Timothy King v. Gretchen Whitmer ( 2023 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0134p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
TIMOTHY KING, et al.,
│
Plaintiffs, │
│
L. LIN WOOD (21-1785); GREGORY J. ROHL, BRANDON │ Nos. 21-1785/1786/1787/22-1010
JOHNSON, HOWARD KLEINHENDLER, SIDNEY POWELL, >
│
JULIA HALLER, and SCOTT HAGERSTROM (21-1786); │
EMILY NEWMAN (21-1787); STEFANIE LYNN JUNTTILA │
(22-1010), │
Interested Parties-Appellants, │
│
v. │
│
│
GRETCHEN WHITMER; JOCELYN BENSON; CITY OF │
DETROIT, MICHIGAN, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:20-cv-13134—Linda V. Parker, District Judge.
Argued: December 8, 2022
Decided and Filed: June 23, 2023
Before: BOGGS, KETHLEDGE, and WHITE, Circuit Judges.
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COUNSEL
ARGUED: Paul J. Stablein, PAUL STABLEIN, PLLC, Birmingham, Michigan, for Appellant
in 21-1785. Sidney Powell, Dallas, Texas, in propriā personā and for Appellants in 21-1786.
Timothy E. Galligan, TIMOTHY E. GALLIGAN PLLC, Clarkston, Michigan, for Appellant in
21-1787. Stefanie Lynn Junttila, FEDERAL CRIMINAL ATTORNEYS OF MICHIGAN,
Detroit, Michigan, in propriā personā, in 22-1010. David H. Fink, FINK BRESSACK,
Bloomfield Hills, Michigan, for Appellee City of Detroit. Heather S. Meingast, OFFICE OF
THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees Gretchen
Nos. 21-1785/1786/1787/22-1010 King, et al. v. Whitmer, et al. Page 2
Whitmer and Jocelyn Benson in appeals 21-1786 and 22-1010. ON BRIEF: Paul J. Stablein,
PAUL STABLEIN, PLLC, Birmingham, Michigan, for Appellant in 21-1785. Sidney Powell,
SIDNEY POWELL, PC, Dallas, Texas and Howard Kleinhendler, HOWARD
KLEINHENDLER ESQUIRE, New York, New York, in propriīs personīs and for Appellants in
21-1786. Timothy E. Galligan, TIMOTHY E. GALLIGAN PLLC, Clarkston, Michigan, for
Appellant in 21-1787. Stefanie Lynn Junttila, FEDERAL CRIMINAL ATTORNEYS OF
MICHIGAN, Detroit, Michigan, in propriā personā, in 22-1010. David H. Fink, Nathan J. Fink,
FINK BRESSACK, Bloomfield Hills, Michigan, for Appellee City of Detroit. Heather S.
Meingast, Erik A. Grill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellees Gretchen Whitmer and Jocelyn Benson in appeals 21-1786 and 22-
1010. Paul Orfanedes, JUDICIAL WATCH, INC., Washington, D.C., for Amicus Curiae in
appeal 21-1786.
_________________
OPINION
_________________
KETHLEDGE, Circuit Judge. Three voters and three Republican nominees to the
electoral college in Michigan brought this suit in a bid to overturn the results of the state’s 2020
presidential election. The complaint plausibly alleged that Republican election challengers had
been harassed and mistreated during vote counting at the TCF Center in Detroit, in violation of
Michigan law. But the complaint also alleged that an international “collaboration”—with origins
in Venezuela, extending to China and Iran, and including state actors in Michigan itself—had
succeeded in generating hundreds of thousands of fraudulent votes in Michigan, thereby
swinging the state’s electoral votes to Joseph Biden. Many of those allegations—particularly the
ones concerning Dominion voting machines—were refuted by the plaintiffs’ own exhibits to
their complaint. Other allegations arose from facially unreliable expert reports; still others were
simply baseless. The district court found the entirety of the plaintiffs’ complaint sanctionable,
and ordered all of plaintiffs’ attorneys, jointly and severally, to pay the defendants’ and the City
of Detroit’s reasonable attorney’s fees. We find only part of the complaint sanctionable, and
thus reverse in part and affirm in part.
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I.
A.
On November 3, 2020, Michigan voters cast their ballots in the presidential election. As
soon as the polls closed, teams of state election officials began “canvassing” the results—a
public process in which officials and observers verify that the number of votes cast in each
precinct matches the number of voters listed on the poll lists. See M.C.L § 168.801. This
canvass concluded on November 17. By the next day, every county in Michigan had reported its
official election results to the Secretary of State and the Board of State Canvassers.
Michigan law allows any candidate with a “good-faith belief” that he lost the election due
to “fraud or mistake” to request a recount within 48 hours of the canvass’s conclusion. See
M.C.L § 168.879(1)(b), (c). No candidate did so. As a result, on November 23, the bipartisan
Board of State Canvassers unanimously certified results indicating that Joseph Biden had won
the State of Michigan by 154,188 votes. That same day, Michigan’s Governor transmitted those
results to the United States Archivist. Michigan’s electors for the Democratic Party were
thereafter “considered elected.” M.C.L. § 168.42. That ended the involvement of the Board and
the Governor in the election.
B.
This case began two days later, on November 25, 2020. Plaintiffs sued Governor
Gretchen Whitmer, Secretary of State Jocelyn Benson, and the Board of State Canvassers
(together, the “state defendants”), asserting that they had “fraudulently manipulat[ed] the vote”
through “a wide-ranging interstate—and international—collaboration” to ensure that Biden
would win the election. Compl. ¶1-3. Plaintiffs alleged that unspecified “foreign adversaries”
and “hostile foreign governments” had accessed Dominion voting machines; that Detroit election
officials had participated in countless violations of state election law, including an “illegal vote
dump” of “tens of thousands” of votes; and that expert analysis showed that the election results
were fraudulent. Compl. ¶84, 162, 224. As a result, plaintiffs argued, they were entitled to “the
elimination of the mail ballots from counting in the 2020 election”—meaning all of them—and
an order directing “the electors of the State of Michigan . . . to vote for President Donald
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Trump.” Compl. ¶229-233. Sidney Powell, Scott Hagerstrom, and Gregory Rohl signed this
complaint as the plaintiffs’ attorneys, and five other lawyers—Emily Newman, Julia Haller,
Brandon Johnson, Lin Wood, and Howard Kleinhendler—were listed as “Of Counsel.”
