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1 claim for relief supported by law.

2
In fact, plaintiffs Complaint is so lacking in legal merit as to be frivolous, subjecting

3 plaintiffs and their attorneys to sanctions in the form of attorney fees, court costs and expenses and 4 double damages under statute and rules of court. Specifically, plaintiffs are subject to sanctions in 5 and double damages up to $5,000 pursuant to Arizona Revised Statutes (ARS) 12-349(A) 6 because their Complaint is groundless, was filed in bad faith and evidences plaintiffs intent to 7 harass defendant Respect Arizona. 8
In Arizona, the courts have held that the right to recall is sacrosanct, the product of this

9 states founders intention that the public have maximum freedom to remove from office elected 10 officials they find unsatisfactory for whatever reason. The courts thus construe recall laws liberally 11 in favor of protecting the right to recall. Therefore, plaintiffs frivolous legal maneuvering is 12 particularly reprehensible, considering that their lawsuit is nothing more than a misuse of the 13 judicial system to sustain a political assault against defendants and an attempt to thwart a recall 14 election. As discussed herein, defendant Respect Arizona amply demonstrates that this Court 15 should grant this motion and order that plaintiffs pay defendants attorney fees, court costs and 16 expenses, and double damages. 17 18 19 20
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.

21 Phoenix Newspapers v. Dept. of Corr., 188 Ariz. 237, 243, 934 P.2d 801, 807 (Ariz. Ct. App. 22 1997). The statute provides that a court shall assess reasonable attorney fees, expenses and, at the 23 courts discretion, double damages of up to $5,000 against an attorney or party that brings a 24 claim without substantial justification. ARS 12-349(A)(1) (emphasis added). The term 25 without substantial justification means the claim is groundless and is not made in good faith. 26 ARS 12-349(F). 27
The statute requires that movant show, by a preponderance of the evidence, each of the

28 following three elements: that the lawsuit was (1) groundless, (2) taken in bad faith and (3)
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1 harassing. Cypress on Sunland Homeowners Assn v. Orlandini, 227 Ariz. 288, 301, 257 P.3d 2 1168, 1181 (Ariz. Ct. App. 2011). 3
Courts determine groundlessness under an objective standard and examine intent to

4 harass and bad faith under a subjective standard. Phoenix Newspapers, 188 Ariz. at 244, 934 P.2d 5 at 808. Intent to harass may be established by circumstantial evidence. Id. at 245, 934 P.2d at 6 809. When making an award, the court must make findings of fact and conclusions of law for all 7 three elements and set forth specific reasons for the award, but the findings need only be specific 8 enough to allow an appellate court to test the validity of the judgment. Bennett v. Baxter Group, 9 Inc., 223 Ariz. 414, 421, 224 P.3d 230, 237 (Ariz. Ct. App. 2010). Awards made pursuant to ARS 10 12-349 may be allocated against the offending party and [its] attorney jointly or severally or by an 11 assessment of separate amounts. In re Rhoads, 487 B.R. 214, 223 (Bankr. D. Ariz. 2013) (citing 12 ARS 12-349(B)). 13 14
A. All of Plaintiffs Claims Are Groundless. A claim lacking in reason or validity is groundless. Blacks Law Dictionary 723 (8th ed.

15 2004). Defendant Respect Arizona respectfully directs the Court to its Motion to Dismiss for a 16 thoroughgoing examination of the groundlessness of Plaintiffs complaint. For the Courts 17 convenience, however, defendant Respect Arizona summarizes those points herein. 18 19 20
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

21 groundless because it incorrectly relies on a constitutional provision that delays the initiation of a 22 recall election until the elected official has held office for a period of six months, Ariz. Const. 23 art. VIII, part 1, 5. Here, the subject of the recall, sheriff Joe Arpaio (Arpaio), has held office 24 since 1992. 25
The claim is frivolous in light of ARS 19-202 and Attorney General Opinion I81-064,

