On August 25, 2021, U.S. District Judge (E.D. Michigan) Linda V. Parker issued a 110-page Opinion and Order sanctioning 9 attorneys for the filing and maintaining of another failed election fraud lawsuit. A copy of the entire Opinion and Order can be found below.
The opening paragraph of the Opinion and Order reads as follows:
“This lawsuit represents a historic and profound abuse of the judicial process. It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here.”
Of particular note, the Opinion and Order provides:
- “The attorneys who filed the instant lawsuit abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought.”
- “And this case was never about fraud—it was about undermining the People’s faith in our democracy and debasing the judicial process to do so.”
- “And despite the haze of confusion, commotion, and chaos counsel intentionally attempted to create by filing this lawsuit, one thing is perfectly clear: Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way. As such, the Court is duty-bound to grant the motions for sanctions filed by Defendants and Intervenor-Defendants and is imposing sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and its own inherent authority.”
- With respect to 28 U.S.C. § 1927, the Court found “that Plaintiffs’ counsel unreasonably and vexatiously multiplied the proceedings in this case and their arguments to the contrary are unavailing.”
- With respect to Rule 11, the Court found, among other things, that:
- “Plaintiffs’ counsel acted with an improper purpose when affirmatively labeling as an “illegal vote dump” the 100,000 ballots discussed on the news, despite failing to inquire as to the gaps that established the relevant affidavit as nothing more than conjecture.”
- “Second, there is a basis to conclude that Plaintiffs’ legal team asserted the allegations in their pleadings as opinion rather than fact, with the purpose of furthering counsel’s political positions rather than pursuing any attainable legal relief.”
- “It is not acceptable to support a lawsuit with opinions, which counsel herself claims no reasonable person would accept as fact and which were ‘inexact,’ ‘exaggerate[ed],’ and ‘hyperbole.’ Nor is it acceptable to use the federal judiciary as a political forum to satisfy one’s political agenda. Such behavior by an attorney in a court of law has consequences.” “An attorney’s right to free speech while litigating an action “is extremely circumscribed.”
- “[t]he Court finds an improper purpose because Plaintiffs’ counsel failed to conduct the pre-filing reasonable inquiry required of them as officers of the court, despite most of the attorneys acknowledging that ‘no one is immune to confirmation bias’ and, therefore, ‘attorneys should look beyond their prejudices and political beliefs, and view evidence with a level of professional skepticism.'”
- “Counsel’s failure to “look beyond their prejudices and political beliefs” during this litigation and before filing this lawsuit strongly suggests improper motive. The evidence of bad faith and improper motive becomes undeniably clear when paired with the fact that Plaintiffs’ counsel violated Rule 11 in a multitude of ways.”
- “[C]ircumstances suggest that this lawsuit was not about vindicating rights in the wake of alleged election fraud. Instead, it was about ensuring that a preferred political candidate remained in the presidential seat despite the decision of the nation’s voters to unseat him.”
- “Plaintiffs’ counsel’s decision to not make clear ‘the full story’ about Merritt not completing military intelligence training was for the improper purpose of bolstering their star witness’ expertise and misleading the Court, opposing counsel, and the world into believing that Merritt was something that he was not.”
- “In sum, each of the six matters discussed above individually evince bad faith and improper purpose. But when viewed collectively, they reveal an even more powerful truth: Once it appeared that their preferred political candidate’s grasp on the presidency was slipping away, Plaintiffs’ counsel helped mold the predetermined narrative about election fraud by lodging this federal lawsuit based on evidence that they actively refused to investigate or question with the requisite level of professional skepticism—and this refusal was to ensure that the evidence conformed with the predetermined narrative (a narrative that has had dangerous and violent consequences). Plaintiffs’ counsel’s politically motivated accusations, allegations, and gamesmanship may be protected by the First Amendment when posted on Twitter, shared on Telegram, or repeated on television. The nation’s courts, however, are reserved for hearing legitimate causes of action.”
