Magistrate Judge Neureiter Sanctions Colorado Lawyers for Frivolous Election Challenge

Alfred A. Arraj U.S. Courthouse.
Two Colorado lawyers were sanctioned for their role in voting machine lawsuits. / Photo courtesy the Alfred A. Arraj U.S. Courthouse.

A federal magistrate in Denver sanctioned two Colorado lawyers for filing a lawsuit that named Colorado-based Dominion Voting Systems, Inc. and an array of prominent defendants, including state officials from around the nation, and that sought billions of dollars in damages for an allegedly stolen 2020 election.

The Aug. 3 ruling by Magistrate Judge Reid Neureiter of the U.S. District Court for the District of Colorado is the first in the nation to impose financial penalties on lawyers who filed frivolous challenges to last year’s presidential contest and follows the dismissal of that complaint in April.

​​”This lawsuit was filed with a woeful lack of investigation into the law and (under the circumstances) the facts,” Neureiter wrote. “The lawsuit put into or repeated into the public record highly inflammatory and damaging allegations that could have put individuals’ safety in danger. Doing so without a valid legal basis or serious independent personal investigation into the facts was the height of recklessness.”

The two lawyers – Gary Fielder, who has an office in Arvada, and Ernest Walker, who practices both in the Centennial State and in Michigan – did not collaborate with former President Donald Trump’s legal team.

Fielder and Walker’s Dec. 22 complaint, as the two lawyers later proposed to amend it, was styled as a class action lawsuit “brought on behalf of all American registered voters,” according to Neureiter’s sanctions order. The two lawyers alleged that the voters “constitutional right to vote for President” was violated and included allegations that the 18 named defendants and as many as 10,000 John Doe defendants breached the Electors, Due Process and Equal Protection clauses of the Constitution and the First Amendment. 

Among the named defendants were Georgia Gov. Brian Kemp and Secretary of State Brad Raffensperger, Michigan Gov. Gretchen Whitmer and Secretary of State Jocelyn Benson, Pennsylvania Gov. Tom Wolf and Secretary of State Kathy Boockvar, and Wisconsin Gov. Tony Evers and the members of that state’s Elections Commission.

Other defendants identified in the complaint included Facebook, its founder, Mark Zuckerberg and his wife, Priscilla Chan, and the Center for Tech and Civic Life, a Chicago non-profit organization.

Seven individuals constituted the named plaintiffs. They alleged that the defendants “engaged in concerted action to interfere with the 2020 presidential election through a coordinated effort to, among other things, change voting laws without legislative approval, use unreliable voting machines, alter votes through an illegitimate adjudication process, provide illegal methods of voting, count illegal votes, suppress the speech of opposing voices, disproportionally and privately fund only certain municipalities and counties, and other methods, all prohibited by the Constitution.” 

“The Complaint is one enormous conspiracy theory,” Neureiter wrote in his sanctions order. “So, this was not a normal case in any sense. Plaintiffs purported to represent 160 million American registered voters and came seeking a determination from a federal court in Colorado that the actions of multiple state legislatures, municipalities, and state courts in the conduct of the 2020 election should be declared legal nullities.”

As for the relief sought by Fielder and Walker, Neureiter described it as likely involving an amount “greater than any money damage award in American history.” “Seeking a ‘nominal amount of $1,000 per registered voter,’ Plaintiffs asked for a total $160 billion for the putative 160-million-person Plaintiff class,” he continued.

Neureiter wrote that “the effect of the allegations and relief sought would be to sow doubt over the legitimacy of the Biden presidency and the mechanisms of American democracy (the actual systems of voting) in numerous states.” “In short,” the magistrate continued, “this was no slip-and-fall at the local grocery store. Albeit disorganized and fantastical, the Complaint’s allegations are extraordinarily serious and, if accepted as true by large numbers of people, are the stuff of which violent insurrections are made.”

Evidence lodged with the complaint in the form of affidavits did not persuade Neureiter of the facial plausibility of the case. “The affidavits are notable only in demonstrating no firsthand knowledge by any Plaintiff of any election fraud, misconduct, or malfeasance,” he wrote. “Instead, Plaintiffs’ affidavits are replete with conclusory statements about what must have happened during the election and Plaintiffs’ ‘beliefs’  that the election was corrupted, presumably based on rumors, innuendo and unverified and questionable media reports.”

In March, Fielder and Walker asked the court to allow them to amend the complaint by naming at least 150 additional plaintiffs and a Racketeer Influenced and Corrupt Organizations Act claim, said Neureiter in the Aug. 3 order. That request was not granted. “The proposed Amended Complaint doubled down in making inflammatory accusations about the allegedly nefarious motives and intentions of the Defendants,” Neureiter wrote in his sanctions order.

One basis for dismissing the case was that the plaintiffs lacked standing, a requirement of federal court jurisdiction. Neureiter criticized Fielder and Walker for failing to make a reasonable legal argument in support of standing. “Plaintiffs’ effort to distinguish this case from what I referred to as a ‘veritable tsunami’ of adverse precedent was not just unpersuasive but crossed the border into the frivolous,” he said. 

The court also concluded, when it dismissed the lawsuit, that it lacked personal jurisdiction over numerous defendants, including the officials of other states. Neureiter essentially accused Fielder and Walker of incompetence in failing to recognize the problem. “It should have been as obvious to Plaintiffs’ counsel as it would be to a first-year civil procedure student that there was no legal or factual basis to assert personal jurisdiction in Colorado for actions taken by sister states’ governors, secretaries of state or other election officials in those officials’ home states,” he wrote.

Neureiter said that Fielder and Walker could have waited for more clarity about the election results before filing the lawsuit. “There was no reason why Plaintiffs could not have waited for the completion of some of the state recounts and state-run investigations into alleged allegations of election-rigging,” Neureiter said. The two Colorado lawyers should also have understood the “importance of conducting extensive, objective, and independent due diligence before filing” the case.

The Denver magistrate took particular note of the lack of client pressure to pursue the lawsuit. “It must also be noted that this was not a client-driven lawsuit,” he said. “Lawyers who conceive of a lawsuit seeking $160 billion dollars, making allegations questioning the validity of a Presidential election and the fairness of the basic mechanisms of American democracy, must conduct extensive independent research and investigation into the validity of the claims before filing suit.”

Neureiter extensively discussed reasons why such research would have shown the lawsuit to be infeasible. He cited the dozens of lawsuits filed by Trump and his allies in courts around the nation that were dismissed by state and federal judges in the months after the November election. 

Neureiter awarded sanctions in an amount yet to be determined under the authority of a federal statute, a federal rule of civil procedure and the court’s “ability to fashion an appropriate sanction for conduct which abuses the judicial process.” 

The case is O’Rourke v. Dominion Voting Systems, Inc., No. 20-cv-03747-NRN.


Previous articleIn First Year of Colorado Red Flag Law, AG’s Office Reveals Misuse was Rare
Next articleEffort to Remove Prosecution Power from Military Commanders Gains Congressional Momentum


Please enter your comment!
Please enter your name here