commentary and current events

I Read King v. Whitmer and…Yikes

I’m reading the opinion in King v. Whitmer, and it’s a ride. If I’d been assigned this in law school, I would have refused to believe it was a real case.

Some of my favorite parts so far:

Image: blog post title and URL over notebook and textbook.

“Plaintiffs’ lawyers argue that no attorney can be sanctioned whose name appeared only in typewritten form.”

This is some sovereign citizen nonsense flavored horse paste, right here. Can they also not be sanctioned because they typed their names in all caps?

(Ask me to yell about the “sovereign citizen” movement sometime if you really want some entertainment.)

L. Lin Wood tries to claim he shouldn’t be sanctioned because he had no idea Sidney Powell put his name on the paperwork until he read about it in the newspaper. Yet “at no time between [January 5] and the July 12 hearing did Wood ever notify the Court that he had been impermissibly included as counsel for Plaintiffs in this action.”

Oh, and Wood tweeted on January 5, the day the motion for sanctions was filed, that it was unfair the City of Detroit was seeking sanctions against him. Fastest paper ever.

“[T]he Court finds it exceedingly difficult to believe that Rohl read an 830-page complaint in just “well over an hour” on the day he filed it.”

Even if Rohl is some kind of badass speed reader, the Court concludes, reading 830 pages the day of filing is not making a “reasonable inquiry” into the contents of what you’re filing. Especially when there are 830 pages of them.

(Would that we could get this kind of reasoning on 28 U.S.C. 2254(d)(1) IAC claims, but I digress.)

Heads up: Only spending “five hours” on a matter while working from home, or doing nothing at all but letting someone else put your name on a filing because they need someone with a Michigan law license and a pulse, won’t get you out of being sanctioned either, kids.

It’s like every lawyer on this thing thinks the best possible argument against “you filed an utterly frivolous claim” is “I’m too bad at lawyering to know better.”

Variation on a theme: Plaintiffs’ lawyers try various claims that a certain motion (the safe harbor motion) wasn’t sent to them properly – wrong address, wrong ZIP code, and so on. Yet the addresses used were the exact same ones the lawyers listed on their own filings.

“I’m so bad at lawyering I don’t even know my own address” is not the slam dunk these folks seem to think it is.

The test for when a district court can issue sanctions sua sponte is called the “Big Yank” test, after Big Yank Corp. v. Liberty Mut. Fire Ins. Co., 125 F.3d 308 (6th Cir. 1997). I love this.

…Plaintiffs try to argue that Rule 11 prohibits courts from issuing sua sponte sanctions…by citing the part that says courts retain that power under Rule 11 (as long as they issue a show cause order).

YOUR LAWYERING IS BAD AND YOU SHOULD FEEL BAD

“In other words, Plaintiffs’ attorneys maintain that this lawsuit was no longer moot after December 14 because three Plaintiffs subjectively believed that they had become electors. The attorneys cite no authority supporting the notion that an individual’s “[personal] opinion” that he or she is an elector is sufficient to support the legal position that the individual is in fact an elector.”

I’m DYING

brb, going to stop paying taxes and go to space because I now subjectively believe I am a billionaire, and no court can stop me*

“Plaintiffs’ attorneys fail to provide a rational explanation”

This is basically the entire 110 pages.

“The fact that it was never shared suggests that counsel’s argument as to why the case had to be pursued after December 14 is contrived.”

I mean this not as a disparagement of the judge but as a big disparagement of these arguments: I’m beginning to think any parent of teenagers could have decided this case.

“The Court said it before and will say it again: At the inception of this lawsuit, all of Plaintiffs’ claims were barred by the doctrines of mootness, laches, and standing, as well as Eleventh Amendment immunity.”

For the non-lawyers, briefly:

  • Mootness: Whatever your issue was, it’s over in a way that means no court can do anything to fix it. If a court can’t do anything, it’s moot. (There are exceptions “capable of repetition but avoiding review” – pregnancy, for example.)
  • Laches: You waited so long to assert this claim that (even if it was a good claim once) you unfairly screwed over the other party. (And you probably did it on purpose, or at least you could have filed it at a time that did not unfairly screw over the other party.) Laches is a rarer argument than it once was because most equity claims are subject to statutes of limitations.
  • Standing: You’re the wrong person to bring this claim, usually because you’re not the one who has been harmed by whatever you claim the other party did.
  • Eleventh Amendment immunity: States cannot be sued by citizens in federal courts unless the state consents to the federal court’s jurisdiction. (There are tactical reasons a state might consent in some instances.)

I bet the arguments against each of these are hilariously inept.

…And their “strongest” precedent is Bush v. Gore, in which SCOTUS intervened to stop a recount and certify existing results, not to impound voting machines and disenfranchise 5.5 million voters in order to hand the election to someone who lost the count by 150,000 some votes. I’d ask “r u f’in srs rn” but I know the answer.

(That this comes after a lengthy argument from Plaintiffs about how certain other, unfavorable precedent cases are not “on point” because of some random detail in the facts is even more facepalm-y.)

“Plaintiffs’ counsel’s citation to Throckmorton is puzzling, both because the case relates to a nineteenth-century land grant and has nothing to do with election law and because the Supreme Court held that the grant could not be collaterally attacked on the basis that the judgment was procured by fraud.”

I’m actually dead. I have died. Of irony. And death.