- With respect to the Court’s inherent authority to award fees, the Order and Opinion provided that: “Plaintiffs’ counsel advanced claims that were not well-grounded in the law, as demonstrated by their (i) presentment of claims not warranted by existing law or a nonfrivolous argument for extending, modifying, or reversing the law; (ii) assertion that acts or events violated Michigan election law, when the acts and events (even if they occurred) did not; and (iii) failure to inquire into the requirements of Michigan election law. Plaintiffs’ counsel advanced claims that were also not well-grounded in fact, as demonstrated by their (i) failure to present any evidentiary support for factual assertions; (ii) presentment of conjecture and speculation as evidentiary support for factual assertions; (iii) failure to inquire into the evidentiary support for factual assertions; (iv) failure to inquire into evidentiary support taken from other lawsuits; and (v) failure to inquire into Ramsland’s outlandish and easily debunked numbers. And, for the reasons discussed above, Plaintiffs’ counsel knew or should have known that these claims and legal contentions were not well-grounded in law or fact. Moreover, for the reasons also discussed above, the Court finds that Plaintiffs and their counsel filed this lawsuit for improper purposes. Accordingly, sanctions also are warranted pursuant to the Court’s inherent authority.”
The Court concluded that “Plaintiffs’ counsel filed this lawsuit in bad faith and for an improper purpose. Further, they presented pleadings that (i) were not ‘warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law’ and (ii) contained factual contentions lacking evidentiary support or likely to have evidentiary support. Finally, by failing to voluntarily dismiss this lawsuit on the date Plaintiffs’ counsel acknowledged it would be moot and thereby necessitating the filing of motions to dismiss, Plaintiffs’ attorneys unreasonably and vexatiously multiplied the proceedings. For these reasons (and not for any conduct that occurred on appeal), the Court holds that sanctions against Plaintiffs’ counsel are warranted under Rule 11, § 1927, and the Court’s inherent authority. Sanctions are required to deter the filing of future frivolous lawsuits designed primarily to spread the narrative that our election processes are rigged and our democratic institutions cannot be trusted. Notably, many people have latched on to this narrative, citing as proof counsel’s submissions in this case. The narrative may have originated or been repeated by Former President Trump and it may be one that ‘many Americans’ share; however, that neither renders it true nor justifies counsel’s exploitation of the courts to further spread it.”
As for the sanctions imposed, the Court held “This lawsuit should never have been filed. The State Defendants and the Intervenor-Defendants should never have had to defend it. If Plaintiffs’ attorneys are not ordered to reimburse the State Defendants and the City for the reasonable fees and costs incurred to defend this action, counsel will not be deterred from continuing to abuse the judicial system to publicize their narrative. Moreover, this Court has found that Plaintiffs’ counsel initiated this litigation for an improper purpose, rendering this the ‘unusual circumstance’ in which awarding attorneys’ fees is warranted. Further, given the deficiencies in the pleadings, which claim violations of Michigan election law without a thorough understanding of what the law requires, and the number of failed election-challenge lawsuits that Plaintiffs’ attorneys have filed, the Court concludes that the sanctions imposed should include mandatory continuing legal education in the subjects of pleading standards and election law. Lastly, the conduct of Plaintiffs’ counsel, which also constituted violations of the Michigan Rules of Professional Conduct, see, e.g., MRPC 3.1 and 3.3, calls into question their fitness to practice law. This warrants a referral for investigation and possible suspension or disbarment to the appropriate disciplinary authority for every state bar and federal court in which each attorney is admitted, see Fed. R. Civ. P. 11 Advisory Committee Notes (1993 Amendment) (explaining that such referrals are available as a sanction for violating the rule); E.D. Mich. LR 83.22(c)(2).”
The Court Ordered that:
- The motions for sanctions filed by the State Defendants and the City of Detroit are GRANTED. The Davis motion for sanctions was granted in part and denied in part – granting sanctions but not an award of fees.
- The Plaintiffs’ attorneys shall pay the fees and costs incurred by the State Defendants and the City of Detroit to defend this action.
- The Plaintiffs’ attorneys shall each complete at least 12 hours of continuing legal education in the subjects of pleading standards and election law within 6 months.
- “[t]he Clerk of the Court shall send a copy of this decision to the Michigan Attorney Grievance Commission and the appropriate disciplinary authority for the jurisdiction(s) where each attorney is admitted, referring the matter for investigation and possible suspension or disbarment: (i) Sidney Powell – Texas; (ii) L. Lin Wood – Georgia; (iii) Emily Newman – Virginia; (iv) Julia Z. Haller – the District of Columbia, Maryland, New York and New Jersey; (v) Brandon Johnson – the District of Columbia, New York, and Nevada; (vi) Scott Hagerstrom – Michigan; (vii) Howard Kleinhendler – New York and New Jersey; (viii) Gregory Rohl – Michigan; and (iv) Stefanie Lynn Junttila – Michigan.”