King v. Whitmer
CIVIL 20-13134 (E.D. Mich. Aug. 25, 2021)
On December 7, the Court issued an opinion and
order denying Plaintiffs' motion and thereby
declining to grant Plaintiffs the relief they wanted,
which the Court noted was “stunning in its scope
and breathtaking in its reach” as it sought to
“disenfranchise the votes of the more than 5.5
million Michigan citizens who . . . participat[ed]
in the 2020 General Election.” (ECF No. 62 at Pg
ID 3296.) The Court concluded that Plaintiffs'
lawsuit was subject to dismissal based on any one
of several legal theories: (i) their claims were
barred by Eleventh Amendment immunity; (ii)
their claims were barred under the doctrine of
laches; (iii) they lacked standing; (iv) their claims
were moot; and (v) abstention was appropriate
under the doctrine set forth in Colorado River
Water Conservation District v. United States, 424
U.S. 800 (1976). (Id. at Pg ID 3301-24.) But the
Court also concluded that Plaintiffs were not
likely to succeed on the merits of their claims. (Id.
at Pg ID 3324-28.)
As to Plaintiffs' claim that Defendants violated the
Elections and Electors Clauses by deviating from
the requirements of the Michigan Election Code,
the Court pointed out that Plaintiffs failed to
“explain how or why such violations of state
election procedures automatically amount to
violations of the clauses” (id. at Pg ID 3324), and
case law did not support Plaintiffs' attempt to
expand the Constitution that far (id. at Pg ID
3325). Thus, the Court found, Plaintiffs' Elections
and Electors Clauses claim was “in fact [a] state
law claim[] disguised as [a] federal claim.” (Id. at
Pg. ID 3324.) With respect to Plaintiffs' attempt to
establish an equal protection claim based on the
theory that Defendants engaged in tactics to,
among other things, switch votes for Former
President Trump to votes for President Biden, the
Court found the allegations to be based on nothing
more than belief, conjecture, and speculation
rather than fact. (Id. at Pg ID 3326-28.) As to the
due process claim, the Court noted that Plaintiffs
abandoned it. (Id. at Pg ID 3317 n.5.)
The day after the Court issued its decision,
attorney Stefanie Lynn Junttila entered her
appearance in this matter (ECF No. 63) and filed a
Notice of Appeal to the “Federal Circuit” on
behalf of Plaintiffs (ECF No. 64). The notice was
updated on December 10 to reflect the proper
appellate court (namely, the Sixth Circuit Court of
Appeals). On December 11, 2020, Sidney Powell,
Stefanie Lynn Junttila, and Howard Kleinhendler
filed a petition for writ of certiorari in the United
States Supreme Court. (See ECF No. 68.) In the
petition, when urging immediate Supreme Court
review, Plaintiffs wrote: “Once the electoral votes
are cast [on December 14, 2020] subsequent relief
would be pointless.” (ECF No. 105-2 at Pg ID
4401.)
On December 15, 2020, the City served a letter
(“Safe Harbor Letter”) and motion (“Safe Harbor
Motion”) on Plaintiffs' attorneys, threatening
sanctions pursuant to Rule 11 of the Federal Rules
of Civil Procedure. (ECF No. 161-3; see also ECF
No. 95 at Pg ID 4118-19 (acknowledging service
of the motion).) Specifically, counsel for the City
sent the Safe Harbor Letter and Safe Harbor
Motion via electronic mail and first-class mail to
Sidney Powell, Gregory Rohl, Stefanie Lynn
Junttila, Scott Hagerstrom, L. Lin Wood, and
Howard Kleinhendler. (ECF No. 161-3 at Pg ID
6058-67.)
In the meantime, the Supreme Court did not rule
on Plaintiffs' petition for writ of certiorari by
December 14.6 On December 22, Davis filed a
motion seeking sanctions against Plaintiffs and
their counsel pursuant to the Court's inherent
authority and 28 U.S.C. § 1927. (ECF No. 69.) On
the same day, motions to dismiss were filed by
Defendants (ECF No. 70), the DNC/MDP (ECF
No. 72), and the City (ECF No. 73). The City's
motion to dismiss included four paragraphs
discussing why Plaintiffs and Plaintiffs' counsel
should be sanctioned pursuant to § 1927.7 (Id. at
Pg ID 3576-78.) And all three motions to dismiss
reflected that concurrence had been sought, but
not obtained, from Plaintiffs' counsel. (See ECF
4