26 both of which specify that the six-month recall bar is not renewed on re-election. See Motion to 27 Dismiss, at 4-5. Plaintiffs attempt to get around this obvious impediment to the validity of their 28 claim by further asserting that the relevant constitutional provision directly conflicts with ARS
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1 19-202, and thus the statute is unconstitutional. Complaint 30. This position ignores that the 2 Arizona Constitution provides that the legislature shall enact laws that facilitate the operation 3 of the provisions of article VIII (removal from office). Ariz. Const. art. 8, part 1, 6. In short, under 4 state constitutional and statutory law, plaintiffs positions that Arpaios recall is barred by the six5 month bar on recalls for newly elected officials and that ARS 19-202 is unconstitutional are 6 without any basis in law and thus are groundless. 7 8 9
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

10 relevant law that undermines their position. Complaint 33. In short, plaintiffs cite case law so as 11 to support the proposition that a party with an ulterior purpose that willfully acts in the use of 12 the process not in the regular conduct of the proceeding is liable for abuse of process. Complaint 13 33 (partially quoting Rondelli v. County of Pima, 120 Ariz. 483, 489, 586 P.2d 1296, 1301 (Ariz. 14 Ct. App. 1978)). Plaintiffs appear to refer to the election process. See Complaint 33-34. 15 Plaintiffs, however, left out the key provision enunciated in Rondelli that abuse of process is an 16 act done under the authority of the court that constitutes a perversion of the judicial process. 17 Rondelli, 120 Ariz. at 489, 586 P.2d at 1301. Certainly, a claim is groundless where supported by a 18 citation to case law that omits a relevant portion that would undermine the claim. 19 20 21
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

22 protection clauses in the Arizona and U.S. constitutions. Complaint 40, 43. As discussed in 23 defendants Motion to Dismiss, state action is required for issues of due process or equal protection 24 to arise. Respect Arizona is a private political organization and in no conceivable way could be 25 viewed as a state actor. Because counts three and four of plaintiffs Complaint are entirely without 26 any legal basis, they are groundless. In summary, all of plaintiffs claims are groundless, and the 27 Court should find that defendants have met the groundlessness prong under ARS 12-349. 28
B. Plaintiffs Submitted Their Complaint in Bad Faith.
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Bad faith is defined as dishonesty of belief or purpose. Blacks Law Dictionary 149 (8th

2 ed. 2004). Plaintiffs Complaint demonstrates both, especially in regard to its second cause of 3 action, where plaintiffs obviously omit a portion of case authority that renders their position (that 4 petitioning to recall a sheriff is an abuse of the judicial process) completely devoid of legal 5 grounding. Such a blatant attempt to mislead the Court should subject plaintiffs and their attorneys 6 to sanctions.1 7
Further evidence of plaintiffs bad faith is that their third and fourth causes of action are

8 entirely groundless, because they apply only to state actors but were taken against Respect Arizona, 9 a private party. Finally, plaintiffs position in their first cause of action, that ARS 19-202 violates 10 the state constitution, wholly disregards relevant law and can only have been made in bad faith. In 11 sum, all of plaintiffs claims have been made in bad faith, and the Court should find that defendants 12 have met the bad faith prong under ARS 12-349. 13 14
C. The Clear Purpose of Plaintiffs Complaint Was to Harass. Purpose or intent of harassment can be shown by circumstantial evidence. Phoenix

15 Newspapers, 188 Ariz. at 245, 934 P.2d at 809. Here, there is ample direct and circumstantial 16 evidence that plaintiffs and their attorneys threatened and actually filed the within lawsuit for the 17 purpose of intimidating and harassing Respect Arizona and wrongfully used the judicial process in 18 an attempt to thwart the recall election. 19 20
1. Plaintiffs counsels threat letter and lawsuit hurt the recall effort. First, plaintiffs counsel, Larry Klayman, sent Respect Arizona a three-page letter dated

21 February 20, 2013 in which he threatened not only to sue Respect Arizona if it did not cease and 22 desist from conducting signature gathering for the recall effort, but he also would turn Respect 23 24
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 25 fact). See also ER 3.1, cmt. [2] (lawyers are required to inform themselves about the facts of their 26 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 27 inquiry, but at minimum to find that plaintiffs filed their Complaint in bad faith.
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1 Arizona over to law enforcement and drag the group through discovery. Declaration of Lilia 2 Alvarez (Alvaraz Dec.) 2, 4 and Exhibit A thereto. 3
Klaymans letter characterizes Respect Arizonas exercise of the democratic process as