On November 29, plaintiffs filed an emergency motion for injunctive relief, which
repeated the arguments and requests of the complaint. The Democratic National Committee, the
City of Detroit, and Robert Davis (an individual voter with no particular stake in the matter) each
filed motions to intervene as defendants, which the court granted. On December 7, the court
denied plaintiffs’ motion for emergency relief. King v. Whitmer, 505 F. Supp. 3d 720 (E.D.
Mich. 2020).
Plaintiffs thereafter hired a ninth attorney, Stephanie Junttila, to file an appeal with this
court. Meanwhile, Michigan’s electors were set to vote on December 14. Junttila and Powell
filed a petition for certiorari with the Supreme Court, urging immediate intervention—because,
they said, the case would become moot after the December 14 electoral-college vote. But the
Supreme Court did not intervene, and on December 14 Michigan’s electors cast their votes for
Joseph Biden.
C.
On December 15, the City served plaintiffs and their attorneys with a “safe-harbor” letter,
warning that the City would seek sanctions under Civil Rule 11 if plaintiffs did not voluntarily
dismiss their complaint. Plaintiffs’ counsel did not respond. On December 22, the state
defendants e-mailed plaintiffs’ counsel to seek their concurrence in upcoming motions to
dismiss; Junttila responded and declined. That same day, the City, the DNC, and the state
defendants filed separate motions to dismiss, and intervenor Davis filed a motion to sanction
plaintiffs’ counsel under 28 U.S.C. § 1927 and the court’s inherent authority.
On January 5, 2021—three weeks after sending the safe-harbor letter without any
response—the City moved for Rule 11 sanctions against plaintiffs and their attorneys, asking the
court to impose a fine, to require plaintiffs’ counsel to pay defendants’ attorney’s fees, and to
refer them to their respective state bar associations for disciplinary proceedings. The state
defendants joined the City’s motion in full. On January 11 and 12, plaintiffs filed motions to
Nos. 21-1785/1786/1787/22-1010 King, et al. v. Whitmer, et al. Page 5
extend the time to respond to the pending motions to dismiss; the court extended that time until
January 21. On January 14, however, plaintiffs filed a response announcing that they would
voluntarily dismiss the complaint. The state defendants thereafter filed a separate motion for
sanctions under 28 U.S.C. § 1927 against Powell, Junttila, Rohl, and Hagerstrom.
In July 2021, the district court held a lengthy hearing on the sanctions motions, during
which it questioned plaintiffs’ attorneys about the suit. Lin Wood said that, before he heard
about the sanctions hearing, he had no idea his name had been on any filings in the suit. But he
admitted he had offered to help Powell with the lawsuit, and Powell herself said she had
“specifically ask[ed]” Wood for his permission before including his name on the filings. Emily
Newman and Stephanie Junttila, for their parts, each said their involvement in the case was
minimal. The remaining attorneys did not contest their roles in the case. The court also
discussed 15 of the plaintiffs’ affidavits, to determine whether the attorneys had conducted a
prefiling investigation as to the plausibility of their allegations. In response, counsel repeatedly
argued that they could rely on affidavits without conducting any inquiry.
The district court thereafter held that plaintiffs’ counsel had violated Rule 11 by filing
their suit for an improper purpose and by failing to conduct an adequate prefiling inquiry into the
legal and factual merits of their claims. The court further found that counsel had needlessly
prolonged the proceedings, in violation of 28 U.S.C. § 1927, and that counsel had acted in bad
faith, warranting sanctions under the court’s inherent authority. The court therefore ordered all
nine of plaintiffs’ attorneys, jointly and severally, to pay the reasonable legal fees of the City and
the moving state defendants. The court also ordered those attorneys to attend 12 hours of non-
partisan legal education on election law and federal pleading standards, and directed the clerk to
send disciplinary referrals to counsel’s respective bar associations—which the clerk did the next
day. The court denied Davis’s motion for sanctions and declined to impose sanctions on
plaintiffs themselves.
In a separate order, the court considered objections to the amount of the City’s request.
(No attorney had objected to the moving state defendants’ request of $21,964.75.) Of the
$182,192 the City requested, the court awarded $153,285.62.
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These four appeals followed. Lin Wood, Emily Newman, and Stephanie Junttila each
appeal individually, arguing that their involvement in this case was too minimal to warrant
sanctions. Gregory Rohl, Brandon Johnson, Howard Kleinhendler, Sidney Powell, Julia Haller,
and Scott Hagerstrom appeal together, arguing primarily that none of their conduct was
sanctionable.
II.
We review the district court’s imposition of sanctions for an abuse of discretion and its
factual findings for clear error. Salkil v. Mount Sterling Twp. Police Dept., 458 F.3d 520, 527
(6th Cir. 2006); Chambers v. NASCO, Inc., 501 U.S. 32, 55 (1991).
A.
We begin with Rule 11, which in the district court’s view authorized almost all the
sanctions awarded here. That rule provides, in relevant part, that attorneys who present a
pleading or motion to the court thereby certify that:
to the best of the person’s knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances:
(1) [the pleading, written motion, or other paper] is not being presented for
any improper purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing
law or by a nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law; [and]
(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery[.]
Fed. R. Civ. P. 11(b)(1)-(3).
1.
As an initial matter, the district court held that the attorneys filed their suit for an
improper purpose, in violation of Rule 11(b)(1). Specifically, the court asserted that “what very
clearly reflects bad faith is that Plaintiffs’ attorneys are trying to use the judicial process to frame
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a public ‘narrative.’” But another word for “framing a public narrative” is speech; and Rule 11
cannot proscribe conduct protected by the First Amendment. True, an attorney may not say
whatever she likes inside a courtroom. See Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir. 2005).
But an attorney’s political speech outside a courtroom—including political speech about a
lawsuit—is irrelevant to a Rule 11 inquiry about the suit itself. To the contrary, parties and their
attorneys are free to use litigation “as a vehicle for effective political expression and
association[.]” In re Primus, 436 U.S. 412, 431 (1978). That is as true in election cases as in
any other case.
Speech outside the courtroom is what the district court apparently found objectionable
here. But that speech did not show that counsel were “motivated by improper purposes such as
harassment or delay,” which means it was irrelevant to the district court’s inquiry. First Bank of
Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 519 (6th Cir. 2002). And contesting
election results is not itself an improper purpose for litigation. See, e.g., Bush v. Gore, 531 U.S.
