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.

.


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

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commentary and current events

On Forgiveness

While leafing through one of my old journals yesterday, I came upon a note from my past self: “Maybe forgiveness is learning to live with an unaddressed wrong.”

This description of forgiveness struck me as particularly important in our current political climate.

When I defined forgiveness as “learning to live with an unaddressed wrong,” I was thinking about a situation in which I both felt I had been wronged and knew that the chances of the person who committed the wrong actually making it right were slim to none. I realized that my emotional equilibrium could not depend on the other person apologizing, providing redress, or changing their behavior to prevent the commission of the same wrong again in the future (against me or anyone else). Because those weren’t gonna happen. If I were to find any peace of mind after having been wronged, I had to find it myself.

I had to let go of what I didn’t control: The other person’s behavior. Instead I had to focus on what I did control: Living my own life from this point forward.

Before I defined forgiveness for myself as “learning to live with an unaddressed wrong,” I’d spent years needing the person who wronged me to apologize, make amends, and change their behavior. When I accepted that the apology or amends or change would never come, however, I freed myself to start deciding what I was going to do about this unaddressed wrong. I didn’t need to “let go” or “pretend it never happened.” Instead, I could treat that wrong for exactly what it was – harm done to me, without any attempts to make it right – and respond in ways that protected me. I couldn’t make that wrong right, but I could respect my own understanding of the harm caused.

Almost immediately after armed insurrectionists stormed the US Capitol in an attempt to force Congress and the Vice President to violate the Twelfth Amendment and illegally certify the 2020 election results for one Donald J. Trump, Republicans started calling for “unity.”

I wouldn’t describe the call for “unity” as a call for forgiveness, exactly. When someone asks for “forgiveness,” they’re usually acknowledging, if only tacitly, that they committed a wrong.

Calls for “unity,” on the other hand, aren’t admitting to a wrong. In fact, the most strident of them insist that no wrong was committed at all: They’re proud they stormed the Capitol to demand a lawful election result be unlawfully overturned, and given the chance, they’d do it again.

“Unity!” may not be a demand for forgiveness, but it’s a loud and clear signal that the perpetrators of the wrong will not address it. The rest of us have to learn to live with this unaddressed wrong.

The good news is that “learn to live with” doesn’t have to mean “resign ourselves to.” It can also mean “address the wrong ourselves, as far as we are able.” Specifically, post-January 6, addressing the unaddressed wrong may mean that we proceed in a way that protects us and the nation from people we know would happily harm us again.

Defining “learning to live with” to include “addressing the wrong myself as far as I can” was also freeing for me, personally. If I know the wrong hasn’t been and isn’t likely to be addressed, then the work required to protect myself is on me. I don’t have to wait for the wrongdoer to make it right. I can do what I need to do to avoid being harmed again.

Because our national wrongdoers are obviously unrepentant, learning to live with them – safely, healthily – means kicking them out of any space where they might be able to commit similar harms.

Kick out the members of Congress who encouraged the events of January 6. Kick out the ones who voted against impeachment of a President who incited an armed insurrection against the United States Capitol. Convict him of high crimes and misdemeanors, so that he can never again hold any kind of public office. Refuse to do business with him, so he can’t screw you over the way he’s so gleefully screwed over so many others. Put the country back on a track that protects it from similar wrongs, so that it can flourish.

That’s how we find peace of mind. That’s how we live with the unaddressed wrong that is insurrection. That’s what forgiveness for January 6 looks like.


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commentary and current events, neurodivergence

Inauguration Day 2021: Looking Back, Looking Forward

Four years ago today, I studiously avoided watching the inauguration. Instead, I wrote the introduction to Spoon Knife 2: Test Chamber, a volume that seemed even more vital then than it had when AutPress released its call for submissions ten months earlier.

Four years later, I still find the Spoon Knife 2 intro meaningful. Here it is, reprinted in full, for another inauguration day – and the entrance into another test chamber.

National Day of Testing: An Introduction

“You know what my days used to be like? I just tested. Nobody murdered me, or put me in a potato, or fed me to birds. I had a pretty good life. And then you showed up.” – GLaDOS, Portal 2

My debut piece in The Spoon Knife Anthology relied heavily on the mythology of Portal, a video game in which the player-protagonist navigates a series of nineteen test chambers, accompanied by promises of cake and increasingly sinister commentary from a sentient supercomputer named GLaDOS. As the player progresses, completing each chamber becomes increasingly difficult. Breaking out of them altogether becomes unavoidable.

Portal is primarily a puzzle game. The same test chambers that trap the player-protagonist and obscure the final goal also provide both the tools of escape and the necessary practice in how to use them. The moment of escape is devilishly simple but requires quick thinking; the game’s ending implies exactly how far one can test the chamber.

For several months after submitting my first Spoon Knife piece, the concept of the “test chamber” intrigued me. “My Mother, GLaDOS” was my first tangible test (of the) chamber, the first time I’d committed some of the rawest and most gaslit parts of my childhood to print and the first time, outside the safety of my therapist’s office, that I had ever criticized the malignant programming that tested me. I played with the concept of the “test chamber” for several months before generating the Call for Submissions that produced responses in the form of the poetry, fiction, and memoir that appear here.

The writers (and editors and publishers) of the book you now hold in your hands all have this in common: we all diverge in some way(s) from the normative, the expected, the acceptable. We’ve all been pathologized, scrutinized, corrected – often, in horrible ways.

As I write this, the United States finds itself in a new test chamber, one whose outputs will inevitably affect the rest of the world. Those of us who find ourselves already marginalized, like the authors represented here, will suffer first, but we will not suffer alone. All of us need the tools of defiance and resistance.

The Spoon Knife Anthology gives its readers the chance to name demands for compliance when we see them, and to try on the means of defiance and resistance. In Spoon Knife 2: Test Chamber, we explore what happens when those tools – and others – are applied to a particular purpose or demand. We test the chamber in which we find ourselves, and in so doing, we find the power to subvert it.

Dani Alexis Ryskamp
January 20, 2017


For more literature on compliance, defiance, and resistance, visit autpress.com.

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