King v. Whitmer
CIVIL 20-13134 (E.D. Mich. Aug. 25, 2021)
Rapids Mall Assoc., 98 F.3d at 929 (recognizing
that an evidentiary hearing is “not necessarily
required where the court has full knowledge of the
facts and is familiar with the conduct of the
attorneys”). Ultimately, when a court intends to
invoke its inherent authority, “[a]t the very least,
responsive briefing . . . [can] provide[] the
procedural safeguards necessary.” KCI USA, Inc.
v. Healthcare Essentials, Inc., 797 Fed.Appx.
1002, 1007 (6th Cir. 2020); see also Red Carpet
Studios, 465 F.3d at 647 (finding that the court
provided due process when sanctioning via its
inherent authority where sanctioned party “argued
his case in writing and at a hearing, and [] makes
no argument why the notice and the hearing he
received were inadequate”).
Plaintiffs' lawyers have been afforded due process
here. Through the multiple motions for sanctions
and related briefs and during the July 12 motion
hearing, they received notice of: (i) who sanctions
were being sought against; (ii) the reasons why;
(iii) the authority pursuant to which sanctions
were requested; and (iv) the types of sanctions
requested. Counsel were provided the opportunity
to answer the sanctions allegations in responsive
briefs, orally at the six-hour hearing, and in
supplemental briefing. To the extent the Court
questioned Plaintiffs' counsel about materials
attached to their pleadings which had not been
specifically addressed in the movants' briefs,
counsel had an opportunity to respond to those
concerns in their supplemental briefs-and counsel
took advantage of that opportunity. (See, e.g., ECF
No. 161 at Pg ID 5815-19; ECF No. 165 at Pg ID
6578-80; ECF No. 167 at Pg ID 6682-84, 6684
n.3).
IV. Discussion 26
26 At last, this opinion arrives at the issue of
whether Plaintiffs' attorneys should be
sanctioned. The Court is aware of how
long it took to get here. But addressing
Plaintiffs' counsel's arguments concerning
the Court's ability to impose sanctions was
first required, and-as noted previouslythose arguments shifted and multiplied
with each new brief they filed.
A. Whether Plaintiffs' Counsel Violated 28
U.S.C. § 1927
The Court first considers whether Plaintiffs'
counsel unreasonably and vexatiously multiplied
proceedings by failing to dismiss this case when
even they acknowledged it became moot. Ridder,
109 F.3d at 298 (quoting 28 U.S.C. § 1927).
Plaintiffs expressly acknowledged in their petition
for writ of certiorari to the Supreme Court that
“[o]nce the electoral votes are cast, subsequent
relief would be pointless, ” and “the petition
would be moot.” (ECF No. 105 at Pg ID 4362
(citing ECF No. 105-2 at Pg ID 4401, 4409).)
Michigan's electors cast their votes on December
14. “Yet, that date came and went with no
acknowledgement by Plaintiffs and their counsel
to Defendants or this Court, ” the State Defendants
argue, forcing the State Defendants and
Intervenor-Defendants to file motions to dismiss
on December 22. (Id. (citing ECF No. 70); see
also ECF Nos. 72, 73.)
During the July 12 motion hearing, Campbell
contended that-over the course of the
litigation-“things change[d].” (ECF No. 157 at Pg
ID 5345.) He explained, when this case was filed
on November 25, counsel “thought honestly and
truly that the drop-dead date was December 8th,
and that's what [they] said to this Court.” (Id. at Pg
ID 5346.) Later, “a judge in Wisconsin said, ”
according to Campbell, “Well, why are you guys
all hurrying for December 8th. It should be
December 14th.” (Id.) Campbell continued,
because “[s]omebody else came along and said,
‘Why not December 14th?' . . . [counsel] didn't
argue with that” and gave the United States
Supreme Court that date as the one upon which
the case becomes moot. (Id.) And on December
14, “three [] [] Plaintiffs were, in their opinion,
properly elected as electors” and, Campbell
20
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