98 (2000); Moss v. Bush, 828 N.E.2d 994 (Ohio 2005); Coleman v. Ritchie, 762 N.W.2d 218(Minn. 2009). Nor does the record show that counsel were otherwise motivated by improper
purposes. First Bank, 307 F.3d at 519. Thus, the district court did not identify any improper
purpose supporting the imposition of sanctions under Rule 11(b)(1).
2.
The district court also sanctioned plaintiffs’ counsel under Rule 11(b)(3), which mandates
that attorneys engage in a reasonable prefiling inquiry to ensure that a pleading or motion is
“well grounded in fact[.]” Merritt v. Int’l Ass’n of Machinists and Aerospace Workers, 613 F.3d
609, 626 (6th Cir. 2010). Rule 11 also imposes an implied “duty of candor,” which attorneys
violate whenever they misrepresent the evidence supporting their claims. Rentz v. Dynasty
Apparel Indus., Inc., 556 F.3d 389, 395 (6th Cir. 2009). Thus, a court may sanction attorneys
under Rule 11(b)(3) for factual assertions they know—or after reasonable investigation should
have known—are false or wholly unsupported.
The first amended complaint contained 233 numbered paragraphs and over 800 pages of
exhibits. Of the complaint’s allegations, 60 are irrelevant for purposes of Rule 11 because they
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quoted legal standards or described undisputed facts. The remaining paragraphs fall into three
categories, to wit: allegations about Dominion’s voting systems; allegations about statistical
anomalies in the election results; and allegations about misconduct by election workers in
Detroit.
a.
According to plaintiffs, the election fraud began “with the election software and hardware
from Dominion Voting Systems.” Compl. ¶4. Counsel devoted 61 paragraphs of the complaint
to allegations about Dominion. Those paragraphs make out the following theory: that “foreign
oligarchs and dictators” founded Dominion in order to help Hugo Chavez manipulate
Venezuelan elections; that Dominion accordingly designed its software to include hidden
“ballot-stuffing” features; and that foreign states—along with Michigan’s Governor and
Secretary of State, apparently—then exploited those features during the 2020 Presidential
elections. Compl. ¶4-12, 125-174.
i.
The complaint said the following about Dominion’s origins:
Smartmatic and Dominion were founded by foreign oligarchs and dictators to
ensure computerized ballot-stuffing and vote manipulation to whatever level was
needed to make certain Venezuelan dictator Hugo Chavez never lost another
election. See Ex. 1 Redacted Declaration of Dominion Venezuela Whistleblower
(“Dominion Whistleblower Report”). Notably, Chavez “won” every election
thereafter.
Compl. ¶5. The plaintiffs’ sole evidentiary support for these allegations was the so-called
“Dominion Whistleblower Report”—allegedly authored by an unnamed “adult of sound mine
[sic]” who purported to be a former member of Chavez’s national guard. Yet the whistleblower
report itself says nothing about Dominion’s founding; instead, it describes a conspiracy “between
a company known as Smartmatic” and “the Venezuelan government.” Smartmatic is not
Dominion, just as General Motors is not Ford. The report otherwise says that Dominion “relies
upon software that is a descendant of the Smartmatic Election Management System.” But the
complaint’s allegation that Dominion was founded as part of a Venezuelan conspiracy to commit
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election fraud was entirely baseless. The district court rightly concluded that this whole raft of
allegations was sanctionable.
ii.
The complaint also alleged that Dominion’s voting systems were easy to hack and
impossible to audit. By way of background, according to a journal article that plaintiffs attached
to the complaint, modern election-management systems come in three kinds. One is a hand-
marked paper-ballot system, in which voters manually complete a blank ballot and then take it to
a machine to be scanned and tabulated. Another is a ballot-marking system, in which voters
make their selections on a touch screen and receive a printed, marked ballot to take to the
scanner. And in an all-in-one system, a single machine marks, scans, and tabulates the ballots
without further action by the voter.
The problem with the complaint’s allegations regarding Michigan’s voting system,
simply enough, is that they concerned different kinds of systems than the one Michigan used. As
any Michigan voter could have told counsel, Michigan used a hand-marked ballot system—
which one of the plaintiff’s own exhibits, an article by Dr. Andrew Appel, said is “the only
practical technology for contestable, strongly defensible voting systems.” That plaintiffs
attached Appel’s article in support of their criticisms of Michigan’s voting system illustrates how
little counsel understood about the system they were criticizing. Similarly, the complaint alleged
(by way of the Chavista whistleblower) that a “core requirement of the Smartmatic software
design ultimately adopted by Dominion for Michigan’s elections was the software’s ability to
hide its manipulation of votes from any audit.” Compl. ¶7. But hand-marked ballots obviously
can be recounted (and thus audited) by hand. The complaint likewise alleged that “Michigan
officials disregarded all the concerns that caused Dominion software to be rejected by the Texas
Board of elections in 2020 because it was deemed vulnerable to undetected and non-auditable
manipulation.” Compl. ¶10. We set to one side that the “Texas decision” came after the relevant
decision by “Michigan officials.” For the Texas decision on its face concerned a ballot-marking
system, not the hand-marked system that Michigan used. And Michigan’s contract with
Dominion, likewise an exhibit, was limited to the hand-marked ballot system.
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Plaintiffs’ own exhibits thus refuted rather than supported the complaint’s allegations
about the Dominion system used in Michigan. And an adequate prefiling inquiry under Rule 11
includes reading every document one plans to file. See, e.g., Garr v. U.S. Healthcare, Inc., 22
F.3d 1274, 1278, 1281 (3d Cir. 1994) (observing that “[w]e are at a total loss to understand how
attorneys can urge that they have made a reasonable inquiry into the facts and law of a case when
their complaint is predicated on allegedly false statements in documents which they have not
bothered to read.”). Plaintiffs’ inquiry as to these allegations was patently inadequate.
iii.
Plaintiffs’ counsel sought to bolster their theories about Dominion with two putative
expert reports. Attorneys are rarely sanctioned for relying upon experts: expert testimony by
definition rests on “specialized knowledge[,]” Fed. R. Evid. 702, and consulting an expert is
itself a way to investigate a claim’s factual plausibility. But there is no Rule 702 exception to
Rule 11; an attorney’s reliance upon a putative expert opinion must itself meet the standard of
reasonableness imposed by Rule 11. That means the expert’s opinion must not be unreliable on
its face—either because of the expert’s lack of qualifications, or the substance of the opinion
itself. And the attorney cannot misrepresent what the expert himself actually says.