4 dangerous, subversive-like and fraudulent activity and refers to the recall effort as a criminal 5 enterprise and an unconstitutional abuse of process, ascribing Respect Arizona with 6 conspiratorial criminal intent. Alvarez Dec. 3 and Exhibit A thereto. Worth noting is that 7 Klayman, who is not licensed to practice in Arizona, includes not one citation to legal authority in 8 his threat letter. Alvarez Dec. 5 and Exhibit A thereto. Like plaintiffs complaint, the letters 9 assertions and threats are utterly lacking in legal grounding and intended to bully, intimidate and 10 mislead Respect Arizona and to obstruct the groups recall efforts. 11
However hyperbolic and absurd Klaymans language, his letter has had a debilitating effect

12 on the Respect Arizonas efforts, because the media took the letter seriously and produced coverage 13 negative to Respect Arizona. The negative coverage caused recall supporters and other members of 14 the public became concerned regarding the validity or legality of the recall process that Respect 15 Arizona initiated. Alvarez Dec. 6-7. 16
Likewise, the actual filing of the instant groundless lawsuit generated further negative

17 media coverage. See Alvarez Dec. 7. As a result, doubt has been created in the publics and 18 supporters minds as to whether Respect Arizonas recall effort is legally valid or, because of legal 19 questions raised in plaintiffs frivolous lawsuit, whether Respect Arizona will be able to gather 20 enough signatures to place the recall election on the ballot. See id. 21
Respect Arizona has been contacted by volunteers and campaign donors who have

22 expressed concern that the campaign has not complied strictly with election rules and laws, 23 notwithstanding the fact that Respect Arizona has complied scrupulously with all relevant rules and 24 laws. Alvarez Dec. 9. Moreover, the lawsuit has harmed Respect Arizonas limited budget and 25 has distracted Respect Arizona personnel away from their primary political tasks, as they must now 26 review legal documents, confer with counsel and answer questions from volunteers and other 27 supporters about the viability of the campaign. Alvarez Dec. 10-11. 28
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

2 exactly the above-described effect and to attempt to intimidate the Respect Arizona campaign and 3 its volunteers and other supporters. The lawsuit thus derogates from Arizona public policy 4 objectives clearly enunciated in Supreme Court opinions that the state Constitution provides the 5 legal framework to afford the public maximum freedom to recall elected officials. 6
For example, the court has underlined publics right to get rid unsatisfactory office-

7 holders for any or no reason. Abbey v. Green, 28 Ariz. 53, 63, 235 P. 150, 154 (1925); see also In 8 re Stipek, 141 Wash.2d 756, 770 n.5 10 P.3d 1034, 1042 (Wash. 2000) (Arizona permits the recall 9 of elected officers without cause). Our Supreme Court further has found that recall was an 10 important issue during [Arizonas] Constitutional Convention of 1910. [Citation.] Sentiment 11 favoring recall was so strong that framers included in the constitution a recall provision for all 12 public officers . . . . Given this history, this court has interpreted constitutional and statutory 13 provisions governing recall liberally to protect the publics right to recall its officials. Ross v. 14 Bennett, 228 Ariz. 274, 176, 265 P.3d 356, 358 (2011) (second emphasis added). 15
In light of the foregoing, the right to recall elected officials in Arizona clearly is sacrosanct

16 which makes plaintiffs filing of their groundless lawsuit for the purpose of attempting to derail 17 the recall effort all the more unconscionable. As demonstrated herein and in defendants Motion to 18 Dismiss, plaintiffs Complaint is obviously without legal merit, was made in bad faith, and plainly 19 has been intended as a tool to inflict political damage Respect Arizonas recall activities and 20 according to evidence it has been somewhat successful. 21 22
3. Plaintiffs have abused the judicial process. Moreover, given plaintiffs perversion of the judicial process to the accomplishment of an

