High court rejects arguments in Kari Lake case
She will have to defend herself in court in defamation case
PHOENIX – Kari Lake is going to have to defend herself in court against claims she defamed Maricopa County Recorder Stephen Richer.
In a brief order Tuesday, the Arizona Supreme Court rejected arguments by the failed 2022 gubernatorial candidate that she had a constitutional right to make the comments that she did about Richer and the way he conducted the 2022 election she lost to Democrat Katie Hobbs. And even if they were not true, she said, she either believed that they were or that the claims were mere “hyperbole,’’ both of which she said are protected against defamation claims.
The justices did not explain their ruling.
That means Lake’s free speech arguments have now been rejected by a trial judge, the state Court of Appeals and, now, the state’s high court. That leaves her nowhere to go other than back to trial.
“This decision affirms that Mr. Richer has meritorious claims and that, under well-established defamation and First Amendment law, Ms. Lake does not have any defense,’’ said Jared Davidson, an attorney for Richer. “We look forward to proceeding with discovery and to trial.’’
The judge has scheduled a pretrial hearing for August.
Lake does have another option: She could settle the case.
Richer, for his part, told Capitol Media Services, said it is up to Lake to approach him with any offer.
“If she wants to propose something, then we’d be willing to listen,’’ he said.
“But what it would need to include an acknowledgment that all of this has been false, that none of it was warranted,’’ Richer said. “And that needs to happen for my reputational and safety reparations to begin.’’
That issue of his reputation comes as Richer is running for reelection this year. He already faces opposition in the Republican primary from state Rep. Justin Heap.
During a press conference announcing his candidacy, Heap sidestepped questions about whether he believes recent elections were run fairly. But he took a slap at Richer, saying that “the incompetence of our country recorder contributes to the belief among all of our voters that things aren’t on the up and up.’’
As t the safety issue, Richer said he had to take measures to protect his family after Lake began making her allegations.
“There have been real damages,’’ he said. “So, yes, there would need to be real compensation.’’
There was no immediate response from Lake.
Richer sued Lake and her campaign last year, saying she “spread intentional or reckless falsehoods’’ about what he did in the 2022 election, statement he said harmed him and his family and resulted in threats of violence and death for family members.
One involves statements Lake repeatedly made that Richer intentionally printed ballots with 19-inch images on 20-inch ballots to sabotage the 2022 general election.
There were such misprints. And they created problems because the on-site tabulators at vote centers would not read the smaller images, resulting in lines at polling places and, in some case according to Lake, people leaving without being able to vote.
Lake also has said that Richer illegally inserted more than 300,000 phony ballots into the system.
The lawsuit says that Lake, her campaign, and the Save Arizona Fund, which Lake has used to raise money, all acted with “actual malice.’’ That is crucial because, in general, people who are considered public figures like Richer cannot sue for defamation unless they can prove by clear and convincing evidence that the person making the statement knew it to be false or that the statement was made with a reckless disregard for the truth.
Lake sought dismissal, claiming that her comments were “mere rhetorical hyperbole’’ that were never meant as statements of fact. But Maricopa County Superior Court Judge Jay Adleman last year refused Lake’s bid to toss the case, saying that it will be up to a jury to determine whether the statements are true or not.
In seeking to have the lawsuit dismissed, Lake argued that allowing the case to go to trial would harm political discourse.
“Although only defendants are on trial herein, the ability for constituents, and even his political opponents, to criticize Recorder Richer’s duties administered elections will be substantially chilled as constituents (and any candidates running against him) wonder if they too will be the target of a defamation claim – leading to self-censorship,’’ her lawyers wrote.
“Being criticized and responding to ‘outrageous’ claims is part and parcel with public life,’’ Lake’s attorneys said. “If Recorder Richer does not want to accept that his handling of elections will be subject to criticism, he should not be a public official, and should resign is office.’’
In requesting to have the case short-circuited, Lake’s attorneys also said that they need to put a halt – and now – to a trial that could run two weeks or more, “with tens of thousands of pages of exhibits, a half-dozen or more expert witnesses, which will be preceded by dozens of discovery disputes.’’ What the case comes down to, they said, is that 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,’’ they wrote.
Lake also has another theory of why she can’t be accused of libel: She actually believed the statements she made that Richer was responsible for the mis-sized ballots that created problems on Election Day.
But Richer’s lawyers have pointed out in court filings that the recorder handles early voting and ballots. By contrast, the operation of polling places left is up to the county Elections Department which answers not to Richer but to the separately elected Board of Supervisors.
That doesn’t matter, Lake said, saying that Richer has held himself out as the county’s chief elections officer.
“But then when people criticize him, claim 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 to be true, absent actual malice,’’ she said. “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.’’