Here, as to the alleged international conspiracy, the complaint alleged that “Dominion
software was accessed by agents acting on behalf of China and Iran in order to monitor and
manipulate elections.” Compl. ¶17. The sole basis for that allegation was the report of what the
complaint called a “former electronic intelligence analyst with 305th Military Intelligence with
experience gathering SAM missile system electronic intelligence.” Compl. ¶17. But that
“intelligence analyst” turned out to be a Dallas IT consultant who dropped out of an entry-level
intelligence course after seven months’ training. And even a cursory review of his putative
report shows that it concerned the integrity of Dominion’s public website, not its voting
machines. That distinction should not have been hard for counsel to keep straight. And the
complaint further misrepresented the report when the complaint alleged that “Dominion allowed
foreign adversaries to access data and intentionally provided access to their infrastructure”
(emphasis added). Compl. ¶161-162. That allegation was utterly baseless.
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The attorneys also presented an affidavit from Russell Ramsland to substantiate their
suspicion that foreign powers had hacked into Dominion’s machines. Ramsland said that his
background included “advanced converged telecom, highly advanced semiconductor materials,
hospitality, commercial real estate development & operation,” as well as running “Europe’s
highest grossing Tex-Mex restaurant.” His specialized knowledge as to foreign election-
interference was thus questionable on its face. More to the point, Ramsland claimed that
Dominion machines had been “manipulated” in “four precincts/townships” in four Michigan
counties (Wayne, Oakland, Macomb, and Kent), which he said resulted in “289,866 illegal
votes.” Ramsland’s theory was that the Dominion machines used in those counties—which he
said were “Model DRM16011”—lacked the “processing capacity” to count as many ballots as
were counted in the relevant precincts on election night. But Ramsland likewise assumed that
those counties used a ballot-marking system nowhere used in Michigan, which showed that he
did not know which machines were used in Michigan—meaning that his assumptions about
“processing capacity” were baseless. Moreover, a simple internet search would have shown that
Macomb and Oakland counties did not use Dominion systems at all.
A reasonable prefiling investigation would have shown counsel that their allegations
about Dominion were baseless. Those allegations were therefore sanctionable under Rule
11(b)(3).
b.
i.
In another part of the complaint—covering about 19 paragraphs—counsel relied upon
several putative expert reports to allege that Michigan’s election results were statistically
anomalous or impossible. The complaint alleged that “evidence compiled by Matt Braynard
using the National Change Address Database” showed that 13,248 voters who had moved to
another state had nonetheless illegally voted in Michigan. Compl. ¶119. But Braynard’s opinion
came in the form of four tweets, each 280 characters or less, which said nothing about his
qualifications or the data he supposedly employed. That opinion was unreliable on its face;
counsel violated Rule 11 by relying upon it.
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Counsel also relied on a report by Dr. William Briggs, who—according to the
complaint—opined that “Approximately 30,000 Michigan Mail-In Ballots Were Lost, and
Approximately 30,000 More Were Fraudulently Recorded.” See Compl. ¶108-112. But Briggs
drew that conclusion by taking as true a second Braynard document, the so-called “Braynard
Survey.” That survey purported to describe Braynard’s “multi-state phone survey data of 248
Michigan voters.” Suffice it to say that Briggs’s statistical extrapolations from that survey—
30,000 lost absentee ballots, and 30,000 fraudulent ones—were facially unreliable as well.
The complaint likewise cited Dr. Stanley Young, who asserted that Biden’s gains over
Trump among new voters in nine large, metropolitan counties (e.g., Oakland, Washtenaw,
Wayne, Kent, Kalamazoo) were “unexpected.” According to Young, Biden received 190,000
“excess” votes in those counties because Biden’s margin of victory there was 190,000 votes
greater than Clinton’s margin had been in 2016. Every one of those counties has a large
suburban population, which suggests a simpler explanation than an international conspiracy for
that shift in votes. And by Young’s logic, Trump received an “excess” of 29,000 votes in the
rest of Michigan. Still, counsel could have reasonably relied on Young’s opinion that this shift
was unexpected. What the complaint actually said, however, was that “Dr. Young’s analysis
indicates that, when the entire State of Michigan is concerned, there were likely over 190,000
‘excess’ and likely fraudulent votes, which once again is significantly larger than Biden’s
154,188 margin in Michigan.” Compl. ¶118 (emphasis added). An “unexpected” shift in
suburban votes in Young’s report thus became, in the complaint, 190,000 fraudulent votes that
swung the election. That allegation misrepresented Young’s report and was sanctionable. See
Rentz, 556 F.3d at 395.
ii.
Plaintiffs’ reliance on four other experts was not sanctionable. First, the complaint
accurately stated Dr. Louis Bouchard’s conclusion that several spikes in Biden’s vote count in
Michigan on election night were “statistically impossible.” Compl. ¶122. Dr. Bouchard’s
reasoning was that “the election results” showed “a tight race” in both Florida and Michigan; that
Biden’s vote total in Florida had no corresponding spike; and thus the spikes in Michigan were
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“anomalous.” The proposition that Michigan’s reporting of vote totals should track Florida’s is
without support; but Bouchard’s technical analysis was not facially unreasonable to a layperson.
Second, Thomas Davis asserted that the share of Democrats who voted by absentee ballot
exceeded the share of Republicans who did so by a similar percentage throughout the state—
which, in Davis’s view, suggested that a computer algorithm had manipulated the vote count.
Occam’s Razor suggests that Democrats just voted absentee more than Republicans did, but
Davis’s opinion—that the consistency of this difference across counties was suspicious—was not
unreasonable on its face.
Third, Dr. Eric Quinnell and Dr. Young together opined that Michigan’s election results
were “mathematically anomalous,” because, they said, the new voters in several Michigan
townships mostly voted for Biden. Their report appears to assume that everyone who voted for
Trump in 2016 voted for him again in 2020, that everyone who voted for Clinton in 2016 voted
for Biden in 2020, and that Biden then took an outsized share of “new” voters. Although those
assumptions might be implausible, we cannot say this opinion was facially unreasonable.
Finally, Robert Wilgus asserted that the number of absentee ballots that voters requested
and returned on the same day warranted “further investigation.” The Michigan Constitution
enables voters to do both of those things on the same day, so Wilgus’s assertion that doing so
warrants investigation is dubious. See Mich. Const. Art II, § 4(h). But his conclusion was tepid
enough not to be facially unreasonable.
c.
