King v. Whitmer
CIVIL 20-13134 (E.D. Mich. Aug. 25, 2021)
66 Plaintiffs' attorneys argue that “[t]he court
never held an evidentiary hearing in
Costantino and, as a result, did not
properly assess the merits of the action”
and “[t]his was one of the reasons why
the[y] presented affidavits from that action
in this case.” (ECF No. 161 at Pg ID 5816
n.10.)
The
point,
however,
is
that
presenting those affidavits required counsel
to first conduct a reasonable inquiry into
the factual allegations contained therein.
In their supplemental brief in support of their
motion for sanctions, the State Defendants
contend that Plaintiffs' counsel failed to engage in
the requisite prefiling inquiry, pointing to several
statements Powell made in an election-related
defamation case, which is based in part on
allegations made in the instant lawsuit. (See ECF
No. 118-2 at Pg ID 4806.) In a motion to dismiss
filed in that case, Powell argued that, even if the
plaintiffs “attempt[] to impugn the various
declarations as unreliable[] [or] attack the veracity
or reliability of the various declarants, ”
“[l]awyers involved in fast-moving litigation
concerning matters of transcendent public
importance, who rely on sworn declarations, are
entitled to no less protection” than “[j]ournalists
[who] usually repeat statements from sources
(usually unsworn, often anonymous) on whom
they rely for their stories, and sometimes those
statements turn out not to be true.” (Id. at PDF Pg
66-67.) “Journalists”-like attorneys, Powell
argued-“must be free to rely on sources they deem
to be credible, without being second-guessed by
irate public figures who believe that the journalists
should have been more skeptical.” (Id. at PDF Pg
67.)
In response to the State Defendants' supplemental
brief, instead of explaining what efforts they
undertook to investigate the veracity of the
affidavits, Plaintiffs' attorneys argue that they
“never stated that lawyers cannot be held to
account.” (ECF No. 120 at Pg ID 5004.) “Instead,
” they argue, the motion to dismiss “justifies
lawyers being afforded the same type of
Constitutional protections as journalists, ” “who . .
. would lose the protection afforded to them by the
Supreme Court . . . if they were ‘drawn into long
court battles designed to deconstruct the accuracy
of sources on which they rely.'” (Id. at ¶ 5004-05
(quoting ECF 118-2 at PDF Pg 66-67).)
Attorneys are not journalists. It therefore comes as
no surprise that Plaintiffs' attorneys fail to cite a
single case suggesting that the two professions
share comparable duties and responsibilities.
Perhaps this confused understanding as to the job
of an attorney, and what the law says about the
attendant duties and obligations, is what led
Plaintiffs' counsel to simply copy and paste
affidavits from prior lawsuits. Perhaps not. But
what is certain is that Plaintiffs' counsel will not
escape accountability for their failure to conduct
due diligence before recycling affidavits from
other cases to support their pleadings here.
e) Counsel's failure to inquire into Ramsland's
outlandish and easily debunked numbers
Plaintiffs' counsel attached Ramsland's affidavit to
their pleadings to support the assertion that
hundreds of thousands of illegal votes were
injected into Michigan's election for President.
(See ECF No. 6-24.) In his affidavit, Ramsland
refers to several statistical “red flag[s], ”
including: (i) reports of 6, 000 votes in Antrim
County being switched from Former President
Trump to President Biden and (ii) 643 precincts in
Michigan with voter turn-out exceeding 80% (e.g.,
460.51% in Zeeland Charter Township, 215.21%
in Grout Township, Gladwin County, and
139.29% in Detroit). (Id. at Pg ID 1573-74 ¶¶ 10,
11.)
However, the State issued a bulletin well before
this lawsuit was filed explaining the user error that
led to the miscount in Antrim County's unofficial
results, which had been “quickly identified and
corrected.” (ECF No. 39-12.) And official election
results for Michigan-reporting voter turnout rates
vastly lower than the numbers in Ramsland's
affidavit-were published and readily available
35
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