23 improper purpose, i.e. using a court case as a political weapon in an attempt to derail the recall 24 effort, it is ironic that plaintiffs baselessly accused defendants of abuse of process when in fact they 25 themselves appear liable under the tort. Rondelli, 120 Ariz. at 489, 586 P.2d at 1301. 26
Accordingly, defendants have met all three prongs required under case authority for an

27 award of attorney fees and double damages under ARS 12-349. This Court therefore should grant 28 the within motion and order plaintiffs to pay defendants attorney fees, costs and expenses, plus
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1 double damages per ARS 12-349(A). 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28


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 signers 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 Arizonas Motion to Dismiss (as well as defendant William James Fishers 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 Complaints frivolous character. The discussion above regarding bad faith and intent to harass under ARS 12-349 further supports a finding that plaintiffs counsels motives and conduct were culpable. See supra, part. I.B.-I.C. In
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1 4310 N 75th Street, Suite A 2 Scottsdale, AZ 85251 3 Larry Clayman 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28


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Smith Law Firm

4 Washginton, DC 20006

2020 Pennsylvania Ave., NW, Suite 800

DECLARATION OF LILIA ALVAREZ

2 I, LILIA ALVAREZ, declare: 3 1. I am over 18 years of age and serve as Campaign Manager for Respect Arizona, a

4 party to this action. Except where expressly indicated otherwise, I have personal knowledge of the 5 following facts and, if called as a witness to testify, could competently testify as to their truth. As to 6 those facts stated on information and belief, I believe them to be true. 7 2. In or about February 2012 Respect Arizona received a Cease and Desist Demand

8 letter dated February 20, 2013 from Klayman Law Firm, signed by plaintiffs attorney Larry 9 Klayman, Esq. Exhibit A. In the letter Klayman bills himself as general counsel of a shadowy
1 10 corporation called Citizens to Protect Fair Election Results (CPFER).

11

3.

In his letter, Klayman characterizes Respect Arizonas exercise of the democratic

12 process as dangerous, subversive-like and fraudulent activity and refers to Respect Arizonas 13 recall effort as a criminal enterprise and an unconstitutional abuse of process, ascribing 14 the group with conspiratorial criminal intent. Exhibit A. Despite making such accusations, the 15 letter contains no citation to legal authority. Id. 16 4. However, Klaymans letter threatens to turn Respect Arizona over to law

17 enforcement authorities, seek civil remedies and drag Respect Arizona through costly and time18 consuming discovery. 19 5. On or about April 9, 2013 Klayman, who on information and belief is not licensed

20 to practice law in Arizona, and Arizona attorney David Burnell Smith served on Respect Arizona 21 the within Summons and the within Complaint on behalf of Wise, Lichter and CPFER. 22 6. The effect of Klaymans letter, his lawsuit threats, the attendant media coverage and

23 Klaymans actual filing (with local counsel) of the instant case have had real and palpable effects 24 on Respect Arizonas campaign to collect signatures for the recall of sheriff Joe Arpaio. 25 According to the Arizona Corporation Commission, CPFERs managers / members are 26 plaintiffs Jeff Lichter and James D. Wise, both of Surprise, Arizona. See 27 http://starpas.azcc.gov/scripts/cgiip.exe/WService=wsbroker1/names-detail.p?nameid=L18229023&type=L.L.C. 28 DECLARATION OF LILIA ALVAREZ Page 1 of 3
1

7.

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

2 called into question in the publics mind the legal validity of the recall election. For example, 3 numerous articles regarding the lawsuit have been published, creating doubt in the publics and 4 supporters minds as to whether Respect Arizonas recall effort is legally valid or, because of legal 5 questions that have been raised by plaintiffs frivolous lawsuit, whether Respect Arizona will be 6 able to gather enough signatures to place the recall election on the ballot. Examples of the media 7 coverage include: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DECLARATION OF LILIA ALVAREZ

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-ofArpaio-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-lawsuithalt-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/groupplans-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-tostop-Sheriff-Arpaio-recall e. Alice Kleinpeter, Arpaio recall group threatened with lawsuit by sheriffs backers, CRONKITENEWSONLINE, March 25, 2013, http://cronkitenewsonline.com/2013/03/arpaio-recall-group-threatened-withlawsuit-by-sheriffs-backers/

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