A third part of the complaint comprised 79 paragraphs of allegations about misconduct at
the “TCF Center,” which is where “Absentee Voter Counting Boards” counted all of Detroit’s
absentee ballots.
i.
The complaint’s most provocative allegation as to these boards was that they
“fraudulently added tens of thousands of new ballots and new voters in the early morning and
evening of November 4.” Compl. ¶82 (capitalization removed). “Perhaps the most probative
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evidence” in support of this allegation, according to the complaint, came from the affidavit of
Dominion employee Melissa Carone. Compl. ¶84. She wrote:
There was two vans that pulled into the garage of the counting room, one on day
shift and one on night shift. These vans were apparently bringing food into the
building because they only had enough food for not even 1/3 of the workers. I
never saw any food coming out of these vans, coincidentally it was announced on
the news that Michigan had discovered over 100,000 more ballots—not even two
hours after the last van left.
On the basis of this affidavit, the complaint alleged that Carone had “witnessed” an “illegal vote
dump, as well as several other violations.” Compl. ¶84. That allegation illustrates the
complaint’s pattern of embellishment to the point of misrepresentation. The only thing that
Carone said she witnessed was the arrival of “two vans”—period. Powell and her co-appellants
now concede that “Carone made it clear she had seen no ballots.” Reply at 24. That means it
was sanctionable to allege that she did. Rentz, 556 F.3d at 395.
Counsel also used two affidavits copied from a state-court case—Constantino v.
Detroit—to support the “illegal vote dump” theory. The attorneys used the first affidavit, from
election challenger Robert Cushman, to allege that “several thousand” ballots had been
“fraudulently” counted at TCF. Compl. ¶83. Cushman was apparently a layperson as to election
law; and in Constantino, Christopher Thomas—who served as Michigan’s Director of Elections
for over 30 years—submitted a detailed affidavit explaining that none of Cushman’s
observations suggested any violation of Michigan election law. Plaintiffs’ counsel were not
required to treat Thomas’s affidavit as sacrosanct. But a reasonable prefiling inquiry—before
renewing Cushman’s allegations of fraud—would have included review of Thomas’s explanation
and a reasoned assessment as to whether those allegations remained plausible. The record here
reveals no such inquiry on counsel’s part.
The second affidavit from Constantino came from election challenger Andrew Sitto, who
wrote in relevant part:
At approximately 4:30 a.m., tens of thousands of ballots were brought in and
placed on eight long tables. Unlike the other ballots, these boxes were brought in
from the rear of the room. The same procedure was performed on the ballots that
arrived at approximately 4:30 a.m., but I specifically noticed that every ballot I
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observed was cast for Joe Biden. While counting these new ballots, I heard
counters say at least five or six times that all five or six ballots were for Joe
Biden. All ballots sampled that I heard and observed were for Joe Biden.
An attorney could legitimately use an affidavit like Sitto’s to begin (rather than end) a
line of inquiry regarding potential counting irregularities. But counsel here cited Sitto’s affidavit
as proof of “[t]he most egregious example of election workers’ fraudulent and illegal behavior”
at the TCF Center. That too was a gross exaggeration. Sitto did not say that the “tens of
thousands of ballots” he saw were fraudulent. Compl. at ¶82. Nor did he say that election
workers treated those ballots any differently from any others—to the contrary, he said the
counters followed the “same procedure” as before. And though Sitto said that “every ballot” he
observed was for Biden, his affidavit implied that he heard only 30 or so of the votes that were
counted.
The complaint also cited an affidavit from Articia Bomer, who said she “believe[d]” that
some of the counters at TCF “were changing votes that had been cast for Donald Trump and
other Republican candidates.” The complaint called this “eyewitness testimony of election
workers manually changing votes for Trump to votes for Biden[.]” Compl. at ¶91. That too was
an embellishment, considering that Bomer offered no basis for her belief.
Considered both individually and collectively, the affidavits cited in the complaint did
not afford counsel a credible basis to allege that “tens of thousands” of fraudulent votes were
counted at TCF. Those allegations therefore lacked the requisite basis in evidence. Fed. R. Civ.
P. 11(b)(3).
ii.
The complaint also alleged various lesser violations of Michigan election law. The
problem with those allegations, simply stated, is that counsel apparently did not read the statute
they said was violated. For instance, the complaint includes 11 paragraphs of allegations about
problems with verification of signatures and birthdates on absentee ballots at the TCF Center.
But Michigan law does not require birthdate verification for absentee voters. See M.C.L.
§ 168.765a. Nor do the counting boards verify any signatures for the absentee ballots; instead,
by the terms of the same statute, the city clerk’s office would have already done that before the
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ballots reached the TCF Center. See M.C.L. § 168.765a(6) (absentee ballots delivered to absent-
voter counting boards “must be” accompanied by “a statement by the clerk that the signatures of
the absent voters on the envelopes have been checked and found to agree with the signatures of
the voters on the registration cards”). The complaint did not allege otherwise; its allegations
about improper verification at the TCF Center were therefore baseless.
Counsel similarly alleged that voters who had requested absentee ballots later illegally
voted in person. But the same statute specifies that Michigan law “does not prohibit an absent
voter from voting in person within the voter’s precinct at an election, notwithstanding that the
voter may have applied for an absent voter ballot and the ballot may have been mailed or
otherwise delivered to the voter.” M.C.L. § 168.765a(7). And where the complaint did
specifically allege double voting—as in paragraph 93—it misrepresented the supporting
affidavit, which said only that some people who voted in person “had already applied for an
absentee ballot.” (Emphasis added).
Of a piece was the complaint’s allegation that election challengers had been improperly
barred from observing the “ballot-duplication” process (meaning the process by which ballots
that cannot be read by a machine are hand-copied onto ballots that can be scanned). See
Compl. ¶13, 76-77, 189. For the same statute says that “at least 1 election inspector from each
major political party” must witness the duplication. M.C.L. § 168.765a(10) (emphasis added).
Under Michigan law, “challenger” and “inspector” mean two different things: election
challengers are party volunteers with no official training in election procedure, whereas election
inspectors are officials appointed by the Board of Election Commissioners. M.C.L. §
168.765a(2). The complaint unwittingly used those terms interchangeably; and nowhere does it
suggest that anyone barred an election inspector from observing the ballot-duplication process.