Plaintiffs tried to argue that the election results could be challenged here because they’re fraudulent, and of course they are fraudulent because the Plaintiffs yelled it lots of times. But don’t take my word for it:

“Yet counsel’s citation to Throckmorton is enlightening in that it reflects, as the City puts it, “that this suit has been driven by partisan political posturing, entirely disconnected from the law” and “is the dangerous product of an online feedback loop, with these attorneys citing ‘legal precedent’ derived not from a serious analysis of case law, but from the rantings of conspiracy theorists sharing amateur analysis and legal fantasy in their social media echo chambers.”

Apparently no court has accepted these claims so far. That’s a relief.

“Plaintiffs alleged that certain acts or events violated the Michigan Election Code when, in fact, they did not.”

When I worked at the law firm, I often got complaints that had already been marked up by one of the partners – my job, usually, was to draft an answer and/or what we called an “R&R” letter (stood for “review and recommendation”) we’d send to the insurer.

One partner was fond of writing “So?” beside every claim that did not drive toward the plaintiff getting what they wanted. My job was to translate that into a legal argument – but the basis was always So? (To this day, when I listen to any argument, I’m ticking off “So?” points in my head. Good arguments leave no “So?” hanging – great arguments never make a “So?” at all.)

This is the ultimate “So?” claim.

“The Amended Complaint further claims that Michigan election laws were violated because ballots that lacked postmarks were counted. But when the Court asked Plaintiffs’ attorneys whether Michigan absentee ballots must be received through U.S. mail—and therefore postmarked—to be counted, counsel went on about not being able to “rely on the Secretary of State’s guidance.” Noticeably absent from that response, however, was an answer to the Court’s question.”

YEAH, I’LL BET.

(Full disclosure: My 2020 Michigan presidential ballot did not have a postmark, because I shoved it through the slot in the wall at my township clerk’s office expressly marked by three separate signs that it was the absentee ballot dropoff slot.)

“At the July 12 hearing, Kleinhendler told the Court that it was “completely irrelevant” whether the conduct Plaintiffs claimed was violative of Michigan law was actually unlawful.”

i’m sorry what

“This is because, counsel argued, the conduct “raise[d] a suspicion” and what was significant was the mere chance for misfeasance to occur.”

These lawyers are literally advocating that a United Stated federal court acknowledge thoughtcrime.

I don’t often say a fellow attorney should be disbarred, but these attorneys should be disbarred. This is a disgrace to the nation, not merely the profession.

“Plaintiffs alleged that certain acts or events constituted violations of the Michigan Election Code when, in fact, Plaintiffs’ counsel failed to make any inquiry into whether such acts or events were in fact unlawful.”

So my crack up top about 28 USC 2254(d)(1) is a reference to how dastardly hard it is to get a habeas petition granted on the basis of a Sixth Amendment ineffective assistance of counsel claim. Tl;dr you basically have to show your trial lawyer did nothing.

This is the whatever-the-hell-is-going-on-here equivalent of that. “Failed to make any inquiry” is a big statement. Any. Not “sufficient” or “substantive” or “meaningful” or “thorough.” Any.

This isn’t “you didn’t study hard enough for your test.” This is “you skipped all your classes, never opened the textbook, and avoided everyone you knew who was taking or has ever taken that class.”

“The sanctionable conduct is not based on whether the facts described in the Gustafson Affidavit are true or false. What is sanctionable is counsel’s allegation that violations of the Michigan Election Code occurred based on those facts, without bothering to figure out if Michigan law actually prohibited the acts described.”

“You’re not being grounded because your little sister lied to us, dear. You’re being grounded because you repeated that lie without even bothering to find out if it was true or not.”

Plaintiffs, finally, argue they shouldn’t be sanctioned because they were acting in good faith – which I have to admit is a tough sell when most humans acting in good faith at least try to follow rules and find out if rumors are true before repeating them to anyone, especially to a federal court. Of course, the Court here is having none of this either:

“Of course, an “empty-head” but “pure-heart” does not justify lodging patently unsupported factual assertions.”

Wait – we can’t lawyer just by feeling good in our hearts about our clients? What? Oh my gosh, I totally knew that because I went to law school and also passed the MPRE!

“And surely Plaintiffs’ attorneys cannot fail to reasonably inquire into an affiant’s speculative statements and thereafter escape their duty to “stop-and-think” before making factual allegations based on the statements, simply because their expert did the same.”

Wait, we can’t just make shit up because we hired someone to make shit up? Oh my gosh, I totally knew that too because once again, I am a lawyer and also a reasonable adult human who would not have assumed I could lie to a court because it made my heart happy and also I paid another guy to do it!

(N.b. “stop-and-think” is a quote from the commentary on FRCP 11, not the court writing weirdly.)

A few paragraphs later, the court basically says that Plaintiffs’ lawyers would have been lawyering better if they had literally just Googled their expert’s “results.”

“It is not acceptable to support a lawsuit with opinions, which counsel herself claims no reasonable person would accept as fact”

*insert entire Hamilton cast saying ‘DAMN’*

There is of course more, but I’m worn out after so many pages of ineptitude. I’m not sure what any competent lawyer will learn that we didn’t already assume every member of the profession knew, but it’s worth a skim for the popcorn factor, anyway.

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*Full disclosure: I am not actually going to do this, because I am not this bad at lawyering.

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