and their counsel made “numerous false allegations about Arizona elections in their [complaint] . . . , that Plaintiffs’ claims are frivolous, and that they pursued this case for the improper purpose of undermining confidence in elections and furthering their political campaigns.”
The court wrote:
Applying Rule 11 “requires sensitivity to two competing considerations . . . On the one hand, . . . on occasion attorneys engage in litigation tactics so vexatious as to be unjustifiable even within the broad bounds of our adversarial system, and . . . neither the other parties nor the courts should have to abide such behavior or waste time and money coping with it.” . . . Thus, “the central purpose of Rule 11 is to deter baseless filings.” . . . On the other hand, . . . our system of litigation is an adversary one, and . . . presenting the facts and law as favorably as fairly possible in favor of one’s client is the nub of the lawyer’s task.” . . . Sanctions therefore should be imposed “only in the most egregious situations, lest lawyers be deterred from vigorous representation of their clients. . . .”
“. . . . Sanctions . . . must be supported by a finding of subjective bad faith. . .Bad faith is present when an attorney knowingly or recklessly raises a frivolous argument or argues a meritorious claim for the purpose of harassing an opponent.”
Plaintiffs made false allegations and representations that Arizona voters do not vote by hand on paper ballots. However, every Arizona voter casts a ballot by hand, on
paper. This is the law in Arizona.
In Arizona, there must be a paper ballot that can be used in the event of a vote audit. It cannot be disputed that Arizona already requires and uses paper ballots. Allegations to the contrary are simply false. A system that uses paper ballots for recording votes and electronic machines for tabulating them remains a “paper-based voting system.”
Plaintiffs falsely alleged that Arizona voters cast their ballots by electronic voting machines.
In conclusion, the Court found that sanctions were warranted under Rule 11 and 28 U.S.C. § 1927.
Plaintiffs made false, misleading, and unsupported factual assertions and that their claims for relief did not have an adequate factual or legal basis grounded in a reasonable pre-filing inquiry.
Plaintiffs’ counsel acted at least recklessly in unreasonably and vexatiously multiplying the proceedings by seeking a preliminary injunction based on Plaintiffs’ frivolous claims, in violation of Section 1927.
Improper Purpose
Although the Court did not find that the Plaintiffs acted appropriately in this litigation, neither did it find that they acted with an improper purpose.
The Court shared the concerns expressed by other federal courts about the misuse of the judicial system to baselessly cast doubt on the electoral process in a manner that is conspicuously consistent with the plaintiffs’ political ends.
The court granted the Defendants’ motion for sanctions under Rule 11 and directed the defendants to specify their attorney’s fees in defending the case.
Tom Fox, J. D.
Louisville, Kentucky
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