The statute at issue here ran three pages; a reasonable prefiling inquiry as to all these
allegations would have included reading it.
iii.
The complaint’s remaining allegations about election-related events at TCF Center were
not sanctionable. One witness said she had seen an election worker manually correct ballots that
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the witness thought should have been discarded as “over-votes”; the complaint fairly repeated
that allegation. The same was true as to allegations by two challengers who thought they had
seen someone move “spoiled” ballots to a “to be counted” pile. And counsel reasonably relied
on the affidavit of one woman who said she had seen a voting record for her late son, purportedly
reflecting that, after his death, he had voted in the 2020 election.
The complaint’s most credible allegations were that election workers at the TCF Center
mistreated, intimidated, and discriminated against Republican election challengers. Indeed some
three dozen detailed affidavits supported the complaint’s allegations to that effect. Those
affidavits were notably consistent in their description of partisan hostility at the TCF Center. For
instance, election challenger Abbie Helminen attested that, when the police removed a
(presumably Republican) election challenger from the center, “the whole room erupted in claps
& cheers, this included the poll workers.” She also said that “Democrats outnumbered
Republicans by at least 2:1.” Similarly, Anna Pennala wrote that she “witnessed a pattern of
chaos, intimidation, secrecy, and hostility by the poll workers,” and that she saw workers “cheer,
jeer, and clap when poll challengers were escorted out.” And Emily Steffans wrote that she was
“afraid . . . to challenge any ballots” because she “had watched two GOP people escorted out by
the police,” again to cheers from “democrat volunteers and poll workers at the table.”
The intimidation and harassment alleged in these affidavits was potentially criminal. See
M.C.L. § 168.734 (“Any officer or election board who shall prevent the presence of any such
challenger as above provided, or shall refuse or fail to provide such challenger with
conveniences for the performance of the duties expected of him, shall, upon conviction, be
punished by a fine not exceeding $1,000.00, or by imprisonment in the state prison not exceeding
two years”). And the rank partisanship among election workers described in these affidavits
undermines public confidence in elections just as much as bogus allegations about voting
machines do. The district court should not have dismissed these affiants’ allegations out of hand.
3.
The district court next held that the entire complaint was independently sanctionable
under Rule 11(b)(2). That rule requires attorneys to certify that “the claims, defenses, and other
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legal contentions” in their filings “are warranted by existing law or by a nonfrivolous argument
for extending, modifying, or reversing existing law or for establishing new law.” Fed. R. Civ. P.
11(b)(2). Thus, in short, frivolous “legal contentions” are sanctionable under Rule 11(b)(2).
a.
Three of the complaint’s legal claims—an equal-protection claim, a due-process claim,
and a claim under the Michigan Constitution—relied exclusively on frivolous allegations of
widespread voter fraud. That means those claims were already sanctionable in full under Rule
11(b)(3). Thus, we need not consider whether the legal contentions in support of the complaint’s
voter-fraud claims were sanctionable under Rule 11(b)(2) as well.
b.
The defendants argue that the plaintiffs’ remaining claims rested on frivolous legal
contentions. A legal contention is frivolous if it is “obviously without merit” under existing law
and unsupported by a good-faith argument to change or extend the law. Fed. R. Civ. P. 11(b)(2);
Waldman v. Stone, 854 F.3d 853, 855 (6th Cir. 2017) (discussing frivolous claims under
Appellate Rule 38).
i.
As an initial matter, counsel never should have asserted any claims against the Board of
Canvassers in this case. The Board is a state agency; and unless the state waives Eleventh
Amendment immunity or Congress abrogates it, state agencies are immune from federal suit.
Boler v. Earley, 865 F.3d 391, 410 (6th Cir. 2017). Here, the state did not waive immunity and
Congress did not abrogate it, and plaintiffs have never argued otherwise. Hence the Board was
indisputably entitled to sovereign immunity. Id. Moreover, the Board had already certified the
election results by the time of plaintiffs’ suit, and thus lacked power to redress any of plaintiffs’
alleged harms. Hence the plaintiffs also lacked standing to sue the Board. See Parsons v. U.S.
Dept. of Justice, 801 F.3d 701, 715-16 (6th Cir. 2015). The legal contentions in support of these
claims, therefore, were frivolous. See Waldman, 854 F.3d at 855.
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ii.
That leaves two federal claims against Governor Whitmer and Secretary Benson and a
handful of state claims. The first federal claim was one under 42 U.S.C. § 1983 for alleged
violations of the Elections and Electors Clauses of the Constitution. The theory behind that
claim, as set forth in the complaint, was that the Governor and the Secretary of State
“unilaterally” chose to “deviate from the requirements of the Michigan Election Code.” Compl.
¶23, 179. That this claim was one of “unilateral” action means it depended on actions specific to
the Governor and Secretary themselves. Yet the complaint alleged no such actions, apart from a
conclusory allegation in the complaint’s introduction (¶3) about “multifaceted schemes and
artifices implemented by Defendants and their collaborators[.]” And that allegation itself
obviously could not support this claim. See Ashcroft v. Iqbal, 556 U.S. 662 (2009). This claim
was therefore both legally and factually frivolous.
A second § 1983 claim against the Governor and Secretary was one for selective
enforcement of election law, in violation of the Fourteenth Amendment’s Equal Protection
Clause. That claim presents a close question. As explained above, counsel had an evidentiary
basis for pleading that Republican challengers were disproportionately excluded from and
otherwise discriminated against in the TCF Center. To make out a selective-enforcement claim,
counsel would have needed to plead that state actors “intended to accomplish some forbidden
aim” through a “truly discriminatory application of a neutral law.” Stemler v. City of Florence,
126 F.3d 856, 874 (6th Cir. 1996). Although counsel spent only a single paragraph of the
complaint on this theory (¶189), that paragraph was a nonfrivolous attempt to state those
elements. Counsel also requested injunctive relief targeting the alleged harms. Compl. ¶194.
That is not to say the claim would have survived a motion to dismiss. For instance, the
complaint did not explain what role, if any, the Governor and Secretary played in the law’s
discriminatory application. On balance, however, this claim was “meritless rather than
frivolous.” See Waldman, 854 F.3d at 855. Hence it was not sanctionable under Rule 11(b)(2).
The complaint also asserted several state-law claims against the Governor and Secretary.
We have already explained that counsel’s claims under the absentee-voting statute were
sanctionable because the complaint failed to describe any violations of that statute. See M.C.L.
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§ 168.765(a). Likewise frivolous was the complaint’s attempt to state a claim under M.C.L.
§ 168.734, which merely sets forth certain criminal penalties for mistreatment of election
challengers. But the complaint’s claim under a neighboring election-challenger provision,
M.C.L. § 168.733, was not frivolous. That claim had a factual basis, as described above.
Although that provision also does not expressly create a private cause of action, its terms—e.g.,
“[a] person shall not threaten or intimidate a challenger while performing” some 13 different
activities—leave room to argue in good faith that one should be implied under Michigan law.
See Pompey v. Gen. Motors Corp., 385 Mich. 537 (1971). This claim was not frivolous.
c.
The defendants argue that even the complaint’s nonfrivolous claims were sanctionable
because the complaint’s requests for relief were frivolous. But parties can tailor those requests
as the case proceeds, and the complaint here included a request for any “relief as is just and
proper.” Compl. ¶233. That means counsel could have filed this lawsuit without any of the
requests for relief that defendants say were frivolous. Those requests alone therefore do not
render the nonfrivolous legal claims sanctionable. Nor did the district court identify any other
ground to support a determination that the entirety of this complaint was frivolous.
Plaintiffs, for their part, defend the inadequacy of their complaint by pointing to the time
constraints inherent in election contests. But Rule 11 imposes a safe-harbor period to protect
attorneys from sanctions for hasty mistakes. A party may seek sanctions only after providing
notice of the alleged violations, which the opposing party then has 21 days to cure. Fed. R. Civ.
P. 11(c); see also advisory committee’s note to 1993 amendment (“[T]he timely withdrawal of a
contention will protect a party against a motion for sanctions.”). Here, the City sent plaintiffs a
detailed letter specifying the allegedly sanctionable material. Plaintiffs could have avoided
sanctions by abandoning frivolous claims and allegations and concentrating the attention of the
court on what remained. They did not do so, and that is why we uphold much of their Rule 11
sanctions today.
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4.
In sum, therefore, the complaint stated two claims that were nonfrivolous: a selective-
enforcement claim under 42 U.S.C. § 1983, and a state-law claim under M.C.L. § 168.733.
Neither claim was sanctionable under Rule 11. We agree with the district court, however, that
plaintiffs’ other claims were all sanctionable under that rule.
The same analysis for the most part applies to plaintiffs’ motion for a temporary
restraining order. But that motion focused exclusively on election fraud and contained only a
single sentence on plaintiffs’ nonfrivolous allegations about election challengers. With the
exception of that sentence and counsel’s discussion of their experts, then, the motion relied
entirely on allegations that were factually frivolous, and was to that extent sanctionable under
Rule 11.
B.
The defendants also argue, and the district court agreed, that counsel are liable for the
entirety of the defendants’ reasonable attorney’s fees after December 14—because the plaintiffs
failed to dismiss their case after it had concededly become moot. Under 28 U.S.C. § 1927,
courts may award sanctions against an attorney who “multiplies the proceedings in any case
unreasonably and vexatiously.” Courts may award sanctions under this section “when an
attorney knows or reasonably should know that a claim pursued is frivolous” and yet continues
to litigate it. Waeschle v. Dragovic, 687 F.3d 292, 296 (6th Cir. 2012).
Here, plaintiffs themselves asserted in a petition to the Supreme Court that this case
would become moot on December 14, 2020—the date Michigan’s certified electors would cast
their votes. Yet on December 15—when defendants sought plaintiffs’ consent to a voluntary
dismissal—counsel declined on the ground that the district court lacked jurisdiction to dismiss
the case while it was on appeal. That excuse was makeweight: plaintiffs obviously could have
voluntarily dismissed their appeal and complaint alike. Hence they unreasonably multiplied the
proceedings by declining to dismiss their suit. See Lemaster v. United States, 891 F.2d 115, 118
(6th Cir. 1989).
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The sanctioned attorneys now argue that the case gained “new life” when “an alternative
slate of electors for Michigan was advanced in early January.” That formulation is passive for a
reason: what actually occurred in January is that the “alternative slate of electors” purported to
elect themselves for the purpose of casting Michigan’s electoral votes. And counsel do not
explain why any competent attorney would take that self-election seriously for purposes of
persisting in this lawsuit. Moreover, plaintiff’s refusal to dismiss their suit had concrete
consequences for defendants, who were forced to research and brief motions to dismiss that they
should not have needed to file. The district court was right to impose sanctions under § 1927.
Finally, as noted above, the district court also invoked its inherent authority as an
alternative basis for sanctions. But we need not review the court’s exercise of that authority
here. Unlike Rule 11, inherent-authority sanctions require a showing of bad faith in addition to
frivolousness. See Big Yank Corp. v. Lib. Mut. Fire Ins. Co., 125 F.3d 308, 314 (6th Cir. 1997).
The court’s inherent authority therefore does not support sanctions for the matters we have found
non-sanctionable; and as to the sanctionable ones, Rule 11 and § 1927 sufficed.
C.
1.
Some of the attorneys argue they were not responsible for the sanctionable filings in this
case. Upon finding a violation of Rule 11, the court may sanction any attorney who “violated the
rule or is responsible for the violation.” Fed. R. Civ. P. 11(c). An attorney violates the rule
directly by “presenting” an offending pleading to the court, such as “by signing, filing,
submitting, or later advocating it.” Fed. R. Civ. P. 11(b).
Separately, under 28 U.S.C. § 1927, the court may impose sanctions on attorneys whose
conduct “falls short of the obligations owed by a member of the bar to the court.” Salkil, 458
F.3d at 532. Here, the attorneys who appealed individually—Emily Newman, Stephanie Junttila,
and Lin Wood, respectively—each argue they were not responsible for any frivolous filing under
either standard.
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a.
Although Emily Newman’s name appeared on the complaint, she did not file or sign it.
And at the sanctions hearing, Newman said she played only a minimal role in the litigation.
Nobody at the hearing argued otherwise; in fact, Powell told the court that Newman “had no role
whatseoever in the drafting and content of the[] complaints.” And the district court made no
factual findings to suggest that Newman was involved in drafting the complaint, the motion for
preliminary injunction, or any other filing that defended plaintiffs’ frivolous claims. Yet the
court found that Newman was responsible for the complaint because it listed her as “Of
Counsel.” Fed. R. Civ. P. 11(c). The district court thus found Newman responsible more as a
matter of form than as a matter of real responsibility. We therefore reverse the imposition of
sanctions as to Newman.
b.
Stephanie Junttila did not appear in the case until December 8, 2020, by which time the
other attorneys had already filed the complaint and the motion for a preliminary injunction. Yet
the district court found that Junttila had “advocated” those filings—when she argued later that
they were not sanctionable. But to seek relief on a claim is plainly different from arguing later
that the claim was not frivolous. Junttila did only the latter; she never advocated the frivolous
claims themselves. The district court’s reasoning on this point was mistaken.
Junttila did personally decline defendants’ request for a voluntary dismissal. But Junttila
says she lacked the authority to agree to a voluntary dismissal, and nobody argues otherwise. To
the contrary, Powell (to her credit) candidly stated at oral argument that she was responsible for
the decision to continue the case on December 14. We therefore reverse the imposition of
sanctions as to Junttila as well.
c.
Lin Wood says that someone placed his name on the complaint without his consent and
that he knew nothing about this case until he “saw something in the newspaper about being
sanctioned.” But two months before, Wood filed a brief in the Delaware Supreme Court, in
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which he said he “represented plaintiffs challenging the results of the 2020 Presidential election
in Michigan and Wisconsin.” Wood also tweeted about this case in December 2020, six months
before the sanctions hearing, saying that “the enemy is running scared.” Moreover, Powell said
she “did specifically ask Mr. Wood for his permission” to put his name on the complaint; and
Gregory Rohl submitted an affidavit stating that Wood “spearheaded” this suit. Suffice it to say
that the district court did not clearly err when it found Wood not credible as to his involvement
here. Nor, contrary to Wood’s argument, was the district court required to undertake “an
individual analysis” of his conduct before it could sanction him. See NPF Franchising, LLC v.
SY Dawgs, LLC, 37 F.4th 369, 380-81 (6th Cir. 2022).
Wood also argues that the state defendants never sought any sanctions against him. The
state defendants concede that point on appeal. Thus, as to Wood, we reverse only the court’s
award of attorney’s fees to the state defendants.
2.
The remaining attorneys argue that the district court’s sanctions were excessive. The
district court awarded the City and the state defendants their full reasonable attorney’s fees,
required each attorney to take 12 hours of continuing legal education, and sent a referral for
disciplinary proceedings to each attorney’s respective bar association.
a.
Courts must limit any award of attorney’s fees to only “those expenses directly caused”
by the sanctionable conduct. Cooter & Gell v. Hartmarx Corp, 496 U.S. 384, 406-07 (1990).
When a filing is entirely baseless, sanctionable conduct causes every expense reasonably
incurred in responding to it. Id. But when, as here, a filing is partially non-sanctionable, courts
may award only fees incurred in responding to the sanctionable parts. Id.; see also Fed. R. Civ.
P. 11(c)(4); Garner v. Cuyahoga Cnty. Juv. Ct., 554 F.3d 624, 635-47 (2009).
Here—given the district court’s finding that the entire complaint was sanctionable—the
court did not distinguish between fees generated in response to sanctionable and non-
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sanctionable parts of the complaint. But courts are loath to prolong satellite litigation about fees,
and here the record allows us to sort out those fees for ourselves.
i.
The district court awarded the state defendants $21,964.75 for 57.8 hours of work by two
attorneys. The state attorneys’ billing records show they spent about 6 hours responding in
various ways to nonfrivolous parts of the complaint, including review of the expert reports on
which counsel reasonably relied. Given the hourly rates for the attorneys involved, that work
amounted to $2,325 in fees. We therefore reduce the fee award to the state defendants to
$19,639.75.
The district court awarded the City $153,285.62, about $30,000 less than it had requested.
The City’s billing records show that its attorneys spent approximately 26 hours responding to the
nonfrivolous components of plaintiffs’ complaint and preliminary-injunction motion. This work
amounted to $8,450 in fees, which we will deduct from the City’s award.
Wood argues that the City’s fee award included too many hours related to the sanctions
litigation. “The time, effort, and money a party must spend to get another party sanctioned
realistically is part of the harm caused by that other party’s wrongful conduct.” Norelus v.
Denny’s Inc., 628 F.3d 1270, 1298 (11th Cir. 2010). Thus, under Rule 11 a court may award
fees incurred while pursuing sanctions. Id.; see also Chambers, 501 U.S. at 32.
The record here, however, shows that the district court awarded fees for a number of
tasks that bore little connection to sanctionable conduct in this case. Those tasks included, for
example, reviewing a Michigan State Senate report about the elections, and responding to filings
by intervenor Davis, whose involvement in the case was no fault of plaintiffs’ counsel. The
billing records show that together these tasks consumed about 37.5 hours, which amounted to an
additional $12,025 in attorney’s fees. The district court abused its discretion when it included
those fees in the City’s award. See Cooter & Gell, 496 U.S. at 406. With both of these
deductions, then, we reduce the City’s award to $132,810.62.
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The sanctioned attorneys also argue that, as an intervenor, the City should not receive
more in attorney’s fees than the original defendants did. That argument is meritless: the City
was all but compelled to intervene in this case, given (among other things) the plaintiffs’ request
that all the absentee ballots from the City’s residents be “eliminat[ed]” from the vote count.
Compl. ¶232.
ii.
The attorneys’ remaining objections concern the court’s non-monetary sanctions—
namely the disciplinary referrals and the required legal education. As an initial matter, we reject
the state defendants’ argument that the attorneys’ appeal of those sanctions is moot. Non-
monetary sanctions cause continuing harm to counsel’s reputation as attorneys, and thus present
a live controversy even after an attorney complies with them. See, e.g., United States v. Talao,
222 F.3d 1133, 1138 (9th Cir. 2000); In re Goldstein, 430 F.3d 106, 111 (2d Cir. 2005).
But we reject the attorneys’ arguments on the merits. They assert that the district court
violated the local rule governing disciplinary referrals; but that rule permits such referrals rather
than proscribes them. See E.D.M.I. Local Rule 83.22(c). Nor do the nonmonetary sanctions
violate the First Amendment. See Mezibov, 411 F.3d at 717.
* * *
We reverse the district court’s imposition of sanctions against Emily Newman and
Stephanie Junttila, respectively; we reverse the state defendants’ fee award as to Lin Wood; we
reduce the City’s award to $132,810.62; and we reduce the state defendants’ fee award to
$19,639.75. Otherwise, the district court’s imposition of sanctions in its August 25, 2021 order
